The opinion
Cite as 2020 Ark. App. 557
Reason: I attest to the accuracy
and integrity of this document
Date: 2021-08-23 13:52:28
ARKANSAS COURT OF APPEALS
Foxit PhantomPDF Version: DIVISION III
9.7.5
No. CR-20-239
Opinion Delivered December 9, 2020
CLIFTON LAMBERT
APPELLANT
APPEAL FROM THE MONTGOMERY
V. COUNTY CIRCUIT COURT
[NO. 49CR-19-53]
STATE OF ARKANSAS
APPELLEE
HONORABLE JERRY RYAN,
JUDGE
AFFIRMED
BRANDON J. HARRISON, Judge
In October 2018, officers Frank Gibson and Terry Ford knocked on Clifton
Lambert’s front door pursuant to an arrest warrant and “heard a little noise just to the right
of the door” while waiting for Lambert to answer, which he did after approximately fifteen
to twenty seconds. Once inside the house, the officers saw in plain view a white substance
in plastic baggies that was later identified by a laboratory as methamphetamine. The
contraband was spotted on the floor next to a television stand. In addition, a small Altoids
tin, with magnets on the back of it, had apparently fallen to the floor, opened, and was
therefore in view of law enforcement. The tin contained more baggies of suspected
methamphetamine. Finally, numerous baggies rolled together with duct tape were in plain
view on a desk by the front window. Lambert was arrested and charged with possession of
methamphetamine with purpose to deliver and possession of drug paraphernalia.
A jury trial was convened in due course, and during it, the State called Officer
Gibson, who testified during the State’s case-in-chief that Lambert had claimed at the scene
that the drugs were not his and that he “just kind of rambled about some other things.”
When the prosecutor asked, “Was anyone else in the residence at the time of your search?”
Officer Gibson replied, “Just Mr. Lambert, Officer Ford, and myself.”
Lambert was convicted by the jury of possessing methamphetamine.1 On the jury’s
recommendation, the court sentenced Lambert to thirty years (as a habitual offender) and
assessed a $10,000 fine. Lambert appeals the conviction.
I.
A.
Lambert challenges whether the State’s evidence against him was enough to support
the conviction. Lambert specifically argues that the State failed to link him to the
methamphetamine that law enforcement found in plain view inside the jointly occupied
premises but not on his person. Therefore, Lambert’s main point on appeal is that that he
did not constructively possess the contraband, which is the State’s theory of the case. But
an actual-possession case is not the same as a constructive-possession case. This means that
Lambert’s motion for directed verdict at trial should have apprised the circuit court of the
evidentiary deficiency that he now raises for the first time: that the State did not link
1
Lambert was charged with possessing methamphetamine with the purpose of
delivering it, but the jury convicted him on the lesser-included offense of possessing
methamphetamine. The circuit court allowed the paraphernalia charge to be severed from
the case, so possession with purpose to deliver was the only criminal offense tried to the jury
in the case before us.
2
Lambert to the contraband that was not found on his person, that the contraband was not
his (according to his statement at the scene), and that the contraband was found while he
lived in what he now says for the first time on appeal was a jointly occupied dwelling.2
Lambert did not preserve this sufficiency issue for appellate review because he did
not make a proper motion for directed verdict to the circuit court. Arkansas Rule of
Criminal Procedure 33.1 requires that a motion for directed verdict in a criminal case
must specify the respect in which the evidence is deficient. A motion merely
stating that the evidence is insufficient does not preserve for appeal issues
relating to a specific deficiency such as insufficient proof on the elements of
the offense.
Ark. R. Crim. P. 33.1(c) (2019).
Lambert’s motion for a directed verdict was as follows:
The defense moves for a directed verdict. The State has failed to
present sufficient evidence without speculation or conjecture to arrive at the
conclusion that Mr. Lambert either possessed methamphetamine, possessed
between 2 and 10 grams[.]
