Opinion
CR-24-83
11-13-2024
GEORGINA GIBOUT APPELLANT v. STATE OF ARKANSAS APPELLEE
Dowden, Worley, Jewell & Olswing, PLLC, by: J. Conner Ray, for appellant. Tim Griffin, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.
APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [no. 18CR-22-510] HONORABLE RANDY F. PHILHOURS, JUDGE
Dowden, Worley, Jewell & Olswing, PLLC, by: J. Conner Ray, for appellant.
Tim Griffin, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.
MIKE MURPHY, Judge
Appellant Georgina Gibout appeals the decision of a Crittenden County Circuit Court jury finding her guilty of one count of possession of a controlled substance (methamphetamine) and one count of possession of drug paraphernalia. She was sentenced to ten years' imprisonment for possession of a controlled substance and five years' imprisonment for possession of paraphernalia, with the sentences to run concurrently. Gibout makes the following arguments on appeal: (1) the court erred in denying her motion to suppress; (2) the court erred in admitting a certain package of methamphetamine into evidence; (3) the court erred by allowing photographs of documents into evidence in lieu of the documents themselves; (4) the court erred by denying her motions for directed verdict; and (5) the court erred by excluding jury instructions for a lesser-included offense for the possession-of-a-controlled-substance charge. We affirm.
On May 16, 2022, investigators with the Marion Police Department executed a search warrant on Gibout's home. They found methamphetamine, baggies, and scales. The final amended information charged her with possession of methamphetamine with the purpose to deliver and possession of drug paraphernalia. The search warrant was issued on April 21, 2022.
The affidavit on which the warrant was based provided the following. On January 30, 2022, an officer searching a car at Gibout's residence found a syringe with a substance that field tested positive for fentanyl. On March 3, "investigators received information that [Georgina] Gibout . . . was selling narcotics from [her] residence." On March 20, police stopped a car leaving Gibout's home and upon searching the car found marijuana residue. The occupant said he had smoked marijuana and methamphetamine in the last twenty-four hours. The following day, police stopped another car leaving Gibout's address. Police found methamphetamine on one of the passengers, inside the car, and later again in the police cruiser after transporting a passenger to the station. Finally, on April 20, an investigator drove by the house and saw Gibout parked outside in a blue Ford Taurus with expired tags. Gibout went inside the house. The Taurus driver then led the police on a high-speed chase, and the eventual search of that car revealed a substance that field tested as methamphetamine and fentanyl.
Gibout moved to suppress the evidence found at her home, arguing that the search warrant was not supported by probable cause.
At the suppression hearing, Marion Police Department Captain Dustin Laws testified that he had prepared the warrant. He said the police department had been actively investigating Gibout because they thought she was a drug dealer. In preparing the affidavit, he relied on information he had collected as well as information he had received from officers in the department, with the exception of the one anonymous tip. Thereafter, Gibout's counsel argued that the affidavit was insufficient to support a finding of probable cause to search Gibout's residence because the anonymous tip was the only averment linking Gibout directly to criminal activity. The court denied the motion to suppress, finding that it was acceptable for Captain Laws to rely on the accounts of other officers in making the affidavit and that the affidavit lists several instances of activity that are consistent with the operation of a drug house. The court found that the affidavit was valid on its face, but even if it was not, Captain Laws reasonably relied, in good faith, on the search warrant once it was issued.
At trial, police put on evidence that when they searched Gibout's home, they found syringes, glass pipes, bongs, a set of digital scales, a small amount of methamphetamine (about a fifth of a gram) on a bedside table, and a bag containing about sixty grams of methamphetamine in a filing cabinet.
Relevant to the arguments on appeal, the court admitted the sixty-gram bag of methamphetamine into evidence over Gibout's objection. Citing Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997), she argued that the State did not adequately establish the chain of custody. The color of the methamphetamine in the photo was white, but the methamphetamine the State produced at trial was off white, almost light brown. Officer Morton, one of the officers who conducted the search, testified that the methamphetamine as it photographed appeared to be clear white from the camera light, but the photo introduced showed the same bag of methamphetamine the State produced at trial. Amanda Blox, a chemist with the state crime lab who analyzed the drugs, testified that she believed what was provided to her for testing and the photographed evidence from the search scene are the same. She noted there was a red stripe on both bags. Dustin Burnett, who took the photograph, testified that the evidence admitted at trial and the evidence he photographed were the same. He said he had taken the photo at the scene with the flash on.
