Keraig House v. State of Arkansas

Cite as 2020 Ark. App. 452
ARKANSAS COURT OF APPEALS
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Date: 2021-07-12 14:08:48
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DIVISION I
9.7.5 No.CR-19-600

Opinion Delivered: September 30, 2020

KERAIG HOUSE APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66FCR-15-726]

HONORABLE J. MICHAEL
STATE OF ARKANSAS FITZHUGH, JUDGE
APPELLEE
AFFIRMED; MOTION GRANTED

KENNETH S. HIXSON, Judge

This no-merit appeal comes before this court for a second time. Appellant Keraig House

was convicted by a jury of three counts of being a felon in possession of a firearm, and he was

sentenced as a habitual offender to two consecutive forty-year prison terms to be served

concurrently with another forty-year prison term.1 In the first appeal, appellant’s counsel filed

a no-merit brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),

and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. However,

in the first appeal, we denied appellant’s counsel’s motion to withdraw and ordered rebriefing

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In a separate jury trial arising from the same events, Mr. House was convicted of
simultaneous possession of drugs and firearms, possession of methamphetamine with intent to
deliver, maintaining a drug premises, and possession of drug paraphernalia. For these
convictions, Mr. House was sentenced to sixty years in prison. The trial court ordered the
sentences in this case to be served concurrently with this sixty-year sentence. We affirmed Mr.
House’s convictions in the other case. See House v. State, 2020 Ark. App. 240, 600 S.W.3d
106.
because counsel had failed to discuss all the adverse rulings as required by our no-merit rules.

See House v. State, 2020 Ark. App. 241.

Pursuant to our directive in the first appeal, Mr. House’s counsel has now rebriefed the

case and filed a second no-merit brief and motion to withdraw pursuant to Anders and Rule 4-

3(k). In this second no-merit brief, appellant’s counsel has discussed all matters in the record

that might arguably support an appeal, including all the adverse rulings made below, and

provided a statement of why each point raised cannot arguably support an appeal. Mr. House

was provided a copy of his counsel’s brief and notified of his right to file pro se points for

reversal, but he has filed no points. We affirm.

Pursuant to Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016), it is unlawful for a person

to possess of a firearm if the person has been convicted of a felony. In this case, the parties

stipulated that Mr. House was previously convicted of a felony, so the only issue for the jury

was whether he possessed the three firearms.

The testimony at trial showed that officers with the Fort Smith Police Department

arranged for a confidential informant to buy methamphetamine from Mr. House at his

residence. After the drug buy was complete, the officers obtained a search warrant for

Mr. House’s residence and curtilage.

Mr. House and his wife, Mrs. House, were on the property during the search. While

the officers were inside the residence, Mr. House provided the combination to a safe that was

found to contain a revolver. Mr. House told the police about the gun when he gave them the

combination. Mrs. House told the police that she did not know the combination to the safe.

The police also searched the trunk of a car in Mr. House’s back yard. In the trunk, the police

found a revolver and a pistol. Over Mr. House’s objection as to relevancy and unfair prejudice,

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the trial court permitted one of the officers to testify that the guns were “kind of concealed,”

with one of them wrapped in a ski mask. Mr. House gave a custodial statement to the police

wherein he admitted that he is the person who had wrapped the guns and put them in the

trunk. According to the officer who conducted the custodial interview, Mr. House admitted

“taking possession of and being responsible for” the guns in the trunk.

In this no-merit appeal, Mr. House’s counsel correctly asserts there could be no

meritorious challenge to the trial court’s denial of his motion for a directed verdict. A motion

for a directed verdict is treated as a challenge to the sufficiency of the evidence, and the denial

of the motion is affirmed if substantial evidence, either direct or circumstantial, supports the

verdict. Friday v. State, 2018 Ark. 339, 561 S.W.3d 318. Substantial evidence is evidence

forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.

Id. In reviewing the sufficiency of the evidence, we view the evidence in the light most

favorable to the State, considering only the evidence that supports the verdict. Rabb v. State,

72 Ark. App. 396, 39 S.W.3d 11 (2001).

Mr. House was charged with three counts of being a felon in possession of a firearm,

and because Mr. House stipulated that he is a convicted felon, the only question for the jury

was whether he possessed the firearms. In Mr. House’s directed-verdict motion, he argued that

there was insufficient evidence of possession. However, the trial court correctly denied the

motion.

