Daniel Keys v. State of Arkansas

Cite as 2021 Ark. App. 469
Elizabeth Perry
I attest to the accuracy and
ARKANSAS COURT OF APPEALS
integrity of this document DIVISION IV
2023.08.01 09:31:55 -05'00' No. CR-21-132

2023.003.20244
DANIEL KEYS OPINION DELIVERED DECEMBER 1, 2021
APPELLANT
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
V. [NO. 30CR-19-411]

STATE OF ARKANSAS HONORABLE CHRIS E WILLIAMS,
APPELLEE JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

Daniel Keys was convicted of possession of marijuana with intent to deliver,

possession of drug paraphernalia, and fleeing, and he was sentenced to an aggregate term of

twenty years’ imprisonment in the Arkansas Department of Correction. On appeal, he

argues that the circuit court erred by denying him the right to cross-examine a State’s witness

about high-speed chases and thereby violated his right to confront witnesses against him.

He also argues that the circuit court erred by denying his directed-verdict motions on both

possession charges. We affirm.

I. Facts

On November 15, 2019, an affidavit describing the basis for Keys’s arrest was filed

in the Hot Spring County Circuit Court, and an arrest warrant was issued. The affidavit

alleges that on November 8, Malvern Police Sergeant Heath Dickson observed Keys run a

stop sign after he had passed Dickson’s patrol car, and Dickson turned around to follow
Keys. Dickson activated his emergency lights and siren, and a high-speed chase ensued.

The affidavit describes that Keys ignored at least four stop signs and traveled at 65 miles an

hour on residential streets and at speeds topping 120 miles an hour on Highway 67. During

the chase, Keys traveled in the wrong lane and cars were forced to swerve into the ditch to

avoid collision. Keys ultimately lost control of his vehicle, and it slammed into a tree,

coming to a stop. Keys fled on foot, and Dickson released his police dog. Keys was

eventually restrained and placed in the patrol unit. His vehicle was searched, and police

found marijuana, pipes used for smoking marijuana, and a digital scale.

On December 19, the State charged Keys by information with (1) possession of a

Schedule VI controlled substance, marijuana, with the purpose to deliver, a Class D felony—

in violation of Ark. Code Ann. § 5-64-436 (Repl. 2016); (2) possession of drug

paraphernalia, scales, a Class D felony—in violation of Ark. Code Ann. § 5-64-443 (Supp.

2021); (3) fleeing, a Class D felony—in violation of Ark. Code Ann. § 5-54-125 (Supp.

2021); and (4) being a habitual offender—previously convicted of more than one felony but

fewer than four—in violation of Ark. Code Ann. § 5-4-501 (Supp. 2021).

At the jury trial held on September 28, 2020, Officer Dickson testified about the

facts of Keys’s arrest, and he explained the details of the chase that occurred after Keys ran

a stop sign and refused to pull over after Dickson had activated his lights and siren. Dickson

described each road and turn taken by Keys during the police chase, and he said that at one

point during the chase, Keys turned on Park Street, which is next to a school, and that

students and teachers were present at that time, which was about 4:20 p.m.

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During cross-examination, Keys’s attorney asked, “Do you know that a lot of cities

don’t even allow high-speed chases anymore?” The State objected on the basis of

relevancy, and the circuit court sustained the objection. When testifying on redirect

examination, Dickson testified that he performed an inventory of Keys’s vehicle and found

what he thought to be marijuana and a digital scale. He said that, on the scale, there was a

green leafy substance that was consistent with marijuana.

Sammy Williams, a forensic chemist employed by the Arkansas State Crime

Laboratory, testified that he tested the green vegetable material found in Keys’s vehicle, and

he identified it as marijuana. He said that the total weight of the marijuana was 14.0291

grams.

Malvern Police Officer Keith Prince testified that he was involved in the chase on

November 8. He had been on patrol when he received a radio call from Dickson, who was

involved in a vehicle pursuit. He caught up to Dickson and fell into the pursuit. This

incident happened around 4:20 p.m., it was during a school “let-out” time, and he recalled

seeing children walking on the sidewalk with backpacks as he was traveling at 80 miles an

hour down Mill Street. He saw Keys run stop signs and swerve into the opposite lane, and

he described Keys’s passing a line of cars traveling up a hill and forcing the oncoming car to

swerve toward the ditch. He saw Keys’s car spin out of control and hit a tree, and he saw

Keys get out of the vehicle and run. He said that Dickson and his canine apprehended

Keys.

