ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 10, 2002

MELVIN DULANEY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-1150

APPEAL FROM THE CIRCUIT COURT OF CRAIGHEAD COUNTY, NO. CR 95-236 HONORABLE DAVID BURNETT, JUDGE

AFFIRMED

Appellant was convicted of possession of a controlled substance, being a felon in possession of a firearm, and simultaneous possession of drugs and firearms. The circuit court revoked appellant's probation in Case No. CR 91-97 and sentenced him to an aggregate of thirty-four years' imprisonment. This court affirmed the convictions in Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Appellant filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging ineffective assistance of counsel. A hearing was held, and the circuit court denied appellant's petition but reduced the sentence for the probation revocation from seven to three years. Appellant appealed, and this court reversed and remanded the case for written findings of fact and conclusions of law pursuant to Rule 37.3(c). Dulaney v. State, 338 Ark. 548, 999 S.W.2d 181 (1999). The circuit court complied and entered written findings denying postconviction relief. From that order comes this appeal.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counsel or by revealing that counsel's failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearlyagainst the preponderance of the evidence. Noel, supra.

Appellant's first claim of ineffective assistance is that trial counsel failed to properly move for a directed verdict at the close of the State's case and again at the close of all evidence, thereby waiving appellant's right to appeal the sufficiency of the evidence. Appellant's second claim is that trial counsel was ineffective by failing to specifically argue in his motions for directed verdict that there was insufficient evidence at trial to show that appellant possessed either the drugs or the weapons seized from his home and that appellant had access to the weapons discovered to justify his conviction for simultaneous possession of drugs and firearms. Appellant argues had trial counsel been specific in his motions, there would have been a different outcome on direct appeal.

According to § 5-64-401(c) (Supp. 1995):

It is unlawful for any person to possess a controlled substance or counterfeit substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter.

In 1995, cocaine was a Schedule II controlled substance. See Washington v. State, 319 Ark. 583, 586, 892 S.W.2d 505, 506 (1995); see also Ark. Code Ann. 5-64-205 (Repl. 1993).

The State need not prove that appellant had actual possession of the drugs in order to convict him of possession of a controlled substance. Darrough v. State, 322 Ark. 251, 253, 908 S.W.2d 325, 326 (1995). Constructive possession is sufficient. Id. Constructive possession is control or right to control the contraband and can be implied where the contraband is found in a place immediately and exclusively accessible to appellant and subject to his control. Id. at 252-53.

In its order, the circuit court noted that the trial testimony of Officers Rusty Grigsby, Danny Smith, and Larry Garrison established that this case was a result of the execution of a search warrant by the aforesaid officers and that at the time the search warrant was executed, appellant was the onlyperson present at the residence. Appellant advised Grigsby that he lived in the residence with his two daughters. The officers' testimony also established that the following items were seized during the search of appellant's residence: a 12 gauge shotgun found in the southwest bedroom closet; a cigarette butt containing cocaine found in the pocket of housecoat worn by appellant; a baggie containing 4.189 grams of 95.9% cocaine hydrochloride found in plain view in the kitchen; a receipt from Real Estate Rental, Inc. made out to appellant which reflected rental payment by appellant on the residence searched; a Tylenol bottle containing 22 blue pills, which were later found to be Alprazolam, found in the northwest bedroom; a package of J&B rolling papers found on the dresser in the northwest bedroom; a Dial-A-Page pager found in the kitchen; a RG .22 caliber revolver with the serial number scratched off and loaded with four shells found in the closet of the northwest bedroom, which appeared to be appellant's bedroom; a marijuana butt containing cocaine found on the floor of what appeared to be appellant's bedroom; a baggie containing .8 grams of marijuana found in the kitchen cabinet; and two hand-rolled cigarette butts, one containing cocaine, found on the kitchen cabinet.

The circuit court found that a directed verdict motion would not have been granted given the proof presented above; therefore, appellant failed to show how he was denied a fair trial if such motion was not properly made. The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Britt v. State, 334 Ark. 142, 150, 974 S.W.2d 436, 439 (1998). We find that there was substantial evidence presented to support the jury's verdict that appellant possessed the drugs and weapons seized from his home.

In addition, appellant also claims that there was insufficient evidence to justify his conviction for simultaneous possession of drugs and firearms. Under Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1993), no person shall unlawfully commit a felony violation of § 5-64-401 while in possession ofa firearm. Given the substantial evidence presented above, we find that appellant's conviction for simultaneous possession of drugs and firearms was justified. Not only was appellant in possession of drugs and firearms, there was the necessary "link between the firearms and the drugs." Manning v. State, 330 Ark. 699, 703, 956 S.W.2d 184, 187 (1997). As evidenced by the testimony of the three officers, the weapons recovered from appellant's home were in close proximity to the cocaine and readily accessible to appellant. Therefore, there was substantial evidence to convict appellant of simultaneous possession of drugs and firearms, and the denial of appellant's claim is affirmed.