Actual, physical possession is not required to prove possession; constructive possession

will suffice and occurs when the accused maintains control or a right to control the contraband.

Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). Here, there was undoubtedly

substantial evidence that Mr. House constructively possessed all three firearms seized by the

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police. Mr. House demonstrated control over the gun found in the safe when he gave the

officers the combination and advised them of the presence of the gun before they opened the

safe. And Mr. House admitted to the police that he had been in possession of the two guns

found in the trunk and that he is the person who had put them there. Therefore, any sufficiency

challenge on appeal would be wholly without merit.

Mr. House’s counsel next asserts that there could be no meritorious argument based on

the trial court’s denial of his objection to the officer’s testimony that the guns in the trunk were

partially concealed with a ski mask. Mr. House objected to this evidence arguing that it was

not relevant under Ark. R. Evid. 401 and that any probative value was substantially outweighed

by the danger of unfair prejudice under Ark. R. Evid. 403, and the objection was overruled.

A trial court’s ruling on the admission of evidence will not be reversed unless appellant can

show both an abuse of discretion and prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547

(2000).

Mr. House’s counsel correctly asserts that the admission of this evidence could not form

the basis of a merit appeal because, even if any error occurred, Mr. House cannot show

prejudice. When evidence of guilt is overwhelming and the error slight, the error is considered

harmless on appeal. Cutsinger v. State, 2017 Ark. App. 647, 536 S.W.3d 134. The record

conclusively shows that Mr. House demonstrated control over all three firearms, and the

evidence of the ski mask resulted in no prejudice.

In addition to the two adverse rulings that occurred during the guilt phase of the trial,

there were three adverse rulings during the sentencing phase. Mr. House’s counsel has

adequately addressed these three adverse rulings, and they are as follows.

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At the sentencing hearing, Mr. House’s mother testified that she had been praying that

the jury would be lenient with her son. The State objected, and the trial court sustained the

objection. A trial court’s decision whether to admit evidence during the sentencing phase is

reviewed for an abuse of discretion. Schreck v. State, 2017 Ark. 39, 510 S.W.3d 750. Here, the

trial court did not abuse its discretion in disallowing this testimony because appellant’s mother’s

prayers were not relevant to sentencing.

The next adverse ruling came during the sentencing phase when Mr. House’s counsel,

during closing argument, mentioned that Mr. House possessed only about a half a gram of

methamphetamine. The State objected, correctly asserting that this was not in evidence, and

the trial court sustained the objection. The trial court is given broad discretion to control

counsel in closing arguments, and we will not reverse such a ruling absent an abuse of discretion.

Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). Closing arguments must be confined to the

evidence introduced during trial, and it is the trial court’s duty to prohibit counsel from making

improper arguments. Id. Because Mr. House’s counsel’s statement referred to a matter not in

evidence, the trial court did not abuse its discretion in prohibiting the comment.

The last adverse ruling occurred when, after the jury sentenced Mr. House to forty years’

imprisonment on each of the three counts, Mr. House requested that none of his sentences run

consecutively.2 The trial court partially denied that request, ordering two sentences to run

consecutively, but concurrent with the remaining sentence as well as the sixty-year sentence in

the separate case.

The question of whether sentences should run consecutively or concurrently lies within

the sole province of the trial court. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). The

2
In the verdict forms, the jury recommended that all three sentences run consecutively.

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appellant assumes a heavy burden of demonstrating that the trial court failed to give due

consideration to the exercise of its discretion in the matter of consecutive sentences. Id. We

will remand for resentencing when it is apparent that the trial court did not exercise its

discretion. Id.

It was within the trial court’s sole discretion to decide whether Mr. House’s sentences

should run consecutively or concurrently. It is evident that the trial court exercised its discretion

in that regard because it ordered one of the sentences to run concurrently with the others,

despite the jury’s recommendation that they all run consecutively. Because the trial court

exercised its discretion, there could be no meritorious argument with respect to its sentencing

decision. See Teague, supra.

Having reviewed the record and the no-merit brief presented, we conclude that there

has been compliance with Rule 4-3(k) and that the appeal is without merit. Consequently,

appellant’s counsel’s motion to be relieved is granted, and the judgment is affirmed.

Affirmed; motion granted.

HARRISON and KLAPPENBACH, JJ., agree.

Kezhaya Law PLC, by: Matthew A. Kezhaya, for appellant.

One brief only.

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