Another objection relevant to the appeal was the admission of some photos of documents. The documents were located in the same filing cabinet as the sixty grams of methamphetamine. The drugs were "hidden between the papers." Officer Morton testified, "I believe I found documents with Ms. Gibout's name on it. I think some with her mother's name on it." When the State moved to admit photographs of the documents, Gibout objected, citing the best-evidence rule. The court admitted them over the objection.
Finally, Gibout proffered jury instructions on the lesser-included offense of possession of a controlled substance (a Class D felony). The State had proposed a jury instruction that was based on the total weight of the drugs seized-about 60.2 grams. Gibout explained that because the jury might decide to convict her of possession of the one-fifth of a gram of methamphetamine found in the bedside table but acquit her of possessing the sixty grams found in the filing cabinet, she required a jury instruction on Class C felony possession of methamphetamine with intent to deliver. The circuit court rejected Gibout's instruction, reasoning that there was "nothing to indicate" that Gibout's possession of the drugs in the bedroom was somehow different from her possession of drugs in the cabinet.
Gibout was ultimately convicted of possession of paraphernalia and possession of a controlled substance. She was sentenced to a total of ten years' imprisonment. This appeal followed. On appeal, she challenges the sufficiency of the evidence, the search warrant, the introduction of the sixty-gram bag of methamphetamine, the introduction of photos of documents found alongside the sixty-gram bag of methamphetamine, and the exclusion of a certain jury instruction.
I. Sufficiency of the Evidence
We will address Gibout's arguments out of order. We address sufficiency-of-the-evidence questions first because if the judgment of conviction is not supported by substantial evidence, an appellant may not be tried again under the principle of double jeopardy. Brown v. State, 347 Ark. 308, 314, 65 S.W.3d 394, 397-98 (2001).
Gibout moved for directed verdict at the conclusion of the State's case-in-chief and again following her case-in-chief, which corresponded with the close of all evidence. A motion for directed verdict challenges the sufficiency of the State's proof against the defendant. Cantrell v. State, 2009 Ark. 456, at 5, 343 S.W.3d 591, 594. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Guilt can be established without direct evidence; evidence of guilt is not less because it is circumstantial. Gonzales v. State, 2019 Ark.App. 600, at 12, 589 S.W.3d 505, 513. Circumstantial evidence is substantial when it excludes every reasonable hypothesis consistent with innocence; whether it does so is usually a jury question. Smith v. State, 2023 Ark.App. 57, at 5, 660 S.W.3d 622, 624.
A person who possesses between ten and two hundred grams of methamphetamine is guilty of a Class B felony. Ark. Code Ann. § 5-64-419(b)(1)(C) (Supp. 2023). A person who uses or possesses drug paraphernalia with the purpose of using it to sell methamphetamine is guilty of a Class B felony. Ark. Code Ann. § 5-64-443(b)(2) (Supp. 2023). Possess means "to exercise actual dominion, control, or management over a tangible object." Ark. Code Ann. § 5-1-102(15) (Supp. 2023). The State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Walley v. State, 353 Ark. 586, 595, 112 S.W.3d 349, 353 (2003).
The evidence when viewed in the light most favorable to the State established that Gibout came and went from the house during the two weeks preceding the execution of the search warrant in a manner consistent with someone who lived there. Officer Morton testified that he conducted surveillance on the home for two weeks, and it did not look like anyone else lived there. He saw Gibout in the home the day before the search. Captain Laws testified that he saw mail inside the home with Gibout's name on it and a photo identification with Gibout's photo on it.
