Glenn Robert Lema v. State of Arkansas

Cite as 2024 Ark. App. 140
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-787

Opinion Delivered February 28, 2024
GLENN ROBERT LEMA
APPELLANT APPEAL FROM THE YELL COUNTY
CIRCUIT COURT, SOUTHERN
DISTRICT
V.
[NO. 75SCR-21-30]

STATE OF ARKANSAS HONORABLE JERRY DON RAMEY,
APPELLEE JUDGE
AFFIRMED

RITA W. GRUBER, Judge

Glenn Robert Lema was convicted by a jury on four criminal counts: (1) possession

of methamphetamine, heroin, or cocaine with purpose to deliver; (2) possession of drug

paraphernalia; (3) possession of a Schedule I controlled substance with purpose to deliver;

and (4) terroristic threatening. He was convicted on all charges. 1 Lema now appeals, raising

two points. He challenges the circuit court’s admission of evidence about a subsequent bad

act and the denial of his motions for a directed verdict.

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The sentencing order reflects that Lema was sentenced to concurrent terms of 96
months’ imprisonment on Count No. 1 and 48 months’ imprisonment on Count No. 2.
The sentencing order reflects “fine only” for Counts Nos. 3 and 4, and a total amount of
$17,500 in fines. The order does not reflect the circuit court’s oral pronouncement of
separate amounts for each conviction: $10,000 for Count No. 1, $4000 for Count No. 2,
$1000 for Count No. 3, and $2500 for Count No. 4.
For purposes of double jeopardy, we first review the denial of a motion for directed

verdict. Dixon v. State, 2011 Ark. 450, at 8, 385 S.W.3d 164, 171. A motion for directed

verdict is a challenge to the sufficiency of the evidence. Id. When the sufficiency of the

evidence is challenged on appeal, we consider only the evidence that supports the verdict

and affirm if substantial evidence supports it. Id. Substantial evidence is evidence of such

sufficient force and character that it will, with reasonable certainty, compel a conclusion one

way or the other without resort to speculation or conjecture. Green v. State, 2013 Ark. 497,

at 5, 430 S.W.3d 729, 736. We need only consider the testimony supporting the verdict of

guilty. Id. Circumstantial evidence may provide a basis to support a conviction if it is

consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion.

Id. Whether the evidence excludes every other hypothesis is left to the jury to decide, and

credibility of witnesses is an issue for the jury. Id.

Lema was locked out of his apartment in the early morning hours of April 16, 2021.

Residents of the apartment complex had been notified previously that monthly pest-control

treatments were scheduled for that day. Around 2:00 a.m., hoping to get his door unlocked,

Lema knocked and yelled at the apartment manager’s front door and window. He got no

response from the manager, Efrain Ramos,2 or Ramos’s wife. Around 8:30 a.m., Lema

approached Ramos while he was accompanying Paul Newport, who had come to perform

the pest-control treatment. Ramos said he would not unlock Lema’s door until he and

2
A language interpreter assisted Ramos at trial.

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Newport got to that apartment. Ramos, perceiving that Lema was threatening him, called

the police.

When Ramos opened Lema’s apartment door, Newport saw a glass pipe and white

residue. Newport believed the items to be drugs and drug paraphernalia because of his

experience with his brother’s drug addiction. Lieutenant Tommy Broadstock and Chief Rick

Padgett of the Danville Police Department had arrived at the apartment complex by that

time. Broadstock arrested Lema for making threats and put him in a patrol car. Padgett went

to Lema’s apartment at his request to get his blood-pressure medication. Newport directed

Padgett’s attention to the items he had seen. Lema signed a consent to search, writing on the

form, “I don’t know what the manager put in my APT.” Lema denied ownership of the drugs

and paraphernalia, claiming that someone else had put them there. Subsequent testing

revealed the presence and quantity of methamphetamine and marijuana found in his

apartment.

Ramos testified at trial that Lema shouted aggressively at Ramos and his wife,

frightening both of them, and later threatened to shoot Ramos. Lema testified in his own

defense, disputing Ramos’s testimony and suggesting that an unknown person put the drugs

and paraphernalia in his apartment while he was away.

Lema stated, “I don’t do drugs. I don’t sell drugs. I don’t carry drugs.” On cross-

examination the prosecutor asked, “Now, your position is, that you’re not a drug user?” Lema

answered, “That’s correct.” The prosecutor continued, “But yet, you were arrested three

months later.”

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Defense counsel objected that Lema’s subsequent arrest, which occurred when

methamphetamine was found in a car Lema was driving, was inadmissible because it was

character evidence and prejudicial. The circuit court conducted a bench conference and

sustained the objection in part, agreeing that the prejudicial value of the subsequent arrest

outweighed any probative value, but allowed the prosecutor to question Lema further about

the incident.

In open court, before further questioning, Lema interjected, “Your Honor, I don’t

mind answering his question[.]” He proceeded to explain that there were other occupants in

the car, and he asserted that a passenger claimed possession of the methamphetamine. Yell

County Sheriff’s Deputy Hayden Whorton testified in rebuttal that he made the traffic stop

on August 7, 2021 (almost three months after Lema’s arrest in the current case) and found

methamphetamine in a small plastic container on the driver’s-side floorboard.

