Roderick Shoulders v. State of Arkansas

Cite as 2020 Ark. App. 235
Reason: I attest to the accuracy
and integrity of this document
Date: 2021-07-06 12:48:37
ARKANSAS COURT OF APPEALS
Foxit PhantomPDF Version: DIVISION III
No. CR-19-599
9.7.5

Opinion Delivered: April 15, 2020
RODERICK SHOULDERS
APPELLANT
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
[NO. 30CR-18-72]
V.
HONORABLE CHRIS E WILLIAMS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Roderick Shoulders was charged with trafficking a controlled substance

after an Arkansas State Trooper found more than 200 grams of methamphetamine in the

trunk of Shoulders’s rental car during a traffic stop. Before trial, Shoulders moved to suppress

the evidence seized as a result of that stop, arguing that he did not consent to the trooper’s

search of his vehicle. The Hot Spring County Circuit Court held a hearing on Shoulders’s

motion and denied it, finding that the trooper had obtained Shoulders’s consent to search.

Shoulders proceeded to a jury trial, and a jury convicted him of one count of trafficking a

controlled substance; he was sentenced to forty years in the Arkansas Department of

Correction. Shoulders filed a timely notice of appeal and now argues that the circuit court

erred in denying his motion to suppress the evidence seized from his car. We affirm.
I. Standard of Review

In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a

de novo review based on the totality of the circumstances, reviewing findings of historical

facts for clear error and determining whether those facts give rise to reasonable suspicion or

probable cause, giving due weight to inferences drawn by the circuit court and proper

deference to the circuit court’s findings. Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607. A

finding is clearly erroneous, even if there is evidence to support it, when the appellate court,

after review of the entire evidence, is left with the definite and firm conviction that a mistake

has been made. Id. We defer to the superiority of the circuit court to evaluate the credibility

of witnesses who testify at a suppression hearing. Id. We reverse only if the circuit court’s

ruling is clearly against the preponderance of the evidence. Id. With our standard of review

in mind, we turn our attention to the evidence presented at the suppression hearing.

II. The Suppression Hearing

Trooper Timothy Callison testified that he pulled Shoulders over on Interstate 30

for speeding and for traveling in the left-hand lane when there was no traffic in the right-

hand lane.1 As Callison approached Shoulders’s car, he observed that Shoulders was

breathing heavily, he would not maintain eye contact, and his hands were visibly shaking

when he handed over his paperwork. Callison also discovered that Shoulders was driving a

rental car but was not the authorized driver pursuant to the rental agreement. Callison asked

1
Shoulders does not contest the validity of the initial traffic stop.
Shoulders to step out of the rented vehicle and had him sit in the front seat of his patrol car,

where their subsequent conversation was recorded.

Once in the patrol car, Callison asked routine questions, such as whether Shoulders

had been drinking or was too tired to drive, where he was driving from and how long he

had been there, and whether he had any traffic tickets or had ever been arrested. Shoulders

denied that he had been drinking or was too tired to drive. He told Callison that he had

driven the rented car from Kentucky to Houston, Texas, and was returning home. Callison

found the details provided by Shoulders to be inconsistent. 2 Callison expressly testified that

he asked Shoulders for consent to search the vehicle. In response to his request to search,

Shoulders asked what he meant; Callison said, “Is it okay for me to search?” Shoulders

answered, “Yes,” so Callison got out of his vehicle and began searching. When he popped

the trunk, he found a red suitcase and a camouflage bag. 3 Despite his testimony that

Shoulders gave consent to search, Callison agreed on cross-examination that Shoulders’s

response to his request for consent to search was inaudible on the recorded conversation.

He reiterated, however, that it was his testimony that Shoulders authorized him to search

the vehicle, saying, “I wouldn’t have done it without [his consent].”

Shoulders offered a different account of his encounter with Callison. According to

Shoulders, after Callison pulled him over and had him sit in the police car, Callison asked if

2
The car had been rented in Louisville, Kentucky, on February 26, and the traffic
stop occurred on February 28, but Shoulders contended that he had spent a few days in
Houston, Texas.
3
It was later determined that the bags contained more than 200 grams of
methamphetamine.
Shoulders minded if he searched the vehicle. Shoulders said, “I was like, no. Shook my head

no.” On cross-examination, Shoulders admitted that Callison asked him if he had a problem

with him searching the car, but Shoulders testified that he was under the impression that

Callison was asking permission to run his dog around the car. In fact, Shoulders testified

that he consented to having the dog run around the car. When Callison opened the trunk,

Shoulders objected to the search because he thought Callison only meant “the front part”

of the car.