The caselaw has for years recognized that a constructive-possession case is different
from a case in which contraband is found on someone’s person, for example. The main
difference between the two is that an alleged actual possession of contraband requires that
the State establish direct physical control over the contraband. Constructive possession, on
the other hand, may be established when a person, although not in actual possession of the
2
The investigation report that Lambert cites in his brief as evidence that the house
was jointly occupied was not offered as evidence in this case or otherwise recognized by the
court as substantive evidence. Nor was the concept of “joint occupancy” and why it
mattered ever raised in the circuit court. These facts also support our holding.
3
contraband, has the right to control it and intends to do so—either directly or through one
or more persons. Holloway v. State, 293 Ark. 438, 444, 738 S.W.2d 796, 800 (1987).
For example, in Conley v. State, the defendant’s motion for a directed verdict was
that “the State never proved Conley had the marijuana in his possession when they found
it.” 2011 Ark. App. 597, at 6, 385 S.W.3d 875, 878. We held that the motion was too
general to preserve an argument against a constructive-possession theory of the case. One
of the missing components to Conley’s motion was that it omitted an argument or reference
to the “additional linking factor” argument that he later made on appeal. Id. Another
example is Cooley v. State, 2013 Ark. App. 580, which involved the constructive possession
of firearms and drugs that were found in the curtilage of a jointly occupied house. The
motion there was that the “State has failed to make a prima facie case that any of the drugs
or guns were ever in possession of my client at the time,” which was not specific enough
to preserve the argument that the State failed to sufficiently establish a constructive
possession. Id. at 6.
Other inadequate examples of motions for directed verdicts in constructive-
possession cases include the following:
• “I don’t believe that the State demonstrated or showed or met their burden in
regard to the gun and that [McKinney] in any way possessed a firearm. Therefore,
a jury could not conclude that he could be guilty of possession of a firearm.”
McKinney v. State, 2018 Ark. App. 10, at 4, 538 S.W.3d 216, 219.
• “Your Honor, the State has rested and at this point the defense would move for
a directed verdict.” Welch v. State, 330 Ark. 158, 163, 955 S.W.2d 181, 183
(1997).
• The “State had failed to make a ‘prima facie case’ for possession.” Jones v. State,
2019 Ark. App. 219, at 3.
4
• “Your honor, the State has rested and the Defense would move for a directed
verdict on all counts on the grounds of insufficient evidence.” Dixon v. State,
327 Ark. 105, 109, 937 S.W.2d 642, 644 (1997).
Contrast these lapses with Garner v. State, 2020 Ark. App. 101, 594 S.W.3d 145.
While Garner did not state the words “constructive possession” or “jointly occupied
premises” in the circuit court, he did argue specific facts in his motion for a directed verdict
in a manner that chinned Rule 33.1’s pole. Id. at 5, 594 S.W.3d at 150.
In this case, Lambert’s oral motion for a directed verdict does not satisfy Rule 33.1
as it has been applied by this court’s and the supreme court’s cases. His motion was more
like the ones in Conley, Cooley, and Dixon than in Garner. Because Lambert did not make
with enough precision in circuit court the argument that the State failed to prove that he
constructively possessed contraband, his argument on appeal was not properly preserved for
review.
B.
Next, Lambert argues that the circuit court abused its discretion by preventing
defense counsel from cross-examining officer Gibson about the officer’s statement at trial
that Lambert “just kind of rambled about some other things.” Lambert says the error was
not harmless “as proof regarding potential other occupants would have weighed heavily
against a finding of constructive possession given the contraband was found in [a] communal
area of the multiroom residence.”
On cross-examination, Lambert’s attorney asked officer Gibson, “Did Mr. Lambert
tell you about several recent occupants in his home?” The prosecutor objected to this
5
question about other occupants—arguing that it was hearsay admitted on behalf of the
defendant. The following colloquy occurred.
DEFENSE COUNSEL: Judge, his testimony specifically was that
Mr. Lambert rambled on about several
other things, so the State’s line of
questioning opened the door to this
specific question. And by the way, this is
the only question I anticipate asking that
would call for hearsay.
PROSECUTING ATTORNEY: If somebody wants to utter that statement,
it’s not this witness that can, because it’s
hearsay.
CIRCUIT COURT: What is the exception to the hearsay rule?
OFFICER GIBSON: That the State has opened the door in its
line of questioning.
CIRCUIT COURT: I’ll sustain the objection.
