Larry Britt v. State of Arkansas

Cite as 2020 Ark. App. 486
Reason: I attest to the
accuracy and integrity of this
ARKANSAS COURT OF APPEALS
document
Date: 2021-07-15 11:31:39 DIVISION IV
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9.7.5 No. CR-19-839

Opinion Delivered: October 21, 2020

LARRY BRITT
APPELLANT APPEAL FROM THE BOONE
COUNTY CIRCUIT COURT
V. [NO. 05CR-16-72]

STATE OF ARKANSAS HONORABLE GORDON WEBB,
APPELLEE JUDGE
AFFIRMED

MIKE MURPHY, Judge

Appellant Larry Britt, Jr., appeals from an order of the Boone County Circuit Court

denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal

Procedure 37.1. Britt raises eight points on appeal claiming ineffective assistance by his trial

counsel. We affirm.

On January 28, 2016, Arkansas State Police trooper William Clements initiated a

traffic stop with Britt for speeding. After initiating the stop, Clements determined that Britt

had a warrant for his arrest for failure to appear. Britt informed Clements that the vehicle

was rented and that he had been the only person to drive it, but he could not produce a

valid rental contract. Britt originally told Clements that he did not have any weapons on

him and there was nothing in the car that could get him in trouble. Britt then consented to

a search of the vehicle and told Clements that he had a gun under the front passenger seat
and that he is a felon. Clements placed Britt under arrest. As a result of the search, a handgun,

a plastic bag with sixteen pills that were identified and later tested positive by the Arkansas

State Crime Laboratory as hydrocodone, and a backpack containing both a substance that

tested positive for marijuana and drug paraphernalia were all found in the vehicle. Britt

admitted to Clements that the backpack was his. At the jury trial, Clements testified how

polite and cooperative Britt was even after being placed under arrest. The jury had the

benefit of an audio/video recording of the traffic stop, which contained Britt’s admission

that he had a gun, that he is a felon, and that the backpack was his.

On February 15, 2017, the jury convicted Britt of simultaneous possession of drugs

and a firearm, possession of hydrocodone, felon in possession of a firearm, possession of

marijuana, possession of drug paraphernalia, and a speeding violation. He was sentenced to

fifty-six years in the Arkansas Department of Correction on the three felony convictions,

concurrent sentences of six months on the misdemeanors, and a total fine of $10,050. Britt

timely filed a notice of appeal and retained appellate counsel, but he voluntarily dismissed

his direct appeal on January 25, 2018. On February 8, 2018, he filed a petition for

postconviction relief under Rule 37, claiming ineffective assistance of trial counsel and

asking for a new trial. After a hearing, the trial court entered an order denying Rule 37 relief

on May 3, 2019. Britt now timely appeals from that order.

When reviewing a trial court’s ruling on a Rule 37.1 petition, we will not reverse

the trial court’s decision granting or denying postconviction relief unless it is clearly

erroneous. Sorum v. State, 2019 Ark. App. 354, at 3–4, 582 S.W.3d 18, 22. A finding is

clearly erroneous when, although there is evidence to support it, the appellate court after

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reviewing the entire evidence is left with the definite and firm conviction that mistake has

been committed. Id.

Our standard of review also requires that we assess the effectiveness of counsel under

the two-prong standard set forth by the Supreme Court of the United States in Strickland v.

Washington, 466 U.S. 668 (1984). In asserting ineffective assistance of counsel under

Strickland the petitioner must first demonstrate that counsel’s performance was deficient.

Gould v. State, 2019 Ark. App. 418, 585 S.W.3d 182. This requires a showing that counsel

made errors so serious that counsel was not functioning as the “counsel” guaranteed the

petitioner by the Sixth Amendment. Id. The defendant claiming ineffective assistance of

counsel has the burden of overcoming that presumption by identifying the acts and

omissions of counsel which, when viewed from counsel’s perspective at the time of trial,

could not have been the result of reasonable professional judgment. Id.

Second, the petitioner must show that the deficient performance prejudiced the

defense, which requires a demonstration that counsel’s errors were so serious as to deprive

the petitioner of a fair trial. Vaughn v. State, 2017 Ark. App. 241, 519 S.W.3d 717. This

requires the petitioner to show that there is a reasonable probability that the fact-finder’s

decision would have been different absent counsel’s errors. Id. A reasonable probability is a

probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a

petitioner makes both Strickland showings, it cannot be said that the conviction resulted

from a breakdown in the adversarial process that renders the result unreliable. Id.

At the evidentiary hearing on Britt’s petition, Clements and Phillip Moon, Britt’s

trial counsel, testified. Clements testified to the events of the traffic stop and stated that he

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would have arrested Britt regardless of his admissions because Britt had an outstanding

warrant. Moon testified concerning his representation of Britt below and stated that he was

hired specifically to take the case to trial. Moon testified that he discussed with Britt from

the beginning that he would need to testify if he wanted to go to trial. Moon testified that

during his representation, he communicated with Britt about twenty-five times. In order to

get Britt the lightest sentence possible, his strategy was to have Britt admit being a felon in

possession of a firearm and possession of marijuana and drug paraphernalia but not admit

possession of the hydrocodone pills. Moon elaborated that his strategy was for the jury to

find that Britt was a credible witness and that while he was guilty of the other offenses, he

was telling the truth that the hydrocodone pills were not his. The gist of the defense was

that since the car was rented, Britt did not know that the hydrocodone pills were in the

vehicle because the pills were found on the floor between the driver’s seat and console,

separate from the backpack. If the jury believed him and found him not guilty on that

charge, he would have been found not guilty on the simultaneous-possession charge and

the possession-of-hydrocodone charge—the two crimes most likely to draw the heaviest

penalties. Moon testified that his strategy fell apart when Britt decided midtrial that he no

longer wanted to testify.

When asked why he did not file a motion to sever the possession-of-a-firearm-by-

certain-person charge, Moon testified he did it as a strategy decision because he believed

Britt would testify in his defense. He stated that he explained to Britt that he would have to

admit certain things regarding his prior record to lend himself credibility. Moon testified

that he chose not to stipulate to the previous convictions because there was always the

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possibility the State could have messed up in attempting to get the conviction introduced.

Moon testified that he did not move to suppress or file a motion in limine to exclude any

admissions or prejudicial statements made by Britt because in his experience, it would not

have been successful.

Britt’s postconviction counsel also asked Moon why he did not move for a directed

verdict on the simultaneous-possession charge because counsel claimed the State failed to

meet the elements of the crime, specifically, that Britt was in possession of a firearm. Moon

explained that he believed the State had met its burden because he relied on the jury

instruction and that the situation met the definition of a firearm as contained in the jury

instruction. Additionally, Britt’s postconviction counsel asserted that Moon should have

attacked the State’s case because it failed to prove “the nexus” between the drugs and the

firearm. Moon explained that “the nexus” is not an element of the crime, and regardless,

the gun and the drugs were found within a foot or two of each other thus establishing a

sufficient connection. Accordingly, Moon believed the State had proved its prima facie case.

Moon also referred to his defense strategy that Britt was not in simultaneous possession

because the hydrocodone pills were not his.

Concerning Britt’s habitual-offender status, Moon testified that he argued prior to

trial that because Britt had previously been sentenced under Act 346, he was not, in fact, a

convicted felon.1 He explained that the trial court overruled his argument but that he

1
Act 346 of 1975 is codified at Ark. Code Ann. §§ 16-93-301 to -303 (Repl. 2016
& Supp. 2019). Section 16-93-303 provides in pertinent part:

(a)(1)(A)(i) When an accused enters a plea of guilty or nolo contendere prior to
an adjudication of guilt, the circuit court or district court, in the case of a defendant

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preserved it. Moon testified that if he had been successful in convincing the jury that Britt

was not in possession of the hydrocodone pills, he would not have been convicted of the

simultaneous-possession-of-drugs-and-firearm and possession-of-hydrocodone charges;

further, if his Act 346 argument was appealed and found to be correct that potentially Britt

would be exonerated of everything except the misdemeanors.

In a thirteen-page order, the trial court denied Britt’s Rule 37 petition. The trial

court found that Moon is an experienced criminal trial lawyer with thirty-four years of

practice, has rapport with Boone County juries, and that he had given “very credible”

testimony concerning his trial strategy.

On appeal, Britt first argues that his trial counsel was ineffective for not severing the

possession-of-a-firearm-by-certain-person offense from the other charges in the case. He

contends that a presumed prejudice resulted.

Matters of trial strategy and tactics, even if arguably improvident, fall within the realm

of counsel’s professional judgment and are not grounds for finding ineffective assistance of

counsel. Hartman v. State, 2017 Ark. 7, at 4, 508 S.W.3d 28, 32. The reviewing court must

indulge in a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance. Id.

who previously has not been convicted of a felony, without making a finding of guilt
or entering a judgment of guilt and with the consent of the defendant, may defer
further proceedings and place the defendant on probation for a period of not less
than one (1) year, under such terms and conditions as may be set by the circuit court
or district court.

The statute further provides for the expungement of the defendant’s record upon fulfillment
of the terms and conditions of the probation. Id.

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Here, Britt admitted to police that he was a felon in possession of a firearm and that

the backpack containing marijuana and paraphernalia was his. Faced with Britt’s admissions,

counsel concluded that Britt needed to gain a measure of credibility with the jury. Moon,

through strategic concessions, would have drawn the sting out of Britt’s incriminating

statements; and when Britt testified, Moon intended to lend credibility to Britt’s denial of

the hydrocodone pills that formed a necessary element of the most serious charge. In order

for such a strategy to be successful, Britt needed to testify.

Britt claims on appeal that Moon failed to communicate the possibility of severance.

Notably, Britt failed to testify at his Rule 37 hearing, leaving us with the unrefuted

testimony of Moon that he met with Britt about twenty-five times to discuss the trial strategy

and important aspects of the case. Moon credibly testified that he was hired to take the case

to trial. He further testified that he discussed with Britt how important his testimony would

be and that Britt assured him he would testify. Britt even testified at the outset of the trial

and outside the hearing of the jury of his intention to take the stand. The trial court found

it was part of Moon’s strategy not to sever the charges. We hold that this finding by the trial

court was not clearly erroneous.

Britt also argues that Moon was ineffective for not stipulating to the prior felony

convictions and instead allowing them to be admitted in the State’s case-in-chief. The State

introduced the sentencing order of Britt’s prior convictions for two counts of possession of

a controlled substance and driving while intoxicated (drugs). Britt asserts that not only was

he prejudiced because the jury was informed that he is a convicted felon, but the prior

convictions were similar in nature to the ones at hand. However, as the trial court explained,

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the decision not to stipulate to the prior convictions was consistent with Moon’s strategy so

that Britt’s record would be introduced to verify that Britt had nothing to hide when he

admitted he was a convicted felon. Britt’s credibility was an essential part of the defense

strategy and by not stipulating to the prior felony convictions, the jury did not have to

speculate as to what the prior convictions were. Again, the trial court found it was part of

Moon’s strategy not to stipulate to the prior convictions and we hold this finding was not

clearly erroneous. See Hartman, 2017 Ark. 7, at 5, 508 S.W.3d at 32 (a trial strategy may be

reasonable even though counsel’s tactical choices might have been different with the benefit

of hindsight).

Britt’s third point that his trial counsel was ineffective is that Moon should have filed

a motion to suppress Britt’s statements admitting he is a felon and had a firearm because the

statements were not knowingly, intelligently, and voluntarily given. A petitioner does not

demonstrate the requisite prejudice for a claim of ineffective assistance of counsel based on

the failure to make a motion or objection if the petition does not establish that the motion

or objection would have been successful. Gould, 2019 Ark. App. 418, at 9, 585 S.W.3d at

189. At the Rule 37 hearing, Moon testified that in his experience and specifically his

experience in Boone County, he did not feel a motion to suppress would have been

successful. The trial court failed to make a finding as to whether the motion could have

been successful. Instead, it found that it was a reasonable strategic decision for Britt to

acknowledge his admission and to show that he had been honest with police from the

beginning.

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Britt failed to establish whether the motion would have been successful because he

failed to get a ruling from the trial court. This failure precludes us from reviewing it on

appeal. See Nutt v. State, 2020 Ark. App. 137, at 8, 594 S.W.3d 907, 912. Accordingly, Britt

cannot demonstrate the necessary prejudice under Strickland.

Next, Britt argues that Moon was ineffective for not filing a motion in limine

concerning the statements Britt made on the audio/video recording of the traffic stop. Britt

asserts that under the balancing test pursuant to Ark. R. Evid. 401 and Ark. R. Evid. 403,

the testimony about the warrants, Britt’s being a felon, and prior drug use were more

prejudicial than probative in this case. At the hearing, Moon testified that he did not file the

motion because he intended for Britt to testify and because he did not believe it would be

granted. Again, the trial court found that the failure to file the motion was justified based

on Moon’s trial strategy because the statements show that Britt was honest with the police

from the beginning. As with the previous point, the trial court failed to address the potential

success of the motion, and Britt failed to get a ruling. This failure again precludes us from

reviewing it on appeal, and we affirm this point.

Britt’s fifth point is that Moon was ineffective for not making a directed-verdict

motion to challenge the sufficiency of the evidence on the simultaneous-possession-of-

drugs-and-firearm charge. Again, when it is asserted that counsel was ineffective for the

failure to make a motion or an argument, the petitioner must show that the motion or

argument would have been meritorious because the failure to make an argument that is

meritless is not ineffective assistance of counsel. Gould, 2019 Ark. App. 418, at 9, 585

S.W.3d at 189. Therefore, Britt must demonstrate that the appellate court would have found

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that the evidence adduced at trial was insufficient to support a conviction and would have

overturned his convictions for that reason. Conley v. State, 2014 Ark. 172, at 10, 433 S.W.3d

234, 241–42. Because the trial court determined that no prejudice resulted from the failure

to make the directed-verdict motions, the appeal of that decision requires us to review

whether there was sufficient evidence to support the verdicts.

Motions for directed verdict are treated as challenges to the sufficiency of the

evidence. Swaim v. State, 78 Ark. App. 176, 79 S.W.3d 853 (2002). When reviewing the

denial of a directed-verdict motion, the appellate court will look at the evidence in the light

most favorable to the State, considering only the evidence that supports the judgment or

verdict and will affirm if there is substantial evidence to support the verdict. Id. Substantial

evidence is that which is of sufficient force and character that it will, with reasonable

certainty, compel a conclusion without resorting to speculation or conjecture. Jenkins v.

State, 2020 Ark. App. 45, 593 S.W.3d 51. Evidence is sufficient to support a verdict if it is

forceful enough to compel a conclusion one way or the other. Swaim, 78 Ark. App. 176,

79 S.W.3d 853.

Britt suggests three arguments that Moon should have used to support a directed-

verdict motion below. He contends that the record is void of any testimony that the firearm

found in his vehicle was a firearm as defined under the Code. He argues that the firearm

was not readily accessible because there was no testimony that bullets or projectiles were

found. And he argues that there was no testimony to establish a nexus between the drugs

and the firearm.

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Arkansas Code Annotated section 5-74-106 (Repl. 2016) provides that no person

shall unlawfully commit a felony violation of Arkansas Code Annotated section 5-64-419

(manufacturing, delivering, or possessing with intent to manufacture or deliver a controlled

substance) while in possession of a firearm. In order to sustain a simultaneous-possession

conviction, the proof must show that appellant possessed a firearm and that a connection

existed between the firearm and the controlled substance. Rabb v. State, 72 Ark. App. 396,

403, 39 S.W.3d 11, 16 (2001). Arkansas Code Annotated section 5-1-102 (Repl. 2013)

defines “firearm” as follows:

(6)(A) “Firearm” means any device designed, made, or adapted to expel a projectile
by the action of an explosive or any device readily convertible to that use.

(B) “Firearm” includes:

(i) A device described in subdivision (6)(A) of this section that is not loaded or
lacks a clip or another component to render it immediately operable; and

(ii) Components that can readily be assembled into a device described in
subdivision (6)(A) of this section.

In Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998), officers found a small

amount of methamphetamine in a vehicle’s front passenger seat in close proximity to a pistol

located on the floorboard behind the driver’s seat; Johnson was the sole occupant of the car.

Id. at 678, 972 S.W.2d at 938. Johnson argued that there was no evidence showing any

connection between the pistol and the drugs hidden in the car, but the supreme court

disagreed. The supreme court found that “[t]his evidence alone [was] sufficient to support

the conviction for simultaneous possession under § 5-74-106.” Id. at 678, 972 S.W.2d 938.

Here, Clements testified that the firearm he recovered was a Rossi .38 Special

revolver. Similar to Johnson, Britt was the sole occupant of the vehicle, and both the drugs

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and the firearm were found in the front-seat area of the vehicle within a foot or two of each

other. Given the close proximity, the State established a sufficient connection, or nexus,

between the drugs and firearm thus meeting its burden of substantial evidence.

Britt’s argument that the State failed to prove the firearm element because it was not

readily accessible in the sense that there was no testimony that bullets or projectiles were

found is of no merit because the statutory definition does not require this or even that the

gun be loaded. Britt cites only Rabb v. State, 72 Ark. App. 396, 403, 39 S.W.3d 11, 16

(2001), in this argument section of his brief. There, we reversed and dismissed a

simultaneous-possession conviction by holding that an unloaded weapon with no

ammunition available is not considered usable as a firearm. However, the case is

distinguishable because there, appellant relied on the statutory defense found in Ark. Code

Ann. § 5-74-106(d): “It is a defense to this section that the defendant was in his or her home

and the firearm or other implement or weapon was not readily accessible for use.” In the

instant case, this specific defense does not apply because the firearm was located in a

vehicle—not a home. Britt does not provide us any convincing caselaw that we should

adopt this definition or read it into Arkansas Code Annotated section 5-1-102.

Consequently, we conclude that the evidence is sufficient to support Britt’s conviction. In

turn, we hold that Moon’s performance was not deficient and prejudicial because even had

he moved for a directed verdict, the sufficiency-of-the-evidence argument raised on appeal

would not have been successful.

Next, Britt argues Moon was constitutionally ineffective for not objecting to the jury

instructions on Britt’s prior convictions and his habitual-offender status. Britt also takes issue

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with the fact that the trial court did not formally announce, during the sentencing phase,

that Britt had previously been convicted of two felonies. This argument, too, lacks merit.

As the court explained below, evidence had been introduced during the guilt phase

that Britt had two or more felony convictions. Moon knew this and fought the issue from

the beginning with his argument that Britt was sentenced under Act 346. In light of the

course of the proceedings and the understanding of the parties, the trial court proceeded to

instruct the jury prior to its deliberating Britt’s sentence that he had two felony convictions.

The trial court found that it was a procedural oversight by the court that it did not make

the habitual-offender finding during the sentencing phase and that Moon’s failure to object

did not amount to constitutional ineffectiveness because the jury was already made aware of

Britt’s habitual-offender status. We are not left with a definite and firm conviction that a

mistake has been committed and affirm.

Britt next argues that counsel was ineffective for not objecting to the jury instruction

concerning the simultaneous-possession-of-drugs-and-firearm charge. The trial court

instructed the jury pursuant to AMI Crim. 2d 6420. The supreme court has held that “a

trial court should not give a nonmodel instruction unless the court concludes that the model

instruction does not accurately state the law.” Harmon v. State, 2020 Ark. 217, at 13, 600

S.W.3d 586, 594; Fincham v. State, 2013 Ark. 204, at 5, 427 S.W.3d 643, 647. Here, the

trial court found that the model instruction accurately stated the law. We conclude this

finding is not clearly erroneous.

Finally, Britt asserts that Moon was constitutionally ineffective by impermissibly

conceding Britt’s guilt in his closing argument. Britt also claims that he asserted he was not

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guilty throughout the trial. It was Britt’s burden to prove cause and prejudice to support his

claims of ineffective assistance below, but he did not testify nor did he present any other

witnesses in support of his allegations. See Nutt, 2020 Ark. App. 137, at 6, 594 S.W.3d at

911. The trial court found the concession consistent with Moon’s credible testimony

concerning his trial strategy. Given the circumstances, it was not clearly erroneous for the

court to make this finding.

Overall, Britt’s contentions fail to overcome the strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance.

Affirmed.

GRUBER, C.J., and VAUGHT, J., agree.

Hancock Law Firm, by: Charles D. Hancock, for appellant.

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

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