Hudson v. State

Donnie Eugene HUDSON v. STATE of Arkansas

CA CR 95-452                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered April 17, 1996


1.   Evidence -- sufficiency of -- factors on review. -- In
     reviewing the sufficiency of the evidence on appeal, the
     evidence is reviewed in the light most favorable to the
     appellee and the verdict is affirmed if it is supported by
     substantial evidence; substantial evidence is evidence that is
     of sufficient force and character that it will, with
     reasonable certainty, compel a conclusion one way or the other
     without resort to speculation or conjecture.

2.   Evidence -- jury's verdict supported by substantial evidence -
     - trier of fact determines weight to be given testimony. --
     Appellant's argument that the State's evidence was
     insufficient because it rested solely on the testimony of one
     detective, and the testimony of the confidential informant and
     the appellant's wife contradicted the detective's testimony,
     was without merit; decisions regarding the credibility of the
     witnesses and the weight to be given their testimony are for
     the trier of fact to resolve; there was substantial evidence
     to support the jury's verdicts.

3.   Statutes -- allegation that statute change decriminalized
     appellant's conduct not supported by law -- motion to dismiss
     properly denied. -- Appellant's argument that the trial court
     erred in failing to dismiss the charges against him because
     delivery of prophylhexedrine was decriminalized after the date
     of the offense was not supported by citation to the previous
     or current statutes that he alleged were changed and
     "decriminalized" his conduct; additionally, Ark. Code Ann.
      1-2-120(b) (1987) states that when any criminal statute is
     repealed, all offenses committed under it while it was in
     force shall be punished as if it were in force,
     notwithstanding the repeal, unless otherwise expressly
     provided in the repealing statute; appellant's argument had no
     merit, and the motion to dismiss was properly denied.


     Appeal from Benton Circuit Court; Tom Keith, Judge; affirmed.
     William R. Mayo, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     John B. Robbins, Judge.
*ADVREP*CA4*              DIVISION I









DONNIE EUGENE HUDSON
                     APPELLANT

V.


STATE OF ARKANSAS
                      APPELLEE



CACR 95-452

                                                   APRIL 17, 1996


APPEAL FROM THE BENTON COUNTY
CIRCUIT COURT, [CR93-433-1]

HONORABLE TOM KEITH,
CIRCUIT JUDGE


AFFIRMED





                     John B. Robbins, Judge.

     Appellant Donnie Eugene Hudson was convicted by a jury on two
counts of delivery of a controlled substance (prophylhexedrine) on
September 22, 1994.  He was sentenced as a habitual offender to
five years in the Arkansas Department of Correction on each count,
with the sentences to run concurrently.  Appellant contends on
appeal that the evidence was insufficient to support the jury's
verdict and that the trial court erred in overruling his motion to
dismiss.  We find no error and affirm.
     In reviewing the sufficiency of the evidence on appeal, we
review the evidence in the light most favorable to the appellee and
affirm if the verdict is supported by substantial evidence.  Ramey
v. State, 42 Ark. App. 242, 863 S.W.2d 839 (1993).  Substantial
evidence is evidence that is of sufficient force and character that
it will, with reasonable certainty, compel a conclusion one way or
the other without resort to speculation or conjecture.  McCullough
v. State, 44 Ark. App. 99, 866 S.W.2d 845 (1993).
     Frankie Hart, Detective Sergeant of the Rogers Police
Department, testified that in 1990 he was working undercover
with the 19th Judicial Drug Task Force in the Siloam Springs area. 
He testified that he made contact with the appellant through a
confidential informant, Lee Elmore, on October 8, 1990.  On October
12, 1990, Detective Hart and the informant went to the apartment of
Stacy Warder, the appellant's girlfriend, and discussed a drug
transaction with the appellant.  Detective Hart testified that
shortly after he arrived the appellant mixed some water and a
powdery substance in a spoon, drew some of the solution into a
syringe, and injected the solution into appellant's left arm. 
Further testimony indicated that the appellant removed a plastic
bag from a basket, located on a shelf in the living room, and
handed it to Detective Hart.  Hart testified that the bag contained
an off-white powdery substance, which the appellant represented to
be three-and-a-half grams of methamphetamine.  Detective Hart paid
the appellant $250.00 for this substance, which later test results
revealed to be prophylhexedrine.
     On October 22, 1990, Detective Hart informed the appellant
that he was interested in purchasing "a couple of eight-balls" of
methamphetamine.  The appellant contacted Hart by calling him on
Hart's pager the next day, October 23, 1990.  Hart went back to
Stacy Warder's apartment and made contact with the appellant. 
Appellant went to the same shelf and basket in the living room and
retrieved three plastic packets.  Appellant stated that the packets
weighed a total of eight-and-one-half grams.  However, Detective
Hart brought his own scales to weigh the substance because of the
appellant "cheating or shorted" him in the past.  Hart's scales
revealed the substance only weighed five grams, and later tests
revealed that substance was in fact prophylhexedrine.  Hart paid
the appellant $250.00 for three-and-one-half grams and the
appellant gave Hart the other one-and-one-half grams to make up for
another deal that was "short."
     The appellant argues on appeal that the State's evidence
was insufficient because it rested solely on the testimony
of Detective Hart.  He contends that the testimony of the
confidential informant, Lee Elmore, and the appellant's wife, Retha
Hudson, contradicted Hart's testimony, therefore the evidence was
insufficient.  However, decisions regarding the credibility of the
witnesses, and the weight to be given their testimony, are for the
trier of fact to resolve.  Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988).  We find that there was substantial evidence to
support the jury's verdicts.
     Appellant's second point is that the trial court erred
in failing to dismiss the charges against him.  He argues that
because the legislature "dropped" prophylhexedrine from the
statutory schedule of controlled substances after the date of
the offense, the delivery of prophylhexedrine was effectively
decriminalized and he could no longer be convicted of the charged
offenses.  Appellant failed to cite the previous or current
statutes that he alleges were changed and "decriminalized" his
conduct.  We note on this point, however, that there is a general
statute that deals with retroactivity, Ark. Code Ann.  1-2-120(b)
(1987), which states:
       (b)  When any criminal or penal statute is repealed,
     all offenses committed or forfeitures accrued under it
     while it was in force shall be punished or enforced as if
     it were in force, notwithstanding the repeal, unless
     otherwise expressly provided in the repealing statute.
We find that appellant's argument has no merit and the motion to
dismiss was properly denied.
     Affirmed.
     Cooper and Stroud, JJ., agree.