Jesse James Howard v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 00-976

October 3, 2001

JESSE JAMES HOWARD APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE LEON JOHNSON,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE REVERSED AND DISMISSED

Jesse James Howard was charged with delivery of cocaine. He was found guilty by a Pulaski County jury and sentenced by the court to forty years' imprisonment. Based on this conviction the trial court also revoked appellant's probation on other charges. The sole issue on appeal is the sufficiency of the evidence. We agree with the appellant that the evidence is insufficient and reverse and dismiss.

At trial Jimmy White, an undercover officer for the Little Rock Police, testified that he and Detective Willie Thomas were inplain clothes and driving an unmarked car. They went to the Pic-Liquor Store to look for suspected drug transactions in the area. He saw the appellant in the parking lot of the liquor store and told him he was looking for a "twenty." The officer explained that that meant he was looking for a certain amount of crack cocaine. Appellant told the officer he did not have any on him, but that he could take them to a spot where they could get some. He took them to the corner of Tenth and Adams Streets located a few blocks away where they saw a man named Terry Beckton. Appellant told Beckton he was wanting to get a "twenty." Beckton then reached into his mouth and pulled out what he represented to be twenty dollars worth of crack cocaine. Officer White took the packet and gave Beckton a twenty-dollar bill. Beckton and the appellant then got into the officers' car and were dropped off at the corner of Eleventh and Washington Streets. The testimony of Detective Thomas was essentially the same.

In Beck v. State, 141 Ark. 102, 216 S.W. 497 (1919), the supreme court held that one who acts only as the agent of the buyer of intoxicating liquors and has no other interest in the sale, was not an accomplice of the seller. The supreme court applied that rule to a drug case in Bowles v. State, 265 Ark. 457, 579 S.W.2d 596 (1979). In Bowles an undercover officer approached the defendant seeking to buy large quantities of marijuana. Thedefendant gave the officer the names of two persons including one H.P. Cash. Bowles gave the officer a note introducing him to Cash and assured Cash that it was safe to do business with the officer.

Cash was later convicted of delivery of a controlled substance, and Bowles was tried separately and also found guilty.

In reversing Bowles's conviction, the supreme court relied in part on its earlier decision in Beck v. State, supra, and held that the evidence was insufficient to show that Bowles was not acting on behalf of the purchaser, or in his interests, as the "facilitator" of the sale of marijuana. The supreme court followed Bowles in its decision in Daigger & Taylor v. State, 268 Ark. 249, 595 S.W.2d 653 (1980), and we followed it in Heard v. State, 71 Ark. App. 377, 32 S.W.3d 30 (2000). When we view the facts in the case at bar in the light most favorable to the State, we cannot successfully distinguish them from those in Bowles or Daigger & Taylor or Heard.

Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994