Opinion
No. CACR 11-575
01-04-2012
JAMES EDWARD DANIELS, JR. APPELLANT v. STATE OF ARKANSAS APPELLEE
APPEAL FROM THE DREW COUNTY
CIRCUIT COURT,
[NO. CR-2010-153-3A]
HONORABLE ROBERT BYNUM
GIBSON, JR., JUDGE
AFFIRMED
JOHN B. ROBBINS , Judge
Appellant James Edward Daniels, Jr., was convicted by a Drew County jury of possession of marijuana with the intent to deliver and possession of methamphetamine with the intent to deliver. Daniels received a fifty-year prison sentence regarding the methamphetamine and a fifteen-year prison sentence regarding the marijuana, to run consecutively. The trial judge directed a verdict on the charge of first-degree child endangerment, and the jury found Daniels not guilty of attempted first-degree battery. Daniels appeals, contending that (1) the conviction for possession of methamphetamine with intent to deliver is not supported by sufficient evidence, and (2) the trial court abused its discretion in denying his request for a continuance. We disagree with his arguments and affirm.
We first address Daniels's argument that his conviction for possession of methamphetamine with intent to deliver is not supported by sufficient evidence. In a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the conviction. Heydenrich v. State, 2010 Ark. App. 615. We determine whether there is substantial evidence, direct or circumstantial, to support the conviction. Id. The trier of fact resolves the questions of conflicting testimony, inconsistent evidence, and whose testimony to believe. Williams v. State, 2011 Ark. App. 675.
Daniels was charged with possession of methamphetamine with intent to deliver, Ark. Code Ann. § 5-64-401(a). Actual possession is not required; constructive possession can suffice. In addition, actual possession may suffice even if it is brief. Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993); Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004).
The evidence is largely undisputed. Daniels was driving his silver Pontiac Bonneville on the night of August 26, 2010, along Highway 133 when officers attempted to stop him. Although he initially pulled over, as officers approached, he sped away. Law enforcement fired bullets into the Bonneville's tires to stop his flight. During the chase, objects were thrown from the vehicle. Daniels ultimately stopped. Officers located nearly two pounds of marijuana and over twelve grams of methamphetamine on the road along the path of the approximately one-mile chase. Daniels was found in the driver's seat, his wife and stepdaughter were in the car, and Justin Jones was in the back seat.
Daniels's vehicle struck the open door of a police car as he sped away. An officer was standing beside his vehicle's door as it was struck, which in turn hit the officer. This led to the charge of attempted first-degree battery.
Because a minor was in the car, this led to the charge of first-degree child endangerment.
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In a statement given to police, Daniels claimed ownership of the marijuana but said that the methamphetamine belonged to Jones, whom he called, "Bro." He admitted fleeing in order to throw out the drugs. He also admitted that he had previously sold methamphetamine, probably eight times, to the buyer they were to meet that day. Daniels said Bro was selling his "ice" for $100 per gram, and he was to receive "a couple hundred extra for bringing it."
At trial, Daniels stated that he did not intend to possess Jones's methamphetamine, that he only touched it to get rid of it, and that he was not going to be paid upon the sale of this methamphetamine. Daniels admitted that he had sold methamphetamine in the past. He testified that the intended buyer called him seeking methamphetamine, he (Daniels) found Jones (who had methamphetamine to sell) for the buyer, and he agreed to drive Jones to the intended buyer. Daniels's wife testified that her husband was the one who made the drug deal with the buyer over the phone and that he was the one who threw out "the ice."
On appeal, Daniels candidly admits that he knew Jones possessed methamphetamine, he knew that he was driving Jones to a location for the purpose of completing a drug deal, and he briefly handled the methamphetamine when Jones put it in the front of Daniels's vehicle. He argues, however, that because it was not his drug deal this time, there was insufficient proof to establish his possession of methamphetamine with intent to deliver. We disagree.