Lema moved for a directed verdict at the close of the State’s case and renewed his

motion at the close of all the evidence. He contended that the State had not introduced

sufficient evidence of actual or constructive possession of methamphetamine, marijuana, or

drug paraphernalia. He argued that he did not have exclusive possession of the apartment

and noted that he was not there when the drugs were found. The circuit court denied each

motion for directed verdict.

The State is not required to prove literal physical possession of the contraband; we

look to see whether the contraband was located in a place under the accused’s dominion and

control. Terry v. State, 2018 Ark. App. 435, at 4, 559 S.W.3d 301, 304. Constructive

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possession can be implied when the contraband was found in a place immediately and

exclusively accessible to the accused and subject to the accused’s control. Id. To prove

constructive possession, the State must establish that the accused exercised “care, control,

and management over the contraband.” Id. Additionally, there must be some evidence that

the accused had knowledge of the presence of the contraband. Id.

Constructive possession may be established by circumstantial evidence. Id. Control

over and knowledge of the contraband can be inferred from the circumstances, such as the

proximity of the contraband to the accused, the fact that it is in plain view, the ownership of

the property where the contraband is found, and the accused’s suspicious behavior. Id. at 4–

5. Location of the contraband in close proximity to the accused can be a sufficient linking

factor to support constructive possession, and the improbable nature of the accused’s

explanations can be considered. Id. at 5.

Lema argues that there was no evidence that he knew of the presence of

methamphetamine, marijuana, or drug paraphernalia in his apartment. He claims that there

was insufficient evidence that he possessed those items, and he suggests they were placed in

the apartment by another person. He points to testimony that he had been locked out for

several hours and was not there when the items were found.

Viewed in the light most favorable to the State, the evidence is as follows. Lema had

been notified ahead of time that pest-control treatment would take place on April 16. He

exhibited suspicious behavior early that morning after finding himself locked out of his

apartment. Hoping to regain access, he went to the manager’s apartment around 2:00 a.m.;

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despite yelling and beating on the front door and window, he got no response from either

the manager or his wife. Around 8:00 a.m., Lema threatened the manager when he refused

to unlock Lema’s apartment before taking the pest-control employee there to begin treating

it for pests. After Lema was arrested for threatening behavior, he asked for the blood-pressure

medicine that was in his apartment. He consented to a search of the apartment but wrote on

the consent form that he did not “know” what the manager had put in his “APT.” The

manager and the pest-control employee saw drugs and drug paraphernalia on the coffee table

when the manager opened the door, and Police Chief Padgett saw the items when he arrived.

Lieutenant Broadstock and Padgett found drug paraphernalia and items containing drugs or

with residue throughout the apartment: the items were sitting out in the living room, under

the living-room-couch cushion, in the hall closet, and in the kitchen.

The jury could reasonably have found that Lema’s aggressive attempts to regain entry

before the door was opened for pest-control treatment negated his hypothesis that someone

else with access to his apartment had placed the contraband there. The location of the

contraband within the apartment where Lema was the sole occupant constituted a linking

factor sufficient to support his constructive possession of the items. His arguments go to the

weight of the evidence and the credibility of witnesses, which were matters for the jury to

decide. We hold there was substantial evidence for the jury to find that Lema possessed the

drugs and drug paraphernalia.

Lema also contends that the circuit court abused its discretion by allowing the State

to cross-examine him about a traffic stop involving methamphetamine subsequent to the

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incident that led to charges in the present case. Under Arkansas Rule of Evidence 404(b),

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person

in order to show that he acted in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.”

As recited earlier in our opinion, Lema’s counsel objected at trial when the prosecutor

began to cross-examine Lema about the subsequent incident involving drugs. The circuit

court sustained the objection in part, allowing the prosecutor to question Lema further about

possessing methamphetamine but barring questions about his arrest in that incident. Lema

volunteered in open court, “Your Honor, I don’t mind answering his question.” There was

no further objection, and the prosecutor proceeded to question Lema about the subsequent

incident.

When a question previously objected to is repeated, and there is no second objection,

the matter is waived on appeal. Vaughan v. State, 338 Ark. 220, 225, 992 S.W.2d 785, 788

(1999). Here, Lema’s statement that he would answer the State’s question, coupled with no

further objection, amounted to a waiver of his initial objection. See, e.g., Hefley v. State, 281

Ark. 324, 325, 663 S.W.2d 732, 732 (1984) (holding that a withdrawn objection is a waiver);

see also Bates v. State, 271 Ark. 699, 610 S.W.2d 257 (1981) (holding that when an objection

is withdrawn, it is as if the objection was never made); cf. Beare v. State, 2010 Ark. App. 544,

at 6 (holding that it is proper to overrule an objection by an appellant’s counsel if the

appellant expresses a willingness to answer the question despite the objection).

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Lema, over his counsel’s initial objection, elected to answer the State’s questions. He

cannot now complain on appeal.

Affirmed.

GLADWIN and BARRETT, JJ., agree.

Knutson Law Firm, by: Gregg A. Knutson, for appellant.

Tim Griffin, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.

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