Deondra Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

DEONDRA JOHNSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACROO-644

FEBRUARY 14, 2001

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT

[NO. CR-1999-47]

HONORABLE RUSSELL ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant appeals a jury verdict finding him guilty of possession of cocaine with intent to deliver and of possession of marijuana. He asserts two points for reversal: (1) his counsel erroneously consented to the introduction of a State Crime Laboratory Report, thereby denying appellant of the effective assistance of counsel, and (2) the evidence presented at trial was insufficient to sustain the convictions. We affirm.

Appellant was arrested after a traffic stop and placed in the Stuttgart Police Department inmate holding cell. After he was removed from the holding cell to be transported to the county jail, a jailer discovered a black stocking cap with a Ralph Lauren Polo emblem on the front on the floor in the corner of the cell tucked inside an ashtray. Inside the cap was a bag of green, vegetable material and a cigarette package which

contained a rock-like, off-white substance. The appellant had been wearing a Ralph Lauren Polo black cap when he was taken into custody, but was not wearing any cap when he left the Stuttgart jail.

Detective Duke of the Stuttgart Police Department took possession of the substances and forwarded representative samples to the State Crime Laboratory. Appellant's counsel stipulated prior to trial that the test results could be received into evidence without the necessity of having a representative of the State Crime Laboratory present pursuant to Ark. Code Ann. § 12-12-313 (Repl. 1999). At trial, the evidence from the State Crime Laboratory had not been returned and was not admitted into evidence. Counsel for appellant moved for a directed verdict at the close of the prosecution which he renewed at the close of trial. He stated in the motion that he "had no idea that the evidence from the State Crime Lab had not been returned so I have probably committed an error against my client's interest by consenting to the entry of a Crime Lab report when there is no substance to go with it to say this is the substance that was tested and here is a result of the test." The trial court ruled that the admission of the report would not be prejudicial to appellant and that appellant's counsel could certainly argue the weight of it.

When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Appellant argues that there was insufficient evidence to support his conviction. We disagree and affirm.

At trial, Detective Duke testified that he took possession of the substances and forwarded representative samples to the State Crime Laboratory for a chemical analysis andthat based on his training and experience that the vegetable substance was marijuana and the rock like substance was cocaine. A video tape and other testimony showed the appellant wearing the cap when he was first taken into custody, that he was not wearing the cap after removal from the holding cell, and that no other inmates or visitors were placed in the cell during the relevant time period.

"[I]t is not essential to the establishment of the corpus delecti that the substance be introduced in evidence at all." Parker v. State, 265 Ark. 315, 330, 578 S.W.2d 206, 214 (1979). "[F]ailure to present the drugs physically only goes to the weight of the proof presented by the state." Williams v. State, 271 Ark. App. 435, 440, 609 S.W.2d 37, 40 (1980). We hold that there was sufficient evidence for the jury to conclude that the substances entered into evidence were marijuana and cocaine.

Appellant also argues for reversal that his trial counsel was ineffective. Claims of ineffective assistance of counsel may not be raised on direct appeal unless the issue was considered by the trial court, as on a motion for new trial. "The rationale behind this rule of law is that an evidentiary hearing and finding as to the competency of appellant's counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation." Reed v. State, 323 Ark. 23, 29, 912 S.W.2d 929, 930 (1996) (citations omitted). An actual ruling and fully developed facts are necessary before we can properly evaluate a claim of ineffective counsel. "As the trial court is in the best position to evaluate trial counsel's performance and competency, an order reciting its finding is necessary to enable us to conduct a meaningful review of the claim." Chavis v. State, 328Ark. 251, 253, 942 S.W.2d 853, 854 (1997) (quoting Dodson v. State, 326 Ark. 637, 644, 934 S.W.2d 198, 202 (1996)).

Appellant's counsel raised the issue of his ineffectiveness in his motion for directed verdict specifically citing his consent to the entry of the report; however, the trial court ruled only that the entry of the report was not prejudicial to appellant. Appellant failed to obtain a ruling from the trial court on the issue of ineffective assistance of counsel. It is the appellant's obligation to obtain a ruling at trial in order to properly preserve an issue for review. When the trial court does not specifically rule on an issue, when it denies Ark. R. Crim. P. 37 relief, and when the appellate court cannot tell from the court's order whether the issue was considered or decided, the issue is not preserved for appellate review. Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). Moreover, counsel sought no relief from the trial court when he "confessed error." Because appellant failed to obtain a ruling from the trial court, we affirm as to appellant's first point; however, nothing in this opinion should be construed as prohibiting appellant from filing a proper petition for postconviction relief pursuant to Ark.R.Crim.P. 37.

Affirmed.

PITTMAN and ROAF, JJ., agree.