Appellant's third claim is that trial counsel failed to adequately move to suppress certain evidence because of the method by which the search warrant was executed. Appellant claims that he gave trial counsel the names of two witnesses who would testify that the officers did not "knock and announce" before entering appellant's residence; rather, the officers busted the door down and entered. However, the circuit court, following the Rule 37 hearing, did not issue a ruling on this claim. We have repeatedly said that the failure to obtain a ruling on Rule 37 issue at the trial court level, including a constitutional issue, precludes review on appeal. Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998). Therefore, this claim is procedurally barred.

Appellant's fourth claim is that trial counsel was ineffective for failing to object or request a mistrial in response to prosecutor's references in closing argument to the controlled buy that took place in appellant's home on May 4, 1995. Appellant claims that these remarks were improper, as there was no evidence presented during trial of a controlled buy and that the remarks "injected an actual sale of drugs into this case and influenced the jury." Again, the circuit court did not issue a ruling on this claim, following the Rule 37 hearing, therefore, the claim is procedurally barred. See Matthews, supra.

Appellant's fifth claim is that trial counsel was ineffective for advising appellant to take thestand and expose his prior criminal record. According to appellant, trial counsel should have rested on the motion for directed verdict at the end of the State's case or introduced witnesses that could have established that another person owned the items found in appellant's home. The circuit court found that counsel's decision was a matter of trial strategy that did not fall beyond the scope of what a competent attorney would recommend. We agree.

The decision to testify was appellant's to make. See Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000). Trial counsel's advice on the issue was one of strategy and not grounds for relief under Rule 37. Id.

We have held that:

The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Helton v. State, 325 Ark. 140, 924 S.W.2d 239 (1996). Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to his client. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996). When assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment pursuant to the standards set forth in Strickland. State v. Dillard, supra.

Nelson v. State, 344 Ark. 407, 412, 39 S.W.3d 791, 795 (2001).

Trial counsel testified that he and appellant never talked about calling witnesses because appellant was going to plead guilty until a few days prior to trial. Appellant claims trial counsel should have called his former girlfriend to testify that she also lived in appellant's home. However, she was no where to be found, and appellant testified that he had not had contact with her in two months. Appellant has made no showing of deficiency on the part of trial counsel, as the decision of whether or not to call appellant or other witnesses to testify was not an error so serious thatcounsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, supra.

Appellant also fails to show that he was prejudiced by trial counsel's decision to introduce appellant's testimony or by counsel's failure to call other witnesses to testify on appellant's behalf. As mentioned previously, there was substantial evidence presented to convict appellant. There is no reasonable probability that the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different had trial counsel performed as appellant argues in his petition. See Noel, supra.

Appellant's final claim is that trial counsel was ineffective for failing to seek the identity of the confidential informant who participated in the controlled buy that provided probable cause for the issuance of the search warrant. According to appellant, the affidavit for probable cause and the testimony of the State's witness at the suppression hearing did not disclose reasonable reliance upon the informant's statements nor a reasonable reliance upon the circumstances of the controlled buy. The circuit court found that appellant failed to establish that he was prejudiced by trial counsel's failure to seek the identity of the informant. We decline to consider this issue on appeal, because appellant has failed to abstract the affidavit for probable cause. Without the affidavit, we are unable to determine the basis for the finding of probable cause.

Arkansas Supreme Court Rule 4-2(a)(6) requires an appellant to include an abstract of the record consisting of the material parts of the record that are necessary to an understanding of the questions presented for decision.1 It is the appellant's burden to produce a record sufficient todemonstrate error. Johnson v. State, 342 Ark. 357, 361, 28 S.W.3d 286, 288 (2000). Further, appellant's failure to abstract a critical document precludes this Court from considering issues concerning it. Watson v. State, 329 Ark. 511, 512, 951 S.W.2d 304, 305 (1997). Accordingly, cannot say that the circuit court erred in denying appellant's petition.

Affirmed.

Imber, J., not participating.

1 Cases in which the record is lodged in the Supreme Court or Court of Appeals on or after September 1, 2001, will no longer be affirmed because of the insufficiency of the abstract without the appellant first having the opportunity to cure the deficiencies. See In re: Modification of the Abstracting System -- Amendments to Supreme Court Rules 2-3, 4-2, 4-3, 4-4, Ark. Appx. __, __ S.W.3d __ (2001) (per curiam). The record in the instant case was filed before September 1, 2001.