Malvern Police Officer Brian Johnson testified that he heard Dickson’s radio call and

left from the police department to pursue Keys. He could tell from Dickson’s

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communications that he could encounter the pursuit from an opposite direction. He knew

Keys would be coming down Sulphur Springs Road, so when approaching from the

opposite direction, he slowed to a stop because Keys was coming around the curve in his

direction and traveling on the wrong side of the road. He said that Keys swerved around

him and that he did not witness the end of the pursuit.

Malvern Police Officer Doroteo Delacruz testified that he was involved in Keys’s

pursuit on November 8. Keys ran a stop sign and was driving toward him at a “head-on

angle.” He hit his brakes and expected an impact, but Keys “cut short” and maneuvered

through traffic back into the right lane. He saw Keys weave in and out of oncoming traffic,

and this incident occurred right after school had let out, which is a time of heavy traffic on

that road.

At the close of the State’s case, Keys moved for a directed verdict on each charge,

and the circuit court denied the motions. Thereafter, Keys testified that on November 8,

he saw Officer Dickson begin to pull around behind him. He said,

I was at a stop sign. I didn’t put on my blinker to turn left. And I didn’t know
if he was going to try to get me or what, you know. But I drove, like, wasn’t, you
know, 70 or nothing down the street but I drove kind of quickly down that
street. . . . [I]t was full of bad potholes, and I swerved to avoid them. There was no
traffic on that street at all. I turned on the right and every turn I did I used my
blinkers, you know, because I seen him. I heard the siren about there approximately
when I came to the stop sign at Cherry Lane. I slowed down. . . . I’m not Mario
Andretti. I kept going because, you know, I don’t have a license. I haven’t had a
license for years. My truck had already got hijacked by impound and just my
experience if you make it to your driveway your vehicle don’t get stolen. You know,
you get to keep it. I didn’t want the girl to lose her car for me driving it trying to
check on my house. . . . I didn’t want to screw her out of her car. So, I tried to, I
didn’t really try to get away from him. You know, that’s the reason I used my blinkers
to let him know, because at Sulphur Springs I came to a full stop. You know, I even
put it in park for a second because I thought about just -- and I was, like, well, no,

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the car [will] get impounded if I do this sh--, you know. Once I saw him coming
up over the curve, around the curve I went ahead and turned onto Sulphur Springs.

....

But, no, I didn’t, I mean, I probably did 20, 20 [mph] over the speed limit or
so, I mean, maybe 30. And I didn’t push anybody off the road or anything like that.
It’s my belief that there was, maybe been a couple cars that had pulled off to the side
of the road, not to avoid me, but because they saw blue lights. That’s what you’re
supposed to do, you know. That’s what I’ve always done in the past. But, yeah, I
just, I didn’t want her car to get impounded, you know. I was trying to make it to
my house.

....

The scales, I don’t know. . . . Those aren’t mine. The bag of weed does look
like a bag that I had in my pocket. I don’t sell weed. . . . I’d smoke marijuana. That’s
not enough to sell anyway, you know, really.

At the conclusion of Keys’s testimony, he moved for a directed verdict and asked

that the court reporter include his previous motions verbatim. The circuit court denied the

motions, and the jury found Keys guilty on each count. He was sentenced as a habitual

offender to five years’ imprisonment for possession of marijuana with intent to deliver; three

years’ imprisonment for possession of drug paraphernalia; and twelve years’ imprisonment

for fleeing. The court ordered that the sentences should run concurrently.

II. Standard of Review

It is well settled that we treat a motion for a directed verdict as a challenge to the

sufficiency of the evidence. Farris v. State, 2021 Ark. App. 191, at 4, 620 S.W.3d 559, 561–

62. Evidence is sufficient if it is substantial. Id. Substantial evidence is that which is of

sufficient force and character that it will compel a conclusion without resort to speculation

or conjecture. Id. On review, the evidence is viewed in the light most favorable to the

verdict, and only evidence supporting the verdict will be considered. Id.

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Keys argues in his first point on appeal that he was denied his Sixth Amendment

right to confront witnesses against him. However, because Keys also argues that the circuit

court erred by denying his motions for directed verdict, double-jeopardy concerns require

us to first address the sufficiency challenges. Taffner v. State, 2018 Ark. 99, at 5, 541 S.W.3d

430, 434. Preservation of an appellant’s right to freedom from double jeopardy requires a

review of the sufficiency of the evidence prior to a review of trial errors. Harris v. State, 284

Ark. 247, 681 S.W.2d 334 (1984) (discussing Burks v. United States, 437 U.S. 1 (1978)).