The amount of methamphetamine recovered (over twelve grams) was well in excess of the amount necessary to trigger the statutory presumption that it was possessed with the intent to deliver. See Singleton v. State, 2011 Ark. App. 145. Although Daniels claims not to have wanted to possess the methamphetamine, the jury did not have to believe this self-serving testimony. See Newton v. State, 2011 Ark. App. 190. The jury had before it Daniels's admissions that he had sold methamphetamine to the intended buyer in the past, that he was to be paid for driving Jones to his buyer, and that he personally discarded the methamphetamine while he fled from police. See id. The jury also had his wife's testimony that Daniels made this deal over the phone. This is substantial evidence to support his conviction for possessing methamphetamine with the intent to deliver.
Daniels also argues that the trial court erred in denying his request for a continuance, which he wanted in order to hire his own private defense counsel. Whether to grant a continuance is left to the sound discretion of the trial court that will not be overturned in the absence of an abuse of that discretion resulting in prejudice that amounts to a denial of justice. Price v. State, 2009 Ark. App. 664. A defendant has a constitutionally protected right to counsel, but that right is not absolute and may not be used to frustrate the inherent power of a court to command an orderly, efficient, and effective administration of justice. Id. Once a defendant has competent counsel, the court must balance the delay in changing counsel with the public's interest in prompt dispensation of justice. Id. If a change would result in a postponement because of new counsel's need to prepare, the court may consider the reasons for the change, whether counsel has been identified, whether the defendant acted diligently in seeking a change, and whether denial will likely result in prejudice to the defendant. Id. Lack of diligence alone may be sufficient to deny the request for a continuance. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). One cannot use the right to counsel as a sword, manipulated to delay trial or to play cat-and-mouse with the court. Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004).
The chronology of events is important for this discussion. Daniels was arrested on August 26, 2010. Daniels appeared in court on August 27, 2010, where he was declared indigent and appointed a public defender, Sandra Bradshaw. Bradshaw filed a formal entry of appearance on September 23, 2010. Ms. Bradshaw also filed a formal waiver of arraignment for Daniels, entered a not-guilty plea, and demanded a jury trial. At his next appearance on October 12, 2010, Daniels was present with Bradshaw when he asked the trial judge if his parents could hire a private attorney for him. The trial judge responded that Daniels had the right to do so, but that if he retained counsel, "I will not allow new counsel to cause a continuance" from the December 14, 2010 trial date. Daniels replied, "Yes, sir."
The parties reconvened on November 15, 2010, and Bradshaw was present on behalf of Daniels. An attorney named Dale West was present as well. West told the trial judge that although he had accepted a $1000 retainer from Daniels's mother, he was returning the money because he did not want to accept the case. West never entered an appearance in the case. Bradshaw then asked for a continuance of the December trial date because she was not ready. The trial judge denied the request for a continuance. Daniels then stated to the trial judge that he had "nothing against Ms. Bradshaw," but his parents hired West shortly after the October hearing, and he would suffer due to West's delay in deciding to turn down his case. The trial judge took that into consideration but decided not to grant a continuance because the facts of the case were relatively simple, the trial setting was important to a co-defendant in jail awaiting trial, and Bradshaw was a good attorney. The trial judge moved the trial to December 16 for Bradshaw but remarked that this was "the best I can do." Bradshaw replied, "That's fine. Thank you."
On Thursday, December 16, 2010, the parties appeared for trial. Bradshaw renewed her motion for a continuance, but the trial court denied it. Bradshaw informed the trial court that Daniels rejected a plea offer against her advice. She also stated to the trial court that Daniels admittedly possessed the marijuana, but he was fighting the other charges. Trial proceeded. The trial judge directed a verdict on one count, the jury acquitted Daniels on another count, and he was convicted of the two drug-related offenses.
We hold that the trial judge did not abuse his discretion and that Daniels failed to demonstrate prejudice amounting to a denial of justice. Daniels identified no new attorney he desired to retain, attempted to retain, or who was willing to be retained, in the month prior to trial. Daniels was represented at all times by a public defender whose qualifications were never questioned, and the trial judge made clear from the outset that no continuance would be granted on the basis of a change of attorneys. Bradshaw successfully defended Daniels on two of the four criminal charges tried that day. Of the two convictions, one crime was admitted by Daniels prior to the beginning of trial. We affirm the trial court's discretionary decision to deny Daniels a continuance.
Affirmed.
HART and ABRAMSON, JJ., agree.