We hold that Lambert did not preserve this issue for our review because he failed to
proffer testimony that Lambert believed he could have elicited from the officer had the
circuit court allowed him to do so. Specifically, Lambert did not proffer what officer Gibson
would have said had the officer been asked to elucidate the “ramblings” reference or what
Gibson would have replied to the question about what Lambert knew about other
occupants. Nor is it at all clear enough from the context what officer Gibson meant by the
term ramblings. A proffer permits the circuit court to make an informed decision and creates
a record on which an appellate court can decide whether there was reversible error in an
evidentiary decision. Sharp v. State, 2018 Ark. 274, at 5, 555 S.W.3d 878, 881. A proffer
would not generally have been required if the record’s context clearly enough informed the
circuit court and this court on what officer Gibson meant by the cloudy statement. But this
6
record is turbid, not clear, on the challenged denial. Therefore, a proffer from Lambert was
required to preserve Lambert’s objection that the circuit court erred when it did not allow
him to further question officer Gibson.
On a related point, Lambert also contends that the court unfairly limited his
constitutional right to effective cross-examination. This objection and argument were not
made to the circuit court, so the issue is not preserved for review.
C.
Lambert’s final argument is that the circuit court erred by allowing the prosecutor to
misstate the law about his parole eligibility to the jury. Here is what the prosecuting attorney
told the jury:
And I’ll be relatively brief because what you guys have here is more or
less a math problem that I want to talk to you about. In the jury instruction,
you've got the jury instruction with a bunch of kind of gobbledygook stuff
about one-half and one-third and all that. Here’s the bottom line I’m going
to tell you: that if you give Mr. Lambert a sentence in the department of
corrections, he’s going to be eligible for parole -- if he behaves himself, he’ll
be eligible in one-sixth of the time. So, the most he’s going to walk out of here
today with if you give him 30 years is five years. Now, the legislature made up the
range of sentencing. They're the ones that made up the amount of time that
people stay down there. The State gets blamed all the time for letting people
out who committed homicides and things like that. Why is a person out for
this? That’s up to the parole board and up the individual defendant. So, the
most you can give him if you give him a 30-year sentence is, if he behaves himself,
he’s going to stay five years before he’s eligible for parole.
(Emphasis added).
Lambert’s attorney objected to the prosecutor’s statements:
Judge, it’s an inaccurate statement of the law to say the most he’s going
to walk out of here with is five years. That’s just inaccurate. It’s up to the
parole board and it’s not automatic. That’s just not accurate. Even if he
behaves himself, he can still be denied parole.
7
In response, the circuit court instructed the jury that “final arguments by the attorneys are
not to be considered by you as evidence in the case or instructions on the law.” Lambert’s
counsel then presented a closing argument and clarified to the jury that, after five years, the
parole board could deny Lambert’s transfer for any reason or no reason and “the idea that
it’s automatically after five years he’s released is not accurate.” Lambert’s counsel also told
the jury, “So, don’t assume a 30-year sentence is five years. That’s not right. It’s not
accurate.”
Lambert now argues that the prosecutor’s statement that he would serve only the
minimum sentence allowed by law rather than be possibly parole eligible caused the jury to
issue a maximum sentence when it would not have otherwise done so. We disagree.
During the sentencing phase of the trial, the circuit court correctly instructed the
jury on the law related to parole, meritorious good time, and transfer eligibility in harmony
with the model jury instructions. See Ark. Code Ann. § 16-90-802; AMI Crim. 2d 9401.
Lambert did not object to the court’s instruction. After Lambert objected to the prosecuting
attorney’s statement during closing arguments, the court admonished the jury to follow its
(correct) instructions and not attorney arguments; defense counsel also clarified the
prosecutor’s statement on parole eligibility during closing argument. Finally, at no time
after the court had admonished the jury on the parole-eligibility issue did Lambert contend
that the court failed to sufficiently cure any perceived prejudicial misstatement of the law.
Nor did he ask for an additional remedy, such as a mistrial.
II.
The circuit court’s sentencing order is wholly affirmed.
8
Affirmed.
GRUBER, C.J., and GLADWIN, J., agree.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.
9