DIVISION III V. HON. LARRY W. CHANDLER, JUDGE. On August 24, 2006, a Columbia County jury found Andrew Tremaine Brewer guilty

Transcription

1 ARKANSAS COURT OF APPEALS NOT DESIGNATED FOR PUBLICATION WENDELL L. GRIFFEN, JUDGE DIVISION III CACR September 19, 2007 ANDREW TREMAINE BREWER APPELLANT AN APPEAL FROM COLUMBIA COUNTY CIRCUIT COURT [CR and CR ] V. HON. LARRY W. CHANDLER, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED On August 24, 2006, a Columbia County jury found Andrew Tremaine Brewer guilty of possession of a controlled substance (Darvocet) and residential burglary, for which he was sentenced to a seventy-year term of imprisonment in the Arkansas Department of Correction. He challenges the sufficiency of the evidence to support both convictions. He also contends that the trial court erred during the sentencing phase by allowing the State to inform the jury about the sentences he received for his previous convictions. We affirm, holding (1) that the pharmacist s identification of the drug was substantial evidence of the identity of the pills found on appellant s person; (2) that the eyewitness s testimony that appellant was committing residential burglary was substantial evidence that he was committing that crime; and (3) that the court properly allowed the State to inform the jury about the sentences in appellant s previous criminal convictions. Background Facts

2 The State filed two separate charging instruments. The criminal information filed on December 21, 2005, charged appellant with possession of a Schedule IV controlled substance (Darvocet) without a valid prescription, shoplifting, and fleeing on foot. The information filed on February 10, 2006, charged appellant with residential burglary, misdemeanor theft, possession of a controlled substance (methamphetamine), possession of drug paraphernalia, and resisting arrest. In both cases, he was charged as a habitual offender, having committed four or more felonies. The cases were consolidated for one trial, held on August 24, Regarding the possession charge, the court heard testimony from Eli Carlew. In October 2005, he lived in a trailer at 2104 North Washington in Magnolia with two roommates, Thelton Chamberlain and Derrick Ross. According to his testimony, Carlew was eating lunch and watching television when appellant knocked on his door. Appellant asked if Carlew had a party there the night before, and Carlew confirmed that there was a party. Appellant then claimed to have left something in the bathroom and asked for permission to retrieve it. Carlew allowed appellant into his residence and continued eating lunch. After a while, Carlew noticed that appellant had been in his residence for longer than necessary to retrieve an item. He went to the rear of the dwelling, where he saw appellant in Chamberlain s room staring out the back window. Carlew found it odd that appellant was in Chamberlain s room because, according to his testimony, no one enters the bedrooms during the parties. Appellant left after Carlew confronted him. Days later, Magnolia Police arrested appellant and recovered an orange prescription pill bottle with several pills. The bottle had Chamberlain s name on it, and later in the trial, Chamberlain identified the bottle as containing a prescription for Darvocet that he received after he broke his leg after Thanksgiving He did not recall what the pills looked like because he did not take very many of them. The court heard testimony from Jane Alexander, a registered pharmacist, who 2

3 identified the pills in the bottle as generic Darvocet. She testified that she was familiar with propoxyphene, a Schedule IV narcotic used for pain relief, and that the bottle contained the abbreviation PropoN, which stood for propoxyphene N, and Apap, which is the chemical symbol for acetaminophen. She also examined the pills inside the bottle, which she testified she had seen often and filled twenty to thirty prescriptions a day. The particular pills she examined were neon pink and had numbers on both sides of the pill. These characteristics were those for generic Darvocet. Much of the testimony regarding the residential-burglary charge came from Jason Jacobs. Jacobs testified that he was washing his truck at a car wash on January 1, 2006, when appellant approached him and asked for a ride to his house. After Jacobs finished washing his truck, he gave appellant a ride. When Jacobs arrived at where appellant directed him, appellant pulled out a silver pipe and asked Jacobs, Mind if I hit this? Jacobs then asked appellant to leave his truck. Appellant told Jacobs that he was going to give him ten dollars for gas. Then, according to Jacobs s testimony, appellant went to and knocked on the front door, looked around, unscrewed the light bulb, and forced open the door with his back. After appellant entered the house, Jacobs saw lights being turned on and clothes being thrown. Jacobs immediately went to the Magnolia Police Department and reported that appellant was burglarizing a house. Because Jacobs did not know the address, several police officers followed Jacobs to the residence. As they were driving, Jacobs saw appellant attempt to flag him down. Jacobs pulled into a church parking lot and identified appellant as the person burglarizing the home. The State also called several police officers, who testified that Jacobs arrived at the police station to report a robbery, that they followed Jacobs to the home appellant had robbed, that they saw appellant walking between the car wash and the home, and that Jacobs identified appellant as the person robbing the home. The home was later identified as located 3

4 at 2104 North Washington, which was the same home where the first incident occurred the previous October. While investigating the burglary, one police officer found two bags containing various items, and Chamberlain identified the items belonging to himself or his roommates (with the exception of a set of poker chips that he had borrowed from a colleague). Police officers also testified that, when going though the residence, it appeared that somebody had just went in there and ransacked everything. At the close of the State s case, appellant made several motions for directed verdict. Regarding the drug-possession charge, he argued that the only evidence that the pills were Darvocet was from Alexander s testimony, and he contended that her testimony was insufficient to prove that the pills found on appellant s person were Darvocet pills. Regarding the residential-burglary charge, appellant argued that the only testimony placing him in the residence was from Jacobs, and he contended that Jacobs s testimony conflicted in various points with that of the others. The court denied appellant s motions. Appellant rested without presenting a case and renewed his directed-verdict motions, which were again denied. After deliberating, the jury returned with guilty verdicts on the charges for possession of Darvocet and residential burglary. It did not render verdicts on any other charges, and the court declared a mistrial on the remaining charges. The court then proceeded to the sentencing phase of the trial, where appellant asked that evidence regarding the sentences he received for previous convictions be excluded from the evidence. The court denied appellant s motion. After hearing evidence regarding sentencing, the jury returned with a thirty-year sentence on the charge of possession of Darvocet and a forty-year sentence on the charge of residential burglary. The sentences were ordered to be served consecutively, for a total seventy-year term in the Arkansas Department of Correction. Analysis 4

