Ronald P. Syrock v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RONALD P. SYROCK,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-883

MARCH 23, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT,

FORT SMITH DISTRICT,

(NO. CR03-856),

HON. JAMES R. MARSCHEWSKI, JUDGE

AFFIRMED

Sam Bird, Judge

On August 13, 2003, Ronald P. Syrock was tried before a jury in the Sebastian County Circuit Court for possession of methamphetamine with intent to deliver and possession of drug paraphernalia. He was convicted of both charges and was sentenced to concurrent terms of sixteen years and four years, respectively, in the Arkansas Department of Correction. On appeal Syrock contends that the trial court erred in denying his motion in limine to prohibit two police officers from testifying about a confidential informant's alleged prior purchase of methamphetamine from him. We find no error and affirm the conviction.

Officer Will Dawson of the Greenwood Police Department and Twelfth Judicial Drug Task Force testified regarding his surveillance of a residence on August 7, 2003: he observed that a reliable confidential informant entered the residence, carrying currency previously photocopied by the police, and also observed that Syrock arrived afterward. Dawson further testified:

I saw the defendant get in his vehicle and leave. At that time I began following him and then all the way down to I believe 50th Street. There was a gas station that he stopped at. At that time I made contact with him as he exited the store.

After I place someone under arrest, I do a search incident to an arrest to make sure they don't have any weapons or any contraband on them at that time. I do a pat-down, and during that time I located an object in one of his front pockets, pulled the object out.

Dawson testified that during the pat-down search he found a straw, a spoon, a plastic bag with a white crystal substance, a plastic baggie, and $1002 in currency, three bills of which had been photocopied as the recorded "buy money." Officer Darrel Minot testified that he had given the confidential informant buy money to make a purchase from the residence; that afterwards the informant gave him a bag containing a crystal substance, which field-tested positive for methamphetamine; and that Minot saw the buy money after Dawson arrested Syrock.

Syrock contended in his motion in limine that testimony of facts involving the prior delivery of methamphetamine would constitute extreme prejudice that would go beyond any probative value in the present case. The State responded that under Rule 404(b) of the Arkansas Rules of Evidence, the evidence was relevant and admissible because it showed intent and the reason that Syrock possessed methamphetamine in the current case. Syrock's arguments to the trial court and in his appellate brief are primarily based upon Rule 404(b), Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971), and Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). He argues that the State attempted to overwhelm the jury with the notion that he was a criminal by introducing evidence of a separate and uncharged crime. He notes that he was not arrested or charged with any crime related to the earlier buy, that no cautionary instruction was given to the jury on the uncharged crime, and that the buy was not a part of the transaction with which he was charged.

Arkansas Rule of Evidence 404(b) (2004) 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 left to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Holt v. State, supra. Evidence that is offered pursuant to Rule 404(b) must be independently relevant. Id. Evidence is independently relevant if it tends to prove a material point and is not introduced solely to prove that the defendant is a bad person. Id. However, even if independently relevant, evidence of other crimes may still be excluded if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Id. A trial court's ruling relating to the admission of evidence under Rule 404(b) is entitled to great weight and will not be reversed absent an abuse of discretion. McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003).

In Sweatt v. State, supra, the Arkansas Supreme Court held that testimony showing the defendant's previous possession and selling of marijuana should not have been allowed in his trial for selling LSD. The Sweatt court explained:

Our basic rule was stated in Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954): "The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime." In the case at bar the issue for the jury was whether Sweatt had sold LSD to Robbie White. Proof that Sweatt had sold marijuana on other occasions had no relevancy except to show that Sweatt had dealt in drugs before and hence was likely to have done so again. That is precisely the type of proof that must be excluded. If Sweatt was guilty of other crimes, then, as we said in Alford, "each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt."

