ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR03-14

September 24, 2003

MICHAEL HARDIMAN AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR00-3170]

V. HON. JOHN PLEGGE, JUDGE

STATE OF ARKANSAS REVERSED AND REMANDED IN PART;

APPELLEE REVERSED AND DISMISSED IN PART

Wendell L. Griffen, Judge

This case arises from the criminal conviction of appellant, Michael Hardiman, for possession of cocaine with the intent to deliver and possession of drug paraphernalia. Appellant argues that (1) the trial court erred in declining to direct a verdict in appellant's favor on the paraphernalia charge, (2) the trial court erred in declining to convict appellant of the lesser-included offense of simple possession of cocaine, and (3) the State's failure to disclose the existence of an exculpatory fingerprint report from the state crime laboratory constituted a state discovery violation and a federal Brady violation. We reverse and remand for resentencing for simple possession, and reverse and dismiss on possession of paraphernalia.

Factual and Procedural History

At appellant's bench trial, the following testimony and evidence developed. On August 23, 2000, the Pulaski County Sheriff's Department executed a search warrant at a house belonging to appellant's mother. The search warrant resulted from the testimony of a confidential informant who had participated in a controlled purchase of two off-white rock-like substances from someone whom the informant described as a black male within the residence on August 21, 2000, two days before the search.

Lieutenant David Doty of the Pulaski County Sheriff's Office testified that he was a member of the search team and that appellant was the only male present in the house when they served the warrant. Apart from appellant, there were four other people at the residence during the search, at least three of whom were in the living room at the time of the search. Another officer testified that he thought that another man might have been present in the living room, and a third officer expressed uncertainty as to the gender of the three people found in the living room.

Captain Kirk Lane of the Pulaski County Sheriff's Office stated that he led the search team into the house after forcibly entering the residence, following a knock and announce. He testified that at that point in time he saw appellant leaving the kitchen and hiding in the laundry room. Lane stated that he apprehended appellant in the laundry room. Lane further testified that appellant had been the only person in the kitchen when the search team began entering. Lane testified that he did not find any paraphernalia on appellant's person.

In addition, Lieutenant Doty testified that he observed eight to ten off-white rocks on a black plate in the kitchen. He also observed food cooking in the kitchen. He also saw a set of electronic scales in the living room. He testified that it is his experience as a narcotics officer that electronic scales are used for weighing and selling drugs.

Pulaski County Sheriff's Department Investigator Greg Evans testified that he had obtained the search warrant based on the confidential informant's tip and controlled purchase two days earlier. Evans also participated in the search. He stated that he found smoking tubes and a set of scales in a bedroom at the back of the house. He also lifted latent fingerprints off the black plate containing the off-white rocks.

Drug analyst Dan Hedges of the Arkansas State Crime Laboratory testified that the rocks retrieved by the officers tested positive for cocaine and weighed .710 grams. In addition, Kenneth King, a fingerprint analyst at the state crime lab, testified that he first ran the fingerprints lifted from the plate on October 16, 2000, and found no matches. However, on March 26, 2002, he re-ran the fingerprints and found a potential match, determining that the match pointed to appellant.

When the State rested its case, counsel for appellant moved for a directed verdict, which the trial court denied. Subsequently, appellant took the stand and denied knowledge of the drugs or paraphernalia, explaining that he was merely cooking dinner for his mother. At trial, appellant stated that he lived at another address and was only visiting his mother. He denied telling Captain Lane that he lived at his mother's residence. He further denied running from the kitchen or living room into the laundry room. Appellant claimed that there was another male in the house. Counsel for appellant then rested and renewed his motions, which were again denied. The trial court found appellant guilty of possession of cocaine with intent to deliver and possession of paraphernalia. The trial court sentenced appellant to ten years' imprisonment on each charge, to be served concurrently. Appellant then brought this appeal.

Sufficiency of the Evidence Concerning Paraphernalia Possession and Possession of Cocaine with Intent to Deliver

Appellant's first two points concern a challenge to the sufficiency of the evidence. A motion for a directed verdict and a motion to dismiss, as used in bench trials, are essentially identical. See Ark. R. Crim. P. 33.1(b) (2003); see also Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). On appeal of the denial of a motion for dismissal, we test the sufficiency of the evidence to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Porter v. State, __ Ark. App. __, __ S.W.3d __ (June 25, 2003). We need only consider the evidence supporting the guilty verdict, and we view that evidence in the light most favorable to the State. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Such a determination is a question of fact for the fact-finder. Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998).

Constructive possession can be implied when the contraband is in the joint control of the accused and others. Walley v. State, __ Ark. __, __ S.W.3d __ (June 12, 2003) (citing Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997)). The State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession if the location was such that it could be said to be under the dominion and control of the accused. Id. Joint occupancy, however, is not alone sufficient. Id. The State must prove additional facts and circumstances, namely that (1) the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Id. In addition, a person's intent can be inferred from facts and circumstances other than direct evidence. Cummings v. State, __ Ark. __, __ S.W.3d (June 12, 2003). Arkansas Code Annotated section 5-64-401(d) (Repl. 1997) requires one gram of cocaine to trigger the presumption of intent to deliver. However, even when the accused possesses less than the amount to create a rebuttable presumption of his intent to deliver, a conviction can be had where other proof of intent to deliver exists. Colbert v. State, 340 Ark. 657, 13 S.W.3d 162 (2000).

Generally, it is unlawful for any person to use, or possess with the intent to use, drug paraphernalia to manufacture, produce, process, prepare, test, pack, store, or contain a controlled substance. Ark. Code Ann. § 5-64-403(c)(1) (Repl. 1997). Electronic scales, pipes, and other objects used for storing controlled substances are defined as drug paraphernalia. Ark. Code Ann. § 5-64-101(v)(5) & (10) (Repl. 1997).