III. Possession of Marijuana with Intent to Deliver

Keys contends that the circuit court erred in denying his motion for directed verdict

on the charge of possession of marijuana with intent to deliver. He claims he argued in his

motion that the State failed to connect him to the marijuana. He argues that the State’s

evidence was that a car was searched, that marijuana was found, but that the State failed to

prove that either the car or the marijuana was his. He argues that the “[S]tate specifically

said” the marijuana was not found on him, and he claims that “the jury was left to

speculation and conjecture as to the possession of marijuana.”

A person commits possession of a Schedule VI substance with the purpose to deliver

if he possesses a Schedule VI controlled substance and the State proves purpose to deliver

by any of the following factors:

(1) The person possesses the means to weigh and separate a Schedule VI
controlled substance;

(2) The person possesses a record indicating a drug-related transaction;

(3) The Schedule VI controlled substance is separated and packaged in a manner
to facilitate delivery;

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(4) The person possesses a firearm that is in the immediate physical control of the
person at the time of the possession of the Schedule VI controlled substance;

(5) The person possesses at least two (2) other controlled substances in any
amount; or

(6) Other relevant and admissible evidence that contributes to the proof that a
person’s purpose was to deliver a Schedule VI controlled substance.

Ark. Code Ann. § 5-64-436(a) (Repl. 2016). According to Arkansas Code Annotated

section 5-64-436(b)(2), a person is guilty of a Class D felony if he “possessed more than

fourteen grams (14g) but less than four ounces (4 oz.) by aggregate weight . . . of a Schedule

VI controlled substance.”

The evidence showed that Keys was the driver and sole occupant of the car and that

he fled so that Officer Dickson could not take his bag of weed. See Jones v. State, 2010 Ark.

App. 775 (flight following the commission of an offense is a factor that may be considered

with other evidence in determining guilt). Officers found 14.0291 grams of marijuana and

digital scales, and Keys testified that the bag of marijuana was his. Accordingly, sufficient

evidence supports his conviction for possession of marijuana with intent to deliver.

IV. Possession of Drug Paraphernalia

Keys claims that the circuit court erred in denying his directed-verdict motion on

the possession-of-drug-paraphernalia charge. He contends that he argued the State had

failed to connect him to the scales or to “say where the scales came from or tie the scales to

the marijuana.” He argues that the State failed to “state” it was his car or his scales and that

it failed to explain how the scales were drug paraphernalia.

Keys argues below,

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He’s charged with the offense of possession of drug paraphernalia with the
purpose to use the drug paraphernalia to manufacture a controlled substance. There’s
no evidence of the manufacturing here, Your Honor. He just had a set of scales.
They also didn’t say where the scales came from or tie it to the marijuana.

The State asserts that Keys’s directed-verdict motion did not preserve the sufficiency

argument he makes on appeal. See Smith v. State, 2021 Ark. App. 255, at 4–5 (citing Ark.

R. Crim. P. 33.1(a) & (c)). Alternatively, the State claims that sufficient evidence was

presented that Keys possessed drug paraphernalia.

“[D]rug paraphernalia” includes “[a] scale or balance used, intended for use, or

designed for use in weighing or measuring a controlled substance.” Ark. Code Ann. § 5-

64-101(12)(B)(v) (Supp. 2021). “[P]ossession” is the exercise of control over a tangible

object; such possession can be either actual or constructive. E.g., Clark v. State, 2015 Ark.

App. 679, at 5, 477 S.W.3d 544, 546. “[P]roof that the defendant is the driver of the car is

evidence that he or she exercised dominion and control over it.” Lockheart-Singleton v. State,

2018 Ark. App. 307, at 6.

At trial, the evidence showed that Keys was the sole occupant of the car. Instead of

stopping when Officer Dickson initiated his lights and siren, Keys fled. He exercised

dominion and control over the contents of the car, which included the digital scale.

Marijuana residue was found on the scale, and over fourteen grams of marijuana was seized.

Accordingly, we hold that sufficient evidence was submitted to support Keys’s conviction

for possession of drug paraphernalia.

V. Confrontation Clause

Keys argues that the circuit court abused its discretion when it refused to allow him

to fully cross-examine the State’s witness about his knowledge of high-speed-chase policies.

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We hold that this argument is not preserved for appellate review because it was not raised

at trial, and no ruling was obtained from the circuit court. Neal v. State, 2020 Ark. App.

245, at 3, 601 S.W.3d 135, 137 (to preserve a Confrontation Clause argument on appeal, a

defendant must obtain a ruling from the circuit court on that specific issue).

Affirmed.

VIRDEN and VAUGHT, JJ., agree.

Gregory Crain, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.

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