Thomas Kenter v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, JUDGE

DIVISION III CACR00-81

OCTOBER 4, 2000

THOMAS KENTER

AN APPEAL FROM THE JEFFERSON

APPELLANT COUNTY CIRCUIT COURT

[CR-97-581-3]

STATE OF ARKANSAS HONORABLE BERLIN C. JONES,

CIRCUIT JUDGE

APPELLEE

AFFIRMED

The appellant, Thomas Kenter, was convicted of three counts of delivery of a controlled substance and sentenced to fourteen years' imprisonment. Two of the counts involved delivery of marijuana, and one of the counts involved delivery of cocaine. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j)(1) appellant's attorney has filed a motion to be relieved as counsel and a brief stating that there is no merit to this appeal. Kenter has filed a pro se statement in which he argues that his conviction should be reversed because he received ineffective assistance of counsel at trial. Appellant did not raise the ineffective assistance of counsel contention at trial. The State agrees that there is no merit to appellant's appeal, notes that appellant's argument that he received ineffective assistance of counsel is not preserved for review, and recommends that his conviction be affirmed. We conclude that there can be no meritorious issue raised fromthe rulings that were adverse to appellant during the trial. Accordingly, we grant the motion to be relieved as counsel and affirm appellant's convictions.

Appellant's conviction arose from three separate incidents in which he provided a controlled substance to Michael Christopher Cooley, a special agent with the Drug Enforcement Agency (DEA). Agent Cooley testified that he and a confidential informant met with appellant on March 26, 1997, in the parking lot of a local grocery store and purchased approximately one pound of marijuana from appellant. David Schwefel of the DEA videotaped the transaction between Agent Cooley and appellant. The State played the video tape for the jury.

Agent Cooley stated that he took the substance he purchased from appellant, sealed it in an evidence bag, and mailed it to the DEA's lab in Dallas, Texas. Angie Detulleo, a forensic chemist with the DEA, testified that she weighed the substance mailed to the lab by Agent Cooley and tested a representative sample. According to Detulleo, the test revealed the substance was indeed marijuana. Appellant objected to the introduction of the marijuana into evidence, arguing that the State had only established that the sample actually tested was marijuana. The trial court overruled Appellant's objection and admitted into evidence the entire pound of marijuana purchased on March 26, 1997.

The second transaction between Agent Cooley and appellant occurred on April 2, 1997. Agent Cooley testified that he and the confidential informant again met with appellant in the same parking lot on the evening of April 2, 1997, to purchase a second pound of marijuana. Agent Cooley testified that appellant arrived at the meeting with half a poundof marijuana and requested that Agent Cooley give him the entire purchase price so appellant could obtain the other half pound from his supplier. Agent Cooley agreed, and appellant told Agent Cooley to move to another parking lot across the street while he went to meet his supplier. A few minutes later appellant returned with the second half pound of marijuana. This second transaction was also videotaped, and the videotape was played for the jury.

Agent Cooley and Angie Detuello testified that they used identical procedures to test the second pound of marijuana as they had used to test the first pound. Appellant again objected to the introduction of the second pound into evidence arguing that only the representative sample actually tested was shown to be marijuana. The objection was overruled, and the second pound of marijuana was introduced into evidence.

Agent Cooley also testified that he purchased crack cocaine from appellant on April 23, 1997. Agent Cooley stated that he and the informant met appellant in appellant's driveway where appellant was working under the hood of a van. According to Agent Cooley, he told appellant he wanted some crack for his girlfriend. Appellant placed a piece of crack on the battery of the van and told Agent Cooley to put the money on the battery. Agent Cooley stated he mailed the substance provided by appellant to the DEA lab in Dallas, Texas. Angie Detuello testified that she tested the substance and her tests revealed that the substance contained cocaine base. After all evidence had been introduced, appellant moved for a directed verdict on all three counts. The trial court denied the motion, and a jury found appellant guilty on all three counts.

Sufficiency of the Evidence

The first adverse ruling that we must address is the trial court's denial of appellant's motion for a directed verdict. Double jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to the review of all other suggested trial errors. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). At the conclusion of all evidence, appellant moved for a directed verdict on all three counts of delivery of a controlled substance. With respect to the two counts for delivery of marijuana, appellant argued that the State failed to prove the substances appellant provided on March 26, 1997, and April 2, 1997, were marijuana and that they should not have been introduced into evidence. With respect to the count for delivery of cocaine, appellant argued that the evidence was insufficient to establish he actually delivered the substance to Agent Cooley. In the no-merit brief, appellant's counsel contends that it was proper for the trial court to deny the motions for a directed verdict.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State and sustain the conviction if there is substantial evidence to support it. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Substantial evidence is that evidence that is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any evidence that may have been erroneously admitted, in the light most favorable to the verdict. Smith, supra. We do not weigh the evidence presented at trial asthat is the province of the factfinder. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

Arkansas Code Annotated § 5-64-401 (Supp. 1999) provides that it is unlawful for any person to deliver a controlled substance. "Deliver" is defined as "the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship[.]" Ark. Code Ann. § 5-64-101(f) (Repl. 1997). We hold that the evidence at trial was sufficient to support a conviction on all three counts of delivery of a controlled substance.

Appellant testified that at the time of the three meetings with Agent Cooley he was addicted to crystal methamphetamine and Agent Cooley's informant was his supplier. Appellant admitted that he provided the substances on the three occasions to Agent Cooley but testified that he was only acting as a go-between. According to Appellant, the only reason he provided the substances was because Agent Cooley's informant refused to sell him any more crystal methamphetamine unless appellant delivered the first pound of marijuana. Appellant further testified that he agreed to deliver the second pound of marijuana and the crack cocaine because the confidential informant indicated that he would give appellant some free crystal methamphetamine for the second and third deliveries. Appellant stated that he did not keep any of the money Agent Cooley paid for the substances. According to appellant, all the money was given to his source. In light of appellant's admissions to delivering the substances, Agent Cooley's testimony, the testimony indicating the substancesappellant delivered were indeed marijuana and crack cocaine, and the video tapes, we conclude there was sufficient evidence to support appellant's convictions.

Other Adverse Rulings

The only other rulings made by the trial court that were adverse to appellant were the denials of his objections to the introduction of the marijuana into evidence. Appellant argues that because only a sample of the substances he provided Agent Cooley were tested, the State failed to establish the entire amount of the substances was marijuana. The trial court did not err in admitting the marijuana over appellant's objections. In Mullins v. State, 277 Ark. 93, 639 S.W.2d 514 (1982), our supreme court held that in the absence of any reason to speculate that the untested material is something other than the material that was tested, the trial judge can find from the representative sampling that the untested material is identical to the tested material. The record in this case does not contain any basis for speculation that the untested material differed from the tested material. Therefore the trial court did not err in admitting the entire amount of marijuana into evidence.

In regard to appellant's pro se argument that he received ineffective assistance of counsel at trial, we do not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court. Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996). Even constitutional arguments cannot be raised for the first time on appeal. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). If the appellant should wish to raise an ineffective-assistance-of-counsel claim, he may do so in a petition pursuant to Arkansas Rule of Criminal Procedure 37.

From the review of the record and the briefs before us, we find the appeal to be without merit. Counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Pittman and Stroud, JJ., agree.