Cornelius Spencer v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CACR00-826

MAY 30, 2001

CORNELIUS SPENCER

AN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT

v. [CR98-4492]

STATE OF ARKANSAS HONORABLE JOHN B. PLEGGE, APPELLEE CIRCUIT JUDGE

AFFIRMED

Cornelius Spencer was convicted in a bench trial of possession of a controlled substance with intent to deliver and simultaneous possession of drugs and firearms. At trial, Spencer objected to the admission of the gun and the drugs into evidence, contending that the State did not sufficiently establish a chain of custody. The trial court overruled the objection, and appellant now reasserts this argument on appeal. We find no error and affirm.

The record reveals that members of the Pulaski County Sheriff's Office and other emergency personnel encountered appellant and others after being called to the scene of a one-car accident. William Edgin, a paramedic, testified that when he arrived on the scene of the accident, he found one passenger trapped in the vehicle. Edgin pulled thepassenger from the vehicle and felt a pistol in his right front pocket. Edgin stated that he removed the weapon, unloaded it, leaving the bullets in the car, and gave the gun to a police officer who he believed was Deputy Lett. Edgin did not recognize appellant as the person from whom he recovered the weapon, but he did recognize the gun marked as State's Exhibit 1 as the weapon that he recovered on the evening of July 23, 1998.

Deputy Lett testified that when he arrived on the scene of the accident, he observed Mr. Edgin remove appellant from the vehicle. Deputy Lett also testified that Mr. Edgin gave him a revolver. Finally, he stated that he recovered several shell casings that fit the weapon from inside the vehicle. Lett stated that he gave the weapon identified as State's Exhibit 1 to Deputy Frances Frakes.

Marvin Roberts, the nursing supervisor of the Emergency Department and Trauma Center at UAMS testified that, according to his records, he came into contact with appellant on July 23, 1998. Roberts stated that he found a quantity of a white substance wrapped in "baggies" in appellant's right front pocket. Roberts identified State's Exhibit 2 as the same or similar items that he found on appellant's person. Mr. Roberts stated that he gave the items to Sergeant Jack Riley of the UAMS Police Dept. Sergeant Riley testified that Roberts gave him the bags and that he subsequently gave the items to Frances Frakes. Frances Frakes testified that he obtained possession of the pistol from Deputy Lett and the white substance from Jack Riley. Frakes stated that he then took the evidence to the property room at the Sheriff's Department where he filled out the proper paperwork and submitted the white substance to the State Crime Laboratory for testing.

Based on this testimony, the State sought to introduce into evidence the gun, the drugs, and the lab report. Appellant objected to the introduction of the gun and drugs, arguing that the paramedic could not positively identify him or the weapon and that Roberts could only remember the incident after reviewing his notes. The trial court admitted the evidence over appellant's objections, and he now raises the same arguments on appeal.

The purpose of the chain of custody is to prevent the introduction of evidence which is not authentic. Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). To prove its authenticity, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Id. It is not necessary that every possibility of tampering be eliminated; it is only necessary that the trial court, in its discretion, is satisfied that the evidence presented is genuine, and in reasonable probability, has not been tampered with. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Any minor discrepancies are for the trial court to weigh and, absent some evidence of tampering, the trial court is accorded discretion and its ruling in this regard will not be reversed on appeal absent an abuse of discretion. Holbird v. State, 301 Ark. 382, 784 S.W.2d 171 (1990).

With respect to the weapon, appellant argues that the chain of custody is incomplete because Edgin could not be sure that State's Exhibit 1 was the gun that he retrieved from the injured passenger and because he was not clear regarding to whom he had given the weapon. We note that appellant never suggests that the weapon wassubject to tampering. Instead, appellant focuses solely on Mr. Edgin's inability to state that he was certain that he recovered a weapon from appellant or that he had given the weapon to Deputy Lett. Although Mr. Edgin could not testify to a certainty that Exhibit 1 was the weapon that he recovered from appellant or that he had given the weapon to Deputy Lett, Edgin did state that he believed that Exhibit 1 was the weapon that he removed from the injured passenger's pant pocket and that he thought he gave the gun to Deputy Lett. Moreover, Edgin's account of his action at the accident scene, is bolstered by Lett's testimony. Deputy Lett explicitly stated that Edgin gave him the weapon marked as State's Exhibit 1. Thus, Deputy Lett's testimony clears up any uncertainty on Edgin's part. There was no abuse of discretion in allowing the weapon to come into evidence.

With respect to the crack cocaine, appellant argues that because Nurse Roberts did not remember the incident and that his testimony was based upon a review of his records, he could not sufficiently establish that he recovered the crack cocaine from appellant. Again, we note that appellant does not allege that the drugs were subject to any tampering, but focuses solely on whether a chain of custody was established. We also note that appellant misstates Roberts' testimony. Roberts testified that he encounters nearly a hundred patients a day and that he did not remember appellant, but Roberts never stated that he did not remember the incident. In fact, Roberts testified that he remembered the incident quite well and that he remembered that when he found what he believed to be drugs or drug paraphernalia he made sure to take good and accurate notesin the event that he would have to testify in a criminal trial.

According to the record, it does not appear that Roberts reviewed his records while on the stand. Rather, it appears that he reviewed his records prior to testifying. In light of this fact, if appellant wished to make an objection based on Roberts' failure to remember specifics about the night of the incident, his proper objection was to Roberts' competency as a witness. Rule 602 of the Arkansas Rules of Evidence provides that a person may not testify to a matter unless it is sufficiently established that he has personal knowledge of the matter. In this case, once Roberts was allowed to testify, whether any weight was to be given to that testimony was a credibility determination left to the discretion of the trial court. Based on this record, we cannot conclude that the trial court abused its discretion in admitting the drugs into evidence.

Affirmed.

Pittman and Bird, JJ., agree.