Jason Harding v. State of Arkansas

Cite as 2024 Ark. App. 560
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-24-77

JASON HARDING Opinion Delivered November 13, 2024
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, THIRD
V. DIVISION
[NO. 60CR-21-3082]
STATE OF ARKANSAS
APPELLEE HONORABLE CATHLEEN V.
COMPTON, JUDGE

AFFIRMED

BART F. VIRDEN, Judge

The Pulaski County Circuit Court convicted appellant Jason Harding of being a felon

in possession of a firearm and sentenced him as a habitual offender to five years’

imprisonment. Harding argues that the trial court erred in denying his motion to dismiss

and his motion to suppress. We affirm.

I. Background

Shortly before Harding’s bench trial began, defense counsel orally moved to suppress

the firearm at issue. Although a parole search waiver was involved and an underlying statute

provides that no reasonable grounds are needed to search for those on probation and parole,

defense counsel claimed that our supreme court has since ruled that reasonable suspicion
and reasonable grounds to search are, in fact, required. The trial court held its ruling in

abeyance until after the trial testimony.

The State called Agent Violet White, who testified that she is currently an assistant

area manager with the Arkansas Department of Community Correction (DCC). Agent

White, who referred to Harding as a parolee,1 testified that she had Harding’s signed

warrantless-search waiver, dated July 25, 2017, on file, which reads as follows:

As a condition of my supervised parole or probation, I agree to allow any
[DCC] officer, or any certified law enforcement officer, to conduct a warrantless
search of my person, place of residence, or motor vehicle at any time, day or night,
whenever requested by the [DCC] officer, or certified law enforcement officer.

I understand that a warrantless search based on this waiver must be conducted
in a reasonable manner but does not need to be based on a clearly expressed suspicion
that I am committing or I have committed a criminal offense.

Agent White testified that on June 10, 2021, the DCC received a report that early

that morning, Harding had driven by and fired a round through a residence. She said that

she and other officers went to investigate the report and learned that Harding was living with

his parents. Agent White further testified that Harding’s mother let her and the other

officers into the parents’ home. She said that Harding, who had warrants, was cooperative

and that officers found a Toyota key fob in his pocket. She testified that Harding’s mother

said that she owned the Toyota Corolla parked in the driveway but that Harding was “the

primary and only” driver of the car. Agent White testified that officers searched the car and

found a loaded 30-30 lever-action rifle on the backseat floorboard. Agent White was asked

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Harding was a probationer, not a parolee.

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how a search could be conducted in a “reasonable manner,” and she said, “[W]e try to do as

little damage as possible, try to take care of people’s property and be as respectful as possible.”

After the State had rested, defense counsel moved for a directed verdict, which was

denied, as was the renewed motion. After closing arguments, the trial court also denied

defense counsel’s motion to suppress. Harding was found guilty and later sentenced.

II. Discussion

A. Motion to Dismiss

A motion to dismiss at a bench trial is identical to a motion for directed verdict at a

jury trial in that it is a challenge to the sufficiency of the evidence. Ark. R. Crim. P. 33.1.

This court will affirm a trial court’s denial of the motion if there is substantial evidence,

either direct or circumstantial, to support the verdict. Warren v. State, 2019 Ark. App. 33,

567 S.W.3d 105. Substantial evidence is defined as evidence forceful enough to compel a

conclusion one way or the other beyond suspicion and conjecture. Id. The evidence is viewed

in the light most favorable to the verdict, and only evidence supporting the verdict is

considered. Id.

On appeal, Harding argues that there was insufficient evidence that he actually or

constructively possessed the firearm. He further contends that his mother did not say he was

the primary and only occupant of the car; that she was not asked about the ownership of the

firearm; that there was no testimony about how long he had been the primary and only driver

of the car; that there was no testimony about when he had last driven or used the car; and

that there was no eyewitness or photographic evidence of him with a firearm.

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In moving to dismiss below, defense counsel argued the following:

The State has in no way proven their case. The fact is the officer who did not
search Mr. Harding purported to things that were largely hearsay, and the bottom line
is that there’s critical and vital testing that could have been done on this firearm that
was not done. We don’t even know if the gun fires. That’s really important when
trying to show that someone was in possession of a firearm. I believe the law requires
it be one that fires, and we don’t know that this gun does that.

Arkansas Rule of Criminal Procedure 33.1(c) provides that a dismissal motion based

on insufficient evidence must specify the manner in which the evidence is deficient; a motion

merely stating that the evidence is insufficient does not preserve issues concerning a specific

deficiency, such as insufficient proof on the elements of the offense. Cano v. State, 2022 Ark.

App. 340. Moreover, Rule 33.1 is strictly construed. Id. A party is bound by the scope and

nature of his dismissal motion made at trial and cannot change the grounds on appeal. Mosier

v. State, 2023 Ark. App. 469.

Harding’s motion to dismiss was not specific enough to preserve the issues he now

raises on appeal. He did not argue actual or constructive possession below and did not

mention joint occupancy, either.2 See, e.g., Mead v. State, 2023 Ark. App. 384 (holding that

counsel’s motion for directed verdict was not specific enough to preserve her arguments for

appeal where counsel did not mention constructive possession or joint occupancy in the

motion); Porchay v. State, 2021 Ark. App. 64, 616 S.W.3d 699 (holding that the appellant

failed to preserve his argument that the State presented insufficient evidence of the necessary

2
To the extent Harding mentioned actual possession below, it was said with respect
to whether the firearm was operable, which is not an argument Harding makes on appeal.

