David King v. State of Arkansas

Cite as 2020 Ark. App. 532

Reason: I attest to the accuracy
ARKANSAS COURT OF APPEALS
and integrity of this document
Date: 2021-07-20 10:44:02 DIVISION IV
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9.7.5 No. CR-20-125

Opinion Delivered: November 18, 2020

DAVID KING
APPELLANT APPEAL FROM THE VAN BUREN
COUNTY CIRCUIT COURT
V. [NO. 71CR-16-48]

STATE OF ARKANSAS HONORABLE H.G. FOSTER, JUDGE
APPELLEE
AFFIRMED

MIKE MURPHY, Judge

Appellant David King was convicted by a Van Buren County jury of possession of

methamphetamine with purpose to deliver, simultaneous possession of drugs and firearms,

and possession of drug paraphernalia. The jury sentenced him to an aggregate term of

twenty-eight years’ imprisonment. On appeal, King argues that the trial court erred by (1)

refusing to order the State provide a video recording of the search of King’s home; (2) ruling

that the filmmakers were not state actors; (3) denying King’s request for a continuance to

obtain the video; (4) denying King’s motion to suppress evidence stemming from the

execution of the search warrant; and (5) declining to give the affirmative-defense instruction

to the jury. We affirm.

In March 2016, the Twentieth Judicial Drug Task Force along with several other

law enforcement officers executed a warrant for the search of King’s home. An HBO film

crew was also present at the search collecting footage for the documentary Meth Storm. Upon
making entry into the house, King advised officers of a camouflage box located in his

bedroom that he knew contained methamphetamine. As an officer bent down to retrieve

the box, he located a handgun lying next to the box. Officers found over three grams of

methamphetamine in the camouflage box along with a pay/owe book, a digital scale, half a

straw with residue, a spoon, and multiple Ziplock bags. Officers located two more firearms

in the master bedroom and other drug paraphernalia throughout the house. During the

search, King made clear that his wife, Betty King, who was also present, knew nothing of

the items being found.

King was charged as a habitual offender with the crimes of possession of

methamphetamine or cocaine with purpose to deliver, simultaneous possession of drugs and

firearms, and possession of drug paraphernalia. King claimed that the officers violated the

terms and conditions of the search warrant by forcibly entering his home before the allotted

time frame. To prove this claim, King filed a motion to compel discovery of the video

recording filmed by the documentarians, but the court denied the motion finding that

because the State was not in possession of the recording, it was not required to turn it over.

After obtaining new counsel, King filed a motion to suppress the evidence procured during

the search arguing that the search warrant in the case specified that the search was to be

conducted between the hours of 6:00 a.m. and 8:00 p.m. and that despite the return of the

warrant indicating that the search began at 6:03 a.m., King maintained that officers began

the search several minutes before 6:00 a.m.

At the hearing on the motion, Agent Macy Brown, the lead agent who executed the

search, testified that it began at 6:03 a.m. based on the time he saw on the dashcam clock in

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his vehicle when he pulled into the driveway. King and his wife testified that officers were

inside the home when Agent Brown told everyone to stop what they were doing because

they were early. Neither King nor his wife could provide a time when officers arrived or

when Agent Brown made everyone stop. King maintained that the video recording would

reveal the true time. At the conclusion of the hearing, the court denied the motion, again

rejecting that the State had any responsibility for HBO’s compliance with King’s request for

the recording, and it found that Agent Brown’s testimony that the warrant was executed in

a timely fashion was more credible than that put on by the defense. Upon the court’s ruling,

King moved for a continuance of the jury trial so that he may have another shot at trying

to retrieve the footage from HBO. The court stated that the case had been going on since

2016 and asked him what had previously been done to retrieve the footage, but King was

unsure. The court then denied the request.

A jury trial was conducted September 17, 2019. Charles Shaw, an investigator who

was present during the execution of the search warrant, testified that he was the one who

located the camouflage box and the gun in the bedroom, but he did not recall King’s wife

being present during the search. Agent Brown then testified about what was found during

the search and that King’s wife was, in fact, present. He also testified that after the search,

he detained King, King waived his Miranda rights, and Agent Brown conducted an

interview. He testified that during the interview, King admitted that he had just bought a

thousand dollars’ worth of methamphetamine the day before and that he used between half

and a quarter each day. Agent Brown testified that he did not find a thousand dollars’ worth

of methamphetamine in the house and that in his experience, King’s admitted use was a

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typical answer of a regular user. King moved for directed verdict at the close of the State’s

case in chief, arguing that the State failed to meet the elements of the simultaneous-

possession-of-drugs-and-firearms charge. The trial court denied the motion. The defense

rested without calling any witness and renewed its motion, which the court again denied.