Gibout argues that the home was "accessed and/or occupied" by numerous individuals besides her at or near the time the contraband was found in the home, and therefore, the State did not establish that the drugs and paraphernalia were in her sole, exclusive control and possession. She cites Garner v. State, 355 Ark. 82, 91, 131 S.W.3d 734, 739 (2003), and Lucas v. State, 2023 Ark.App. 306, at 6, 669 S.W.3d 266, 270. In Garner, our supreme court held that the evidence was insufficient to establish that Garner constructively possessed contraband that was found about half a mile from Garner, who was riding his motorcycle at the time. It was hidden in a binocular case on the side of a grassy road along with a letter between two of Garner's brothers. Garner had binoculars on his person that fit the case when he was arrested. In Lucas, the contraband was found in a truck parked on Lucas's father's property. Lucas was passed out in a chair twenty yards away. Notably, there was no evidence introduced that Lucas either owned the truck or had driven it recently.
After comparing the facts in these two cases with those of Gibout's, we are not persuaded they are similar enough to warrant reversal here. An issue central to reversal in both Lucas and Garner was that the State did not establish that either appellant had any real control over the places where the contraband was found (the side of a road and a truck parked twenty yards away). Gibout's contraband, however, was found in her home. Evidence established that Gibout lived in the house alone. There was only one bedroom that seemed to be occupied, and in that bedroom was a table with Gibout's ID on it. There was a closet in that bedroom, and in the closet was a filing cabinet that contained both documents with Gibout's name on them and a bag with sixty grams of methamphetamine. The State is not required to prove literal physical possession of the contraband; we look at whether the contraband was located in a place under the accused's dominion and control. Lema v. State, 2024 Ark.App. 140, at 4, 684 S.W.3d 929, 932. The facts here are sufficient to establish possession of both the drugs and the paraphernalia.
Gibout explains, however, that there must be some additional factor linking her to the contraband. She is referring to the increased inquiry afforded to those accused of constructive possession when the contraband is found somewhere that is jointly occupied. See generally Hodge v. State, 303 Ark. 375, 377, 797 S.W.2d 432, 434 (1990) ("Where contraband is discovered in jointly occupied premises, and there is no direct evidence that it belongs to a particular occupant, some additional factor must be present linking the accused to the contraband."). We disagree that this is a joint-occupancy case.
Police testified that Gibout appeared to live alone. No one was inside the house when the search was performed. And while police did see others coming and going from the property, the fact that someone other than Gibout may have had access to the premises does not establish that the premises was jointly occupied. See Hare v. State, 2024 Ark.App. 223, at 10, 687 S.W.3d 158, 164 (holding that appellant is not afforded joint-occupancy analysis when evidence established he lived alone); see also Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002) (holding that a single occupant in a car owned by another was subject only to the general inquiry for constructive possession and not the increased inquiry afforded joint-occupancy circumstances).
The evidence is sufficient to establish that Gibout constructively possessed the drugs found in her home.
II. Fruit of the Poisoned Tree
Gibout next challenges the search warrant. On appeal, she argues that the circuit court should have suppressed the contraband for lack of probable cause supporting the search.
Under Arkansas Rule of Criminal Procedure 13.1(b), an "application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized[.]" The application must be supported by affidavit or testimony before a judicial officer "particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched." Id. "An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place." Id. The task of the judge issuing a warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him or her, there is a fair probability that contraband or evidence of a crime will be found in a particular place. King v. State, 2019 Ark. 114, at 5, 571 S.W.3d 476, 479. Our duty as a reviewing court is to ensure that the magistrate issuing the warrant had a substantial basis for concluding that probable cause existed. Cone v. State, 2022 Ark. 201, at 15, 654 S.W.3d 648, 659. In reviewing a denial of a suppression motion, this court makes an independent examination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State, and we reverse only if the circuit court's ruling was clearly against the preponderance of the evidence. Smith v. State, 2022 Ark. 95, at 10.
Gibout attacks the warrant on a few fronts. First, she argues that of the nine averments in the warrant, only one-the anonymous tip-directly links her to criminal conduct. She further explains that Captain Laws failed to obtain any sworn statements by his witnesses. However, failure of the affidavit to establish the veracity and bases of knowledge of persons providing information to the affiant does not require that the application be denied. Ark. R. Crim. P. 13.1. That is because the affidavit is to be viewed as a whole to determine whether there is a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place. Id. And taking the application as a whole, reasonable cause exists here.