251 Ark. at 651-52, 473 S.W.2d at 914.

In Holt v. State, supra, the defendant was convicted on drug charges that arose from the discovery of items found on June 13, 2000. Citing Sweatt v. State, supra, this court held that the admission of testimony by police officers regarding evidence found in his vehicle during an inventory search in Oklahoma in April of 1999 was improper under Rule 404(b). In Holt we set forth the following rationale for reversing the conviction and remanding for a new trial:

The incident in April 1999 was no more than an arrest; there is no evidence of any charges being filed or of any conviction. This served as the first testimony that the jury heard in this trial as well as the first piece of evidence shown to the jury. The evidence was highly prejudicial and had no independent relevance; therefore, we cannot say that the error was slight or that it was cured by the cautionary instruction.

Holt, 85 Ark. App. at 319, 151 S.W.3d at 6. In the present case, the trial court ruled that the prejudicial effect in Holt was distinguishable and that evidence of the controlled buy was "highly probative to show that Syrock possessed or made a delivery on the same day to an undercover police officer, that marked money was used, and marked money was recovered at the same time." We agree.

Here, evidence of the earlier delivery of methamphetamine on the same day was independently relevant to establish that Syrock possessed methamphetamine with intent to deliver. When a defendant is charged with possession with intent to deliver, evidence of prior drug sales is admissible to show intent or purpose if not too remote in time. E.g., Owens v. State, 325 Ark. 110, 122, 926 S.W.2d 650, 657 (1996) (holding that testimony was relevant to issues of whether the defendants were actually manufacturing methamphetamine, whether they were actually using certain ordinary household items in the manufacturing process, whether they possessed the drug with intent to deliver, and whether items found in the house could be used as drug paraphernalia); Scroggins v. State, 312 Ark. 106, 115, 848 S.W.2d 400, 405 (1993) (holding that testimony about purchase of drugs two or three days prior to the charged incident was admissible to show intent); Crawford v. State, 308 Ark. 218, 220, 822 S.W.2d 386, 387 (1992) (holding that prior sale was not too remote when it occurred the day before the charged offense); Holloway v. State, 293 Ark. 438, 446, 738 S.W.2d 796, 801 (1987) (holding that evidence "of an indication of the intent to sell drugs nine or ten months before the events of this case" was admissible); Lincoln v. State, 285 Ark. 107, 109, 685 S.W.2d 166, 167-68 (1985) (holding that proof of prior drug sales occurring once or twice a month for about a year was not too remote in time and was admissible to show intent).

In the present case, the officers testified that they found methamphetamine, paraphernalia, and the money given to the informant for the buy. The State notes Syrock's apparent defense at trial, presented by defense counsel in his opening statement and presented through Syrock's own testimony, that he possessed the methamphetamine for his personal use. Defense counsel submitted in his opening statement that the jury would unquestionably find that Syrock was a meth user who had methamphetamine in his pocket and possessed drug paraphernalia for ingesting it, but the jury would also find that Syrock possessed the methamphetamine because he was a user and not "because he wanted to go out and sell it." Syrock admitted possessing nine grams of methamphetamine on the day of his arrest, but he testified that it was for personal use, that the paraphernalia was what he used for snorting it, and that he was not engaged in selling methamphetamine. Thus, the question of Syrock's intent in possessing the methamphetamine was an issue for the jury to decide. See Neal v. State, 320 Ark. 489, 492-93, 898 S.W.2d 440, 443 (1995) (holding that, in view of defendant's claim in opening statement that he had no knowledge of the presence of marijuana in his house, evidence of prior sales was "relevant to cast grievous doubt upon his testimony").

Finally, because Syrock did not request a cautionary instruction by the trial court, we do not address any argument he makes that the jury was improperly influenced by prejudicial evidence of the previous uncharged crime. Elliot v. State, 342 Ark. 237, 241, 27 S.W.3d 432, 435 (2000). We hold that the trial court did not abuse its discretion by allowing testimony about a delivery of methamphetamine that occurred on the same day, some five minutes prior to Syrock's arrest, to show intent on the charge of possession of methamphetamine with intent to deliver.

Affirmed.

Glover and Roaf, JJ., agree.