In the present case, we hold that there was sufficient evidence to convict appellant of possession of cocaine, but insufficient evidence to convict him of possession of cocaine with intent to deliver and insufficient evidence to convict him of possession of drug paraphernalia. Law enforcement personnel found crack cocaine and certain paraphernalia, such as scales and inhaling tubes, in the residence subjected to the search warrant. They also found appellant in that residence. According to police testimony, appellant was the only one running from the kitchen, where officers subsequently found a plate with cocaine. Upon retesting, the plate showed appellant's latent fingerprints. Thus, there was substantial evidence to support a conviction for possession of a controlled substance.

However, there is insufficient evidence to support a conviction for possession of drug paraphernalia. According to police testimony, appellant was in the kitchen when the initial entry of the search team occurred. Police testimony established that there was nothing in the kitchen except a black plate containing a controlled substance. There was no drug paraphernalia in the kitchen or on appellant's person. The State failed to draw any connection between the paraphernalia found in other rooms and appellant. In light of the fact that appellant was not the only person in the house and none of the paraphernalia can now be properly said to have been in his constructive possession-in that the State (1) failed to prove care, control, and management as well as (2) failed to prove that appellant knew the matter at hand to be paraphernalia-we hold that there was insufficient evidence to support the paraphernalia charge.

The remaining question rests on the issue of whether there is sufficient evidence to convict appellant of possession with intent to deliver. First, we note that the actual amount of cocaine seized in the search was .710 grams. As stated supra, Arkansas Code Annotated section 5-64-401(d) (Repl. 1997) requires one gram of cocaine to trigger the presumption of intent to deliver. We are mindful of the fact that, even when the accused possesses less than the amount to create a rebuttable presumption of his intent to deliver, a conviction can be had where other proof of intent to deliver exists. Colbert v. State, supra. We see insurmountable problems with that other proof required in the instant case.

In the first place, the search occurred not earlier than two days after a confidential informant purchased cocaine from a "black male" at that residence. The informant did not even state whether the "black male" actually resided there or not. Apart from the obvious problem of the time gap, the informant provided no other criterion of identification. Taking the time span of two days together with the general, vague description of a "black male" at the residence in question, we cannot conclude that the State produced substantial evidence that appellant was the "black male" who sold cocaine to the confidential informant.

The State introduced police testimony that appellant, after apprehension, told the police that he lived at the residence in question. There was no testimony establishing that appellant had his personal effects there, his clothes, or anything of like nature. Instead, the record also reflects that appellant later gave another address of his residence. While we do not engage in reweighing of the evidence and credibility of the witnesses, we point out this fact as one bearing significantly on the question to what extent the confidential informant's generic description amounted to substantial evidence for a conviction of intent to deliver. This is particularly important considering the conflicting police testimony as to whether appellant was even the only black male in the house at the time of the search.

More specifically, none of the testimony connects appellant with any intent to deliver cocaine either the day of the search or two days earlier. We decline to adopt a general assumption-as invited by the State-that some "black male" who sold drugs to the confidential informant two days earlier at the address in question somehow-by default, as it were-necessarily is the same "black male" who was seen running from the kitchen two days later, where food was cooking on the stove, where cocaine was lying on a plate, but no other paraphernalia suggestive of intent of delivery were found. In fact, the only potential contraband indicative of intent to deliver would be the scales, but they were not found in the kitchen, or near the cocaine. The State failed to offer any proof of care, control, and management over any of the contraband that would suggest appellant's alleged intent to deliver. The State further failed to prove that appellant knew that the items in question, in particular those suitable for a conviction on intent to deliver, were in fact contraband. Therefore, we find insufficient evidence for a conviction of possession of cocaine with the intent to deliver and reverse on this point.

Notably, appellant now also makes a Fourteenth Amendment due-process challenge regarding both convictions. However, the record does not show that appellant raised this issue below. Issues not raised below, nor developed, and not ruled upon, are not preserved for appellate review. Turner v. Farnam, __ Ark. App. __, __ S.W.3d __ (June 18, 2003).

Alleged State Discovery and Brady Violation

Appellant's final point of appeal concerns an assertion of a possible discovery and a so-called Brady violation by the State. However, appellant failed to preserve this issue for review. The failure to obtain a ruling on an issue at the trial court level, even if it involves constitutional issues, precludes our review on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). When curative relief is-not requested at trial, the issue is likewise not preserved. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993).

Here, the State elicited testimony from its fingerprint expert, Kenneth King, stating that King initially tested the fingerprints taken from the black plate and found no matches. King then admitted that his first test did not match the so-called SID numbers that were listed on the submission sheet as possible suspects. The State then asked whether he had retested the fingerprints taken at a later date. At this point, counsel for appellant interrupted and stated:

Defense Counsel: Your Honor, can I have a moment to object? I don't have-I've never been provided with this so this is something new. If I could have a moment to review it?

Court: All right.

          Defense Counsel: That's the first I've seen of it. It's good to know it's there.

          State: Sorry, Your Honor. I didn't realize it.

The record reveals that counsel for appellant reviewed the initial report and then allowed the State to continue asking questions about the second test-which yielded a match with appellant's fingerprints-without obtaining a ruling from the trial court regarding his objection, or in any way stating a clear objection. Counsel for appellant never objected when the State offered into evidence the initial and the second fingerprint test report. Counsel for appellant never requested any curative relief either. Thus, we hold that he failed to preserve this issue for our review.

For reasons stated above, we reverse and remand for resentencing for simple possession of cocaine, and reverse and dismiss on possession of paraphernalia.

Reversed and remanded in part; reversed and dismissed in part.

Robbins and Neal, JJ., agree.