Gibout explains that the allegations in the warrant do not demonstrate probable cause to search the property because most of the criminal conduct alleged occurred elsewhere, and there was no information in the affidavit "that indicated drugs and/or paraphernalia were coming out of the Property into the community." We disagree on both fronts. The affidavit provided that police had searched several vehicles leaving her property-including one she was in immediately preceding the stop and another actually on the property-and drugs or drug residue was discovered in all of those searches. The denial of the motion was not clearly against the preponderance of the evidence.
III. Admission of the Sixty Grams of Methamphetamine
At trial, several packages of methamphetamine were admitted into evidence. Gibout challenges the admission of the largest package, arguing that the circuit court abused its discretion because it was not sufficiently established that the evidence was genuine and has not been tampered with.
The purpose of establishing chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Long v. State, 2024 Ark.App. 98, at 10, 685 S.W.3d 280, 287-88. We will not reverse a circuit court's ruling on an evidentiary matter regarding admissibility of evidence absent an abuse of discretion because such matters are left to the sound discretion of the circuit court. Id. To prove authenticity of evidence, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Id.
Gibout objected to the admission of the methamphetamine at trial because the photographs of the drugs taken at the search scene showed it to be "pure white," but the methamphetamine depicted in the physical exhibit presented in court appeared to have "a brownish streak or streaks running through it." In Crisco, our supreme court reversed a conviction and held the circuit court abused its discretion in receiving a substance into evidence when the description by the officer and the chemist differed significantly. The officer had testified that the drug was an off-white powder substance, while the forensic chemist described the drug as a tan rock-like substance. The supreme court wrote that "[u]nder these circumstances . . . we believe the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance." Crisco, 328 Ark. at 392, 943 S.W.2d at 585.
Here, the State did more than "trace the route." Two officers who were at the search scene testified that the drugs admitted into evidence at trial were what they found that day. The officer who took the photo said the evidence introduced at trial was the same as that which he photographed, and the white appearance in the photograph was due to the flash on the camera. This evidence demonstrates a reasonable probability that the evidence had not been tampered with, and the circuit court did not abuse its discretion in admitting the drugs.
IV. Best-Evidence Objection
Gibout next contends that it was an abuse of discretion to admit photographs of documents that were found in the filing cabinet alongside the large bag of methamphetamine. The photos are of documents that show Gibout's name on them. Gibout argues that if the State wanted to establish that her personal papers were located alongside the methamphetamine, then the State should have produced the papers at trial and admitted them into evidence.
Arkansas Rule of Evidence 1002, known as the best-evidence rule, provides that, with some exceptions, in order to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required. Circuit courts have broad discretion in evidentiary rulings, and a circuit court's ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. Dirickson v. State, 104 Ark.App. 273, 276, 291 S.W.3d 198, 200 (2009).
Here, the circuit court concluded that the best-evidence rule does not apply because the documents sought to be introduced were not taken by the State as part of the search and instead remained in Gibout's possession. The circuit court was correct. One of the exceptions to Arkansas Rule of Evidence 1002 is found in Arkansas Rule of Evidence 1004, which provides that an original is not required when it is under the control of the party against whom it is offered. This applies when the party is put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and the party does not produce the original at the hearing.
Gibout argues in her reply that the exception is inapplicable because "nothing in the record established that [she] recovered or retained the writings photographed by the State," but Officer Morton testified that he just photographed the items where they were, did not take them, and they "should be in Ms. Gibout's possession still." Admitting the photographs of documents with Gibout's name on them was not an abuse of discretion.
V. Lesser-Included-Offense Instruction
For her final point on appeal, Gibout argues that the circuit court erred by rejecting her proffered jury instruction on possession of methamphetamine and possession of drug paraphernalia based on possession of less than ten grams of methamphetamine. She suggests that the jury could have concluded that she possessed the small amount of methamphetamine found on her bedside table but that she did not possess the sixty-gram bag found in her closet.
A circuit court's ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. Percefull v. State, 2011 Ark.App. 378, at 9, 383 S.W.3d 905, 911. We will affirm a circuit court's decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. See id. Here, the circuit court concluded that there was nothing to warrant a lesser-included-offense instruction because the drugs were all part of a single, unified possession, despite being found in two different locations in the same room. This provides a rational basis for excluding the instruction.
Affirmed.
Gruber and Barrett, JJ., agree.