Tina Jo Rye v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION II

TINA JO RYE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-90

October 11, 2000

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. CR98-444-1]

HON. TOMMY J. KEITH,

CIRCUIT JUDGE

AFFIRMED

Tina Rye was convicted by a Benton County jury of two counts of delivery of a controlled substance (methamphetamine). She was sentenced to ten years' imprisonment in the Arkansas Department of Correction and fined $500 on each count, with the sentences to run concurrently. She argues on appeal that the trial court erred (1) in denying her motion for directed verdict; (2) in allowing the jury to use transcripts while audiotapes of the drug purchases were being played; and (3) in not allowing character witnesses to testify regarding prior bad acts of Officer Rick Lane, pursuant to Arkansas Rule of Evidence 404(b). We affirm.

Appellant was convicted for selling approximately one gram of methamphetamine to Junior Foster on both May 22, 1998, and May 29, 1998. Foster, who was working as a confidential informant, arranged to make the purchases from appellant at his place of employment, Franklin Electric. Appellant worked at Franklin Electric for the vending machine company that stocked the employee break room. On the dates of the purchases, Foster was wired with a body microphone and given photocopied money with which to purchase the drugs; Foster's person and his vehicle were also searched prior to each transaction. On each occasion, Foster purchased $100 of methamphetamine, which he immediately turned over to Officer Rick Lane in the parking lot at Franklin Electric. Each transaction was recorded with the body microphone, but portions of the recordings were inaudible due to background noise in the plant. Officer Lane had a secretary transcribe the tapes to the best of her ability; he then listened to them and made corrections. Over appellant's objection, the transcriptions were given to the jury to follow while the tapes were played in court, but they were not introduced into evidence.

Appellant first argues that the trial court erred in not granting her motion for directed verdict, claiming that the State's primary witness, Junior Foster, was not credible due to inconsistencies in his testimony; that the jury could not infer that a drug transaction occurred because a substantial portion of the audiotapes were inaudible; and because of "numerous questionable procedures" that occurred in this case.

Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). The test is whether there issubstantial evidence to support the verdict; substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id. We review the evidence in the light most favorable to the appellee, considering only the testimony that tends to support the verdict. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000).

With respect to the credibility of Junior Foster's testimony and the evidence contained on the audiotapes, we affirm. It is within the province of the trier of fact to assess the credibility of the witnesses, and we are bound by the factfinder's determination on the issue of credibility. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). The trier of fact is free to believe all or part of a witness's testimony. Id.

In the present case, Foster testified that he purchased methamphetamine from appellant on May 22 and 29, and that he had made fifteen to twenty previous methamphetamine purchases from her. His testimony regarding the drug purchases was corroborated by the audiotapes. Appellant testified that she did not sell methamphetamine to Foster. However, the jury believed Foster rather than appellant, which is within its province. There was substantial evidence to support appellant's convictions for delivery of methamphetamine.

Appellant's contention of "numerous questionable procedures" was not made to the trial court in appellant's motions for directed verdict; therefore, we do not address this argument. Where an appellant argues on appeal grounds for a directed verdict in addition to the grounds he raised below, the appellate court limits its review to those grounds that were presented to the trial court. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).

Appellant next argues that the trial judge erred in allowing the jury to use the aid of transcripts while audiotapes of the drug purchases were played.

In support of her argument, appellant cites Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995), and argues that the trial judge should have listened to the audiotapes and compared the transcripts to the dialogue to determine if the transcripts were accurate. Here, Officer Lane testified that he listened to the tapes, compared them to the transcripts, and determined that the transcripts were accurate. Moreover, in Childress, the transcripts were actually introduced into evidence.

In the case at bar, neither transcript was introduced into evidence; they were used by the jurors only while the tapes were being played and were then returned. Additionally, the trial judge issued the following admonishment to the jury:

What I want to admonish the jury to is that what is contained on the tapes is evidence, what is contained in the transcripts is not evidence. The transcripts are simply to aid to help you understand what's on the tape. If you hear something different on the tape than what's on the transcript, understand that what's on the tape is what is evidence in this case. You'll receive these transcripts to use while you're listening to the tape. Once you have finished hearing the tape, you're to return the transcripts and you'll not be allowed to refer to those again. You'll be allowed to refer to the tape, but not the transcript, or your notes of what you hear.

If the transcript of a tape is essentially accurate, it is admissible if it would otherwise be necessary to play the tape several times for the jurors. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993). This decision is discretionary with the trial court, and we will not reverse the trial judge's ruling unless there is an abuse of discretion. Id. Although appellant contends that there were inaccuracies in the transcription of the audiotapes, she does notshow how she was prejudiced by any of these alleged inaccuracies. We do not reverse absent a showing of prejudice. Leavy, supra. We cannot say that the trial judge abused his discretion in allowing the jury to use the transcripts while listening to the audiotapes.

Appellant's last point on appeal is that the trial court erred in not allowing character witnesses to testify pursuant to Rule 404(b) of the Arkansas Rules of Evidence as to prior bad acts of Officer Lane to demonstrate motive, state of mind, or intent. Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id.

Appellant claimed at trial that after she was arrested, Officer Lane had interrogated her for three hours at the police station and demanded that she have sex with him, an allegation that Officer Lane denied. Appellant wanted to introduce evidence from Darrin Forrest and Bill Gann that Officer Lane had made comments of a sexual nature about her in 1994, when appellant and Lane worked at Franklin Electric. The trial judge refused to alloweither witness to testify about those events because they were too remote in time. However, he did allow Allen Rye, appellant's husband, to testify regarding alleged sexual comments which Officer Lane made about appellant in 1994, to explain his motive for telling Officer Lane that appellant would not assist in undercover operations. Thus, the evidence was presented to the jury, and Forrest's and Gann's testimony would have been cumulative. Moreover, this testimony was not independently relevant to the charges of delivery of a controlled substance on which appellant was convicted. We find no abuse of discretion in the trial court's refusal to allow the testimony.

Affirmed.

Pittman and Hart, JJ., agree.