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“linking factors” needed to establish constructive possession of contraband in a jointly

occupied vehicle where, although he mentioned constructive possession in his directed-

verdict motion, he challenged only whether the State had proved that he “knew” or “had

reason to know” about the presence of the drugs); McKinney v. State, 2018 Ark. App. 10, 538

S.W.3d 216 (holding that the appellant’s motions for directed verdict were too general to

preserve his constructive-possession argument raised on appeal because below he merely

stated that he did not possess the firearm).

B. Motion to Suppress

In reviewing a trial court’s denial of a motion to suppress, we conduct a de novo

review based on the totality of the circumstances, reviewing findings of historical fact for

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

cause, giving due weight to inferences drawn by the trial court and proper deference to the

trial court’s findings. Johnson v. State, 2014 Ark. App. 567, 444 S.W.3d 880. Arkansas

appellate courts defer to the superior position of the trial court to evaluate the credibility of

witnesses at a suppression hearing. Id. We will reverse the denial of a motion to suppress

only if the ruling is clearly against the preponderance of the evidence. Id.

In defense counsel’s oral motion to suppress below, she said,

This case involves a parole search waiver. The Arkansas statute underlying the
case is [Ark. Code Ann. § 16-93-106]. This statute says that “probation and parole
need no reasonable grounds to search.” However, after this statute was enacted, the
Arkansas Supreme Court held in [Lane v. State, 2017 Ark. 34, 513 S.W.3d 230], that,
in fact, probation and parole does need reasonable suspicion and reasonable grounds
to search. It’s our contention that in this case, there were no reasonable grounds. My
client, Mr. Harding, was inside a house asleep. There was a car parked in the driveway.

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Probation and parole searched that vehicle and recovered a firearm. That vehicle was,
in fact, registered to Mr. Harding’s mother. So in relying on Lane, we would ask the
fruit of the unreasonable search to be suppressed[.]

Arkansas Code Annotated section 16-93-106(a)(1) (Supp. 2023) provides in relevant

part that a person who is placed on supervised probation or is released on parole is required

to agree to a waiver that allows any certified law enforcement officer or Division of

Community Correction officer to conduct a warrantless search of his or her person, place of

residence, or motor vehicle at any time, day or night, whenever requested by the certified law

enforcement officer or division officer. Section 16-93-106(a)(2) provides that a warrantless

search that is based on a waiver required by this section shall be conducted in a reasonable

manner but does not need to be based on an articulable suspicion that the person is

committing or has committed a criminal offense.

In Lane, the Arkansas Supreme Court held that a warrantless entry into a parolee’s

hotel room was lawful because there were reasonable grounds to search and investigate

whether the parolee had violated the terms and conditions of his parole. In deciding Lane,

the supreme court relied on language in Cherry v. State, 302 Ark. 462, 791 S.W.2d 354

(1990), which was handed down before section 16-93-106 was enacted. On appeal, Harding

no longer relies on Lane and asserts that Clingmon v. State, 2021 Ark. App. 107, 620 S.W.3d

184 is “the most instructive case on warrantless searches.” In Clingmon, we were asked to

decide whether section 16-93-106 was constitutional, and the appellant in that case had

relied on Cherry. We said in Clingmon that Cherry was an outdated analysis because that case

was decided long before the enactment of section 16-93-106, and we called into question the

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decision in Lane given that it had relied on Cherry. We held in Clingmon that section 16-93-

106 is constitutional and that the statutory language is clear that it does not require

reasonable suspicion to search; rather, it requires only that a search be conducted in a

reasonable manner.

Citing Samson v. California, 547 U.S. 843 (2006), Harding acknowledges that there is

no question that he was on probation and had a warrantless-search waiver on file wherein

he had accepted as a specific condition of his probation that he would submit to warrantless

searches. Harding asserts that the officers here found him in his residence, that both his

person and his residence were searched, and that no weapons were found on his person or

in his proximity. Harding argues that he did not own the vehicle where the firearm was found

and that there was no testimony that his mother had consented to a search of her vehicle.

According to Harding, the search extending to a vehicle owned by someone other than him,

and not registered to him, was “beyond reasonable” after law enforcement had made contact

with him, he was cooperative, and there were no firearms found on his person or in his

residence.

The trial court simply denied Harding’s motion to suppress at the conclusion of the

bench trial without any further discussion. Whereas Harding argued below that reasonable

grounds were required per Lane, supra, he now on appeal makes a “beyond reasonable”

argument. In other words, Harding did not make this argument below and obtain a ruling

on it. In Clingmon, after we rejected the appellant’s challenge to the constitutionality of the

statute, his only remaining argument for suppression was the assertion that the search had

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not been conducted in a reasonable manner. We refused to address that argument because

it had not been developed below or ruled on by the trial court. Likewise, Harding’s “beyond

reasonable” argument was neither developed below nor ruled on by the trial court; thus, it

is not preserved for review. Gooch v. State, 2015 Ark. 227, 463 S.W.3d 296.

Affirmed.

ABRAMSON and HIXSON, JJ., agree.

Dusti Standridge, for appellant.

Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

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