In addition to hearing the live testimony of both Callison and Shoulders, the circuit

court watched the video and heard the audio exchange between the two in the patrol car.

Based on this evidence, the circuit court denied Shoulders’s motion to suppress. The court

explicitly found that Callison’s testimony was more credible than Shoulders’s, stating that

Callison was “clear, concise, without any discrepancies,” while Shoulders’s statements were

“completely unbelievable.” Accordingly, the court denied the motion to suppress the

evidence.

III. Discussion

Pursuant to Arkansas Rule of Criminal Procedure 11.1(a), “[a]n officer may conduct

searches and make seizures without a search warrant or other color of authority if consent

is given to the search.” The State has the burden of proving by clear and positive evidence

that consent to a search was freely and voluntarily given and that there was no actual or

implied duress or coercion. Ark. R. Crim. P. 11.1(b). The United States Supreme Court

has held that the test for a valid consent to search is that the consent be voluntary, and

“[v]oluntariness is a question of fact to be determined from all the circumstances.” Ohio v.
Robinette, 519 U.S. 33, 40 (1996); see also Welch v. State, 364 Ark. 324, 328–29, 219 S.W.3d

156, 158 (2005).

On appeal, Shoulders contends that his motion to suppress should have been granted

because the evidence was “clear” that he misunderstood the scope of the search that Callison

intended to conduct. Reduced to its essence, his argument is that the circuit court should

have believed his testimony over Callison’s.

Clearly, Callison and Shoulders offered different versions of what did or did not

occur between them. Callison was firm that Shoulders gave his consent, while Shoulders

was adamant that he did not. Although the conversation between the two was recorded,

the recording sheds little light on the discrepancy in the testimony. With regard to whether

Shoulders gave or withheld consent, the recorded conversation reflects the following

exchange:

CALLISON: Mr. Shoulders, it’s not making no sense, partner. You got nothing in
there going to get you in trouble, right? I run my dog around that car
he ain’t going to smell nothing, right? You ain’t got no drugs in there?
You got a problem with me searching the car?

SHOULDERS: I mean––

CALLISON: Is it okay with you if I search the car just to make sure there’s nothing
in there and get you on the way?

SHOULDERS: (Inaudible.)

CALLISON: Okay. Well, I’ll be right back. . . .

As Callison admitted, the recording contains an inaudible response from Shoulders to the

direct question “Is it okay if I search the car?” Callison stated that the inaudible answer was
“yes,” while Shoulders testified that the inaudible answer was “no.” The circuit court was

left with the task of determining credibility on the basis of this directly conflicting testimony.

Our supreme court has been clear that “[w]hen the testimony of an officer and an

appellant are in direct conflict, . . . the decision amounts simply to the question of which

witness to believe, which is a decision left to the trier of fact.” Nelson v. State, 365 Ark. 314,

321, 229 S.W.3d 35, 41 (2006) (citing Hamm v. State, 296 Ark. 385, 757 S.W.2d 932

(1988)). In Nelson, the supreme court determined that the circuit court gave greater

credence to the police officer’s testimony regarding whether consent was given and that the

defendant’s credibility had been “weakened by the fact that he had more at stake than the

officer and the fact that he gave an improbable explanation of his circumstances.” Id.

Therefore, the supreme court concluded that the circuit court’s decision was not clearly

against the preponderance of the evidence. Id.

That is precisely the situation here. The circuit court expressly determined that

Callison was more credible in his testimony than Shoulders was, and it believed Callison’s

testimony that Shoulders consented and that he would not have searched the vehicle if

Shoulders had not consented. On appeal, Shoulders is essentially asking us to reweigh the

evidence, which we do not do. See, e.g., Crozier v. State, 2016 Ark. App. 307, at 4, 496

S.W.3d 401, 404 (“This court neither weighs the evidence nor evaluates the credibility of

witnesses.”); Wright v. State, 2010 Ark. App. 425, at 5, 375 S.W.3d 695, 698 (“[I]t is the

[circuit] court’s province to weigh the evidence and resolve the credibility of the witness.”).

Given our deference to the circuit court’s credibility determinations, we affirm.

Affirmed.
GLADWIN and BROWN, JJ., agree.

Ogles Law Firm, P.A., by: John Ogles, for appellant.

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