Prior to jury deliberation, King sought to have a jury instruction for the affirmative defense

for the charge of simultaneous possession of drugs and firearms, arguing that the firearm was

not readily available for use. Finding that there was no factual basis from which the jury

could find that the firearm was not available for use because the gun was in close proximity

with the drugs and paraphernalia in the bedroom, the court denied King’s request. King

was convicted and has now timely appealed.

Questions of law, such as the interpretation of discovery rules found in the Arkansas

Rules of Criminal Procedure, are reviewed de novo. Muhammad v. State, 67 Ark. App. 262,

265, 998 S.W.2d 763, 763 (1999). However, when we review a court’s rulings regarding

alleged violations of the rules of discovery, the standard of review is abuse of discretion.

Hicks v. State, 340 Ark. 605, 612, 12 S.W.3d 219, 223 (2000).

On appeal, King first argues that the trial court erred in ruling that the State was not

responsible for providing him with the HBO video footage. King maintains that the video

could lead to exculpatory evidence to support his motion to suppress that the officers

executed the warrant outside the proper timeframe. King asserts that it was an abuse of

discretion for the trial court to find that because the State did not possess the video that it

did not have to provide the video. King asserts that, at a minimum, the trial court should

have ordered the State to make diligent efforts to obtain the footage or information relating

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to the individuals who recorded the video. To support his argument, King states that the

court made its finding in violation of Arkansas Rules of Criminal Procedure 17.1, 17.3, and

17.4; Barrow v. State, 2010 Ark. App. 589, 377 S.W.3d 481; and Brady v. Maryland, 373 U.S.

83 (1963).

In a recently decided case involving similar facts, the Arkansas Supreme Court held

that the HBO filmmakers invited onto the scene of a search to film for their documentary

Meth Storm were not law enforcement or acting as state agents. Harmon v. State, 2020 Ark.

217, 600 S.W.3d 586. The appellant in Harmon made similar arguments as King. There, the

appellant acknowledged that the State did not have an affirmative duty under Brady, 373

U.S. 83, to produce evidence it does not have, but he argued that under Rules 17.1 and

17.4 of the Arkansas Rules of Criminal Procedure, the State was obligated to obtain the

footage and the identities of the filmmakers. Id. at 4, 600 S.W.3d at 590. Rule 17.1(c)

provides in relevant part that “[t]he prosecuting attorney shall, upon timely request, disclose

and permit inspection, testing, copying, and photocopying of any relevant material

regarding (i) any specific searches and seizures.” Rule 17.4(a) provides that “[t]he court in

its discretion may require disclosure to defense counsel of other relevant material and

information upon a showing of materiality to the preparation of the defense.”

In disagreeing with the appellant that Rule 17 does not require it to produce the

video, our supreme court analogized the case to Barrow, 2010 Ark. App. 589, 377 S.W.3d

481. Specifically, the court explained:

In Barrow, there was evidence of the victims’ medical treatment at area hospitals that
the State did not disclose to the defense. The court of appeals held that “[b]ecause
the medical facilities are not law-enforcement agencies, the prosecutor had no
obligation to obtain the records under Rule 17.3. In the absence of a showing . . .

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that the State had access to the records, no discovery violation occurred.” Id. at 15,
377 S.W.3d at 491. . . . [T]he evidence held by the filmmakers is akin to evidence
held by the hospitals in Barrow.

Harmon, 2020 Ark. 217, at 7, 600 S.W.3d at 591. Harmon recognized that information held

by the police is imputed to the prosecution, but because the State did not possess the video,

there was no discovery violation. Id., 600 S.W.3d at 591. King urges us to reconsider this

holding, but we are without authority to overrule decisions made by the supreme court.

Roark v. State, 46 Ark. App. 49, 55, 876 S.W.2d 596, 599 (1994).