5 We consider challenges to the sufficiency of the evidence before considering other allegations of error. See Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. When a defendant makes a challenge to sufficiency of the evidence on appeal, the appellate court views the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict will be considered, and the conviction will be affirmed if there is substantial evidence to support it. Id. Circumstantial evidence may constitute sufficient evidence to support a conviction, but it must exclude every other reasonable hypothesis other than the guilt of the accused. Whitt v. State, 365 Ark. 580, S.W.3d (2006). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id. Appellant argues that the State presented insufficient evidence to find him guilty of possession of a controlled substance (Darvocet). He contends that Alexander s testimony regarding whether the pills were in fact Darvocet pills was not enough to support the conviction. However, lay testimony and circumstantial evidence can be sufficient to sustain a drug conviction even without expert chemical analysis of the alleged contraband. See Armstrong v. State, 5 Ark. App. 96, 633 S.W.2d 51 (1982) (citing United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976); Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977)). Alexander testified that she recognized the pills as generic Darvocet and about the particular markings on the pill and prescription bottle. In addition, Chamberlain testified that the bottle belonged to him and that he was prescribed Darvocet by his doctor. We hold that this evidence was sufficient to establish that the pills found on appellant s person were indeed 5

6 Darvocet and affirm on this point. Appellant also challenges the sufficiency of the evidence to support the residentialburglary conviction. He argues that the only evidence that placed him in the trailer was Jacobs s testimony, and appellant contends that Jacobs s testimony conflicted with the testimony of other witness and was insufficient to support the charge. He also argues that none of the items stolen from the trailer were found in his possession. While appellant asserts that Jacobs s testimony conflicts with the testimony of other witnesses, he does not identify any such conflicting testimony. Further, Jacobs s testimony appears consistent with the testimony of the police officers. Even if appellant had identified any inconsistent testimony, it is well-settled that issues involving the credibility of witnesses and inconsistent testimony are for the trier of fact to resolve. See, e.g., Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). One eyewitness s testimony is sufficient to sustain a conviction, and such testimony is not clearly unbelievable based only on the fact that it is uncorroborated or because it has been impeached. E.g., Mosley v. State, 97 Ark. App. 127, 189 S.W.3d 456 (2004). Here, Jacobs testified that he witnessed appellant break into and rummage through the trailer. We hold that Jacobs s testimony was sufficient to establish that appellant was in the trailer and affirm on this point. Finally, appellant argues that the trial court erroneously allowed the State to tell the jury of the sentences he had received for previous convictions. He argues that, while Ark. Code Ann (Repl. 2006) would permit the evidence, Ark. Code Ann (Repl. 2006) does not. He contends that when two statutes conflict, the court should apply the one that is least prejudicial to the defendant. Arkansas Code Annotated section (2) explicitly allows the State to enter into evidence the prior convictions of the defendant, including the nature of the previous 6

7 convictions, the date and place thereof, the sentenced received, and the date of release from 1 confinement or supervision. Arkansas Code Annotated section (3)(B) also provides that the jury be advised as to the nature of a defendant s prior felony convictions; however, 2 it does not explicitly what details the State is allowed to present to the jury. It appears that appellant is arguing that, because (3)(B) does not explicitly state that the State is allowed to present evidence of prior sentences, that evidence is inadmissible. Appellant fails to present any argument supporting his contention that, by not stating in that the sentences received for a defendant s prior crimes is admissible, the General Assembly intended to render such evidence inadmissible. Further, as the State argues, the two statutes can be construed harmoniously. In Wells v. State, 337 Ark. 586, 589, 991 S.W.2d 114, 116 (1999) (citations omitted), our supreme court provided guidance for interpreting statutes: It is well settled that statutes relating to the same subject should be read in a harmonious manner if possible. All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. In construing two acts on the same subject, we first must presume that when the General Assembly passed the later act, it was well aware of the prior act and did not intend to pass an act without purpose. Furthermore, the General Assembly is presumed to have enacted a law with the full knowledge of court decisions on the subject and with reference to those decisions. Thus, where two legislative acts relating to the same subject are in conflict with each other, the later act controls. 1Ark. Code Ann reads, in relevant part: Evidence relevant to sentencing by either the court or a jury may include, but is not limited to the following... : (2) Prior convictions of the defendant, both felony and misdemeanor. The jury may be advised as to the nature of the previous convictions, the date and place thereof, the sentence received, and the date of release from confinement or supervision from all prior offenses[.] (Emphasis added.) 2 Ark. Code Ann (3)(B) reads: The jury may be advised as to the nature of a prior felony conviction and the date and place of a prior felony conviction[.] 7

8 Section is a sentencing procedure statute; whereas, is an evidence statute. The procedural statute does not describe what aspects of a defendant s past criminal record are admissible and are inadmissible. We do not interpret to mandate the inclusion or exclusion of any particular evidence. Even if the two statutes conflicted, , which explicitly allows for the introduction of the sentences, was enacted in 1993, while was enacted in When two statutes conflict, the later-enacted statute controls. See Wells, supra. Accordingly, the trial court did not err in allowing the State to advise the jury of the length of the sentences appellant received for his previous convictions, and we affirm on this point. Affirmed. GLADWIN and VAUGHT, JJ., agree. 8