Angela Downing v. State of Arkansas

Cite as 2024 Ark. App. 151
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-23-113

Opinion Delivered February 28, 2024

ANGELA DOWNING APPEAL FROM THE CONWAY
APPELLANT COUNTY CIRCUIT COURT
[NO. 15CR-22-11]
V.
HONORABLE JERRY DON RAMEY,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED; REMANDED TO
CORRECT THE SENTENCING
ORDER

KENNETH S. HIXSON, Judge

Appellant Angela Downing appeals after she was convicted by a Conway County

Circuit Court jury of possession of methamphetamine with purpose to deliver more than 10

grams but less than 200 grams and possession of drug paraphernalia. She was sentenced as

a habitual offender to serve an aggregate of six hundred months’ incarceration. On appeal,

appellant challenges the sufficiency of her convictions. We affirm appellant’s convictions

but remand for the limited purpose of correcting the sentencing order.

I. Relevant Facts

Appellant was charged by amended criminal information with possession of

methamphetamine or cocaine with purpose to deliver more than 10 grams but less than 200

grams, a Class A felony, in violation of Arkansas Code Annotated section 5-64-420(b)(3);
and possession of drug paraphernalia, a Class D felony, in violation of Arkansas Code

Annotated section 5-64-443(a)(2). The State further stated that appellant’s sentence should

be enhanced as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501.

A jury trial was held on July 20, 2022, and the following evidence was presented.

On July 15, 2021, Officers Josh Baker and Nate Watkins went to 44 Crows Loop in

Morrilton, Arkansas, to conduct a search of appellant’s residence. Officer Baker testified

that he knew appellant from past encounters. At that time, she was on probation. At the

residence, they found appellant in her shop on the property that appellant used for her

furniture business. Officer Baker testified that the shop door was open and that he

announced himself as soon as he stepped inside the door. He explained he saw appellant

and another gentleman sitting on the couch on the far side of the building. Officer Baker

testified that after she made eye contact with him, he saw appellant holding something that

she then stuffed in between the cushions of the couch she was sitting on. When he later

searched the couch, he found a “black zippered bag” containing plastic baggies with a “white

crystalline substance” inside, a coffee filter containing a white crystalline substance, two

syringes, unused plastic baggies, a compact digital scale, and a spoon with residue. Officer

Baker also found a pipe with residue under a towel on the couch, and on a nearby dresser,

he found a package of unused baggies. The crystalline substances field-tested as

methamphetamine and were subsequently sent to the Arkansas State Crime Laboratory.

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Kim Brown, a forensic chemist with the state crime lab, testified that she tested

26.3944 grams of the crystalline substance and confirmed that it was methamphetamine.

She admitted that she did not test the remaining 23 grams that was also found.

Officer Watkins’s testimony at trial repeated much of the same testimony as Officer

Baker. He also testified that based on his training and experience, the amount of suspected

methamphetamine that was found was not indicative of personal use but suggested that

appellant was selling narcotics. On cross-examination, Officer Watkins admitted that

appellant had worked as a confidential informant in the past.

When the State rested its case, appellant, through counsel, moved for a directed

verdict, which the circuit court denied.

Appellant testified on her own behalf. She denied living at the 44 Crows Loop

address but instead claimed that it was her boyfriend’s address. She also denied that she was

sitting on the couch when Officers Baker and Watkins entered the shop. She further denied

that any of the contraband found was hers. She explained that the furniture she refurbished

came from the apartments of people who had been evicted and had abandoned it.

Therefore, she stated that she did not know what was in the furniture when she received it.

After the defense rested, the State called Chelsea Slectha with the Morrilton

Probation and Parole Office as a rebuttal witness. Ms. Slectha testified that she was

appellant’s probation officer and that in “April or May of 2021,” appellant changed her

registered address to 44 Crows Loop in Morrilton. She further testified that she had done a

home visit at that address.

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Appellant did not renew her motion for directed verdict at the close of all the

evidence. The jury found appellant guilty of both charges and recommended that she be

sentenced as a habitual offender to serve forty years’ imprisonment for possession of

methamphetamine with purpose to deliver and ten years’ imprisonment for possession of

drug paraphernalia to be served consecutively, which the circuit court imposed. This appeal

followed.

II. Standard of Review

We treat a motion for a directed verdict as a challenge to the sufficiency of the

evidence. Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491. In reviewing a sufficiency

challenge, we assess the evidence in the light most favorable to the State and consider only

the evidence that supports the verdict. Id. We will affirm a judgment of conviction if

substantial evidence exists to support it. Id. Substantial evidence is evidence that 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 a basis to support a conviction, but it must be consistent with the defendant’s

guilt and inconsistent with any other reasonable conclusion. Collins v. State, 2021 Ark. 35,

617 S.W.3d 701. Whether the evidence excludes every other hypothesis is left to the jury to

decide. Id. Further, the credibility of witnesses is an issue for the jury, not the court; the

trier of fact is free to believe all or part of any witness’s testimony and may resolve questions

of conflicting testimony and inconsistent evidence. Armstrong, supra.

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This court has noted that a criminal defendant’s intent or state of mind is seldom

apparent. Benton v. State, 2020 Ark. App. 223, 599 S.W.3d 353. One’s intent or purpose,

being a state of mind, can seldom be positively known to others, so it ordinarily cannot be

shown by direct evidence but may be inferred from the facts and circumstances. Id. Because

intent cannot be proved by direct evidence, the fact-finder is allowed to draw on common

knowledge and experience to infer it from the circumstances. Id. Because of the difficulty

in ascertaining a defendant’s intent or state of mind, a presumption exists that a person

intends the natural and probable consequences of his or her acts. Id.

III. Sufficiency of the Evidence

Appellant contends that her convictions must be reversed and dismissed because the

State failed to introduce sufficient evidence that “she actually or constructively possessed the

methamphetamine or pipe that was located on the couch.” However, the State responds

that appellant’s challenge is not preserved for review on appeal, and we must agree.

Arkansas Rule of Criminal Procedure 33.1 requires that an appellant move for a

directed verdict at the close of the State’s evidence and again at the close of all the evidence,

and that the failure to do so waives a challenge to the sufficiency of the evidence on appeal.

See Dickey v. State, 2016 Ark. 66, 483 S.W.3d 287; Flowers v. State, 362 Ark. 193, 208 S.W.3d

113 (2005). In Dickey, the supreme court specifically held that the failure to renew a motion

for directed verdict after the close of the State’s rebuttal testimony waived the issue of

sufficiency of the evidence. Id. Our supreme court further explained that a renewal is more

than a matter of mere form; it goes to the substance of the evidence arrayed against the

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criminal defendant. Id. Here, although the appellant initially made her motion for a

directed verdict, she failed to renew her motion after the close of the State’s rebuttal

testimony. Thus, appellant failed to preserve her challenge to the sufficiency of the evidence

for appellate review, and we must summarily affirm.

IV. Sentencing Order

Finally, we note that there is a clerical error in the sentencing order. Appellant was

charged as a habitual offender; appellant’s prior convictions were introduced at the

sentencing hearing; and the jury sentenced appellant as a habitual offender. However, the

box that would indicate that appellant was sentenced as a habitual offender is not checked

on the sentencing order. The circuit court is free to correct a clerical error to have the

judgment speak the truth. Carter v. State, 2019 Ark. App. 57, 568 S.W.3d 788. Thus, we

affirm appellant’s convictions but remand to the circuit court with instructions to correct

the sentencing order.

Affirmed; remanded to correct the sentencing order.

KLAPPENBACH and BROWN, JJ., agree.

James Law Firm, by: William O. “Bill” James, Jr., and Drew Curtis, for appellant.

Tim Griffin, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.

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