Alternatively, King distinguishes his case from Harmon by noting that he specifically

asked for the information pursuant to Rule 17.3, which was not argued by the appellant in

Harmon. Arkansas Rule of Criminal Procedure 17.3 provides in part that “[t]he prosecuting

attorney shall use diligent, good faith efforts to obtain material in the possession of other

governmental personnel which would be discoverable if in the possession or control of the

prosecuting attorney.” King argues that the trial court should have ordered the State to use

diligent efforts to gather information possessed by the police that would lead to the discovery

of the video.

This is not a significant distinguishing factor. In reaching its conclusion, the Harmon

court touched on Rule 17.3. Harmon relied on Barrow, which held that the medical facilities

were not law enforcement agencies contemplated by the rule. This, coupled with the fact

that the State did not have access to the medical records, led the Barrow court to conclude

no discovery violation had occurred. Consequently, Harmon held that the evidence held by

the filmmakers is akin to evidence held by the hospitals and that the filmmakers were not

law enforcement officers, nor were they acting as state agents. Essentially, Harmon suggests

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that the HBO filmmakers were not considered “other governmental personnel” per Rule

17.3. For these reasons, we conclude that the trial court did not abuse its discretion in

declining to order the State to obtain the video or to gather information that would lead to

the video.

Next, King argues that the trial court erred in finding that the filmmakers were not

agents of the State, and therefore the State did not have to provide the video. King maintains

that because the State admitted that the film crew had permission to be present during the

search, an agreement, either oral or written, must have existed giving rise to an agency

relationship.

A party asserting the existence of an agency relationship has the burden of proving

that an agency relationship exists. Hardin v. Bishop, 2013 Ark. 395, at 7, 430 S.W.3d 49, 54.

The two essential elements of an agency relationship are (1) that an agent have the authority

to act for the principal and (2) that the agent act on the principal’s behalf and be subject to

the principal’s control. Id. Agency can be proved by circumstantial evidence if the facts and

circumstances introduced into evidence are sufficient to induce in the mind of the finder of

fact the belief that the relation did exist and that the agent was acting for the principal in the

transaction involved. Id.

In Harmon, the appellant similarly argued that because the filmmakers were state

actors or agents, the State had an obligation to obtain the video and identify who was present

at the search. Harmon, 2020 Ark. 217, at 5, 600 S.W.3d at 590. In finding that the appellant

failed to provide convincing authority to support this contention, the supreme court held

that while the filmmakers were more than mere bystanders because they were present at the

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invitation of law enforcement, that did not make them state actors or agents, especially

considering that they did not participate in the search. Id.

To distinguish this case from Harmon, King asserts that while there is no case law

directly on point, the fact that the filmmakers did not participate in the search is incorrect.

King claims they did participate in the search by filming it, which is a duty normally held

by law enforcement. King argues that because law enforcement permitted HBO to record

the search, law enforcement gave the filmmakers the authority to act on their behalf. We

disagree with this characterization.

King does not establish that HBO filmed the raid in place of law enforcement or that

law enforcement would have filmed the raid if HBO had not been present. The filmmakers

were filming for their own benefit, not to aid law enforcement in the search. Because the

facts do not establish that HBO was acting for law enforcement, we agree with the trial

court that an agency relationship did not exist.

For his third argument, King contends that the trial court erred in denying his request

for a continuance to allow more time to obtain the video. The original criminal information

against King was filed on April 4, 2016. King’s counsel filed a motion to compel discovery

for the State to provide the video recording in December 2017. When the court denied

counsel’s request at a motion hearing on April 28, 2018, counsel requested more time to

obtain the video herself. After several unsuccessful attempts and a handful of continuances

later, counsel discovered she had a conflict and asked to be removed from the case in

November 2018. King’s new counsel asked for a continuance after his motion for

suppression was denied at the July 2019 motion hearing. The continuance was denied

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because the court stated the case had been ongoing since 2016. King also filed a motion for

continuance on September 12, 2019, noting that the Arkansas Public Defender Commission

recently obtained the funds to assign an investigator to the case but that more time was

needed to establish contact with the production team. That motion was also denied, and

the jury trial was held September 17, 2019.

We review the denial of a continuance for abuse of discretion. Price v. State, 365 Ark.

25, 33, 223 S.W.3d 817, 824 (2006). A trial court should consider the following factors in

deciding whether to grant a continuance: (1) the diligence of the movant; (2) the probable

effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness

in the event of a postponement; and (4) the filing of an affidavit stating not only what facts

the witness would prove but also that the appellant believes them to be true. Miller v. State,

328 Ark. 121, 124, 942 S.W.2d 825, 827 (1997).

The existence of the film had been known for at least a year and a half before trial,

and multiple attempts were made to obtain the video. Again, this issue is similar to one

presented in Harmon. There, the appellant made separate attempts to obtain video footage,

and he, too, was unsuccessful. This weighed against the likelihood of procuring the

evidence. In Harmon, there was even evidence that the trial court issued an order to

“whomever shall be in possession and/or ownership” of the video to provide it. 2020 Ark.

217, at 3, 600 S.W.3d at 589. Here, there was no evidence that King attempted to subpoena

HBO. Additionally, we would be speculating as to the probable effect of the evidence at

trial, considering that the trial court found Agent Brown’s testimony about the time more

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credible than the Kings’ testimony. We conclude that the trial court did not abuse its

discretion in denying King’s request for a continuance.

For his fourth point, King argues the trial court erred in denying King’s motion to

suppress the evidence stemming from the execution of the search warrant. King asserts that

the State failed to meet its burden that the warrant was executed after 6:00 a.m. To support

this argument, he claims that there was no testimony or evidence presented regarding the

accuracy of the dashcam clock that Brown testified he relied on to determine the time of

the search. King also claims that there was no corroborating evidence supporting Agent

Brown’s testimony regarding the time.

In reviewing the denial of a motion to suppress evidence, the appellate court

conducts a de novo review based on the totality of the circumstances set forth in the affidavit

and will reverse only if the trial court’s ruling is clearly against the preponderance of the

evidence. Hayes v. State, 2013 Ark. App. 725, at 5. We defer to the trial court’s superior

position in determining the credibility of the witnesses and resolving any conflicts in the

testimony. Livingston v. State, 2013 Ark. 264, at 6, 428 S.W.3d 474, 478. Arkansas Rule of

Criminal Procedure 13.2 provides that search warrants shall be executed between the hours

of six a.m. and eight p.m. and that a search not within this time frame must be supported

by a provision in the warrant by the issuing judicial officer.

In deciding to deny the motion to suppress, the trial court had before it the

competing testimony between Agent Brown and the Kings regarding the time of execution

of the warrant. The trial court is not required to believe the testimony of any witness,

certainly not the self-serving testimony of the accused. Collins v. State, 2014 Ark. App. 574,

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at 4, 446 S.W.3d 199, 203. King also fails to direct us to any requirement that the State

needed to establish that the dashcam clock was calibrated properly or that Agent Brown’s

testimony needed to be corroborated. Agent Brown’s testimony alone was sufficient to

establish what time the search warrant was executed. We must defer to the trial court’s

credibility determination, and we hold that the court did not clearly err in denying King’s

motion to suppress.

Last, King argues that the trial court erred in refusing to instruct the jury on the

affirmative defense concerning the charge of simultaneous possession of drugs and firearms.

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. Subsection (d) of the statute provides that “[i]t

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.” The trial court denied King’s

request finding that there was no factual basis from which the jury could find the firearm

was not available for use.

This issue is not preserved for review. When the court denied King’s request to

instruct the jury on this affirmative defense, he did not proffer the desired instruction into

the record, and as a result, we do not have it before us for review. This court has repeatedly

stated that it is the appellant’s duty to present to this court a record sufficient to show that

the trial court erred below. Robertson v. State, 2009 Ark. 430, at 3, 347 S.W.3d 460, 462.

To preserve for appeal an objection to an instruction, the appellant must make a proffer of

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the proposed instruction to the trial court. Id. That proffered instruction must then be

included in the record and abstracted to enable the appellate court to consider it. Id. An

instruction that is not contained in the record is not preserved and will not be addressed on

appeal. Id. King failed to proffer the jury instruction; consequently, it has not been made a

part of the record or abstract.

Affirmed.

ABRAMSON and WHITEAKER, JJ., agree.

Erin W. Lewis, for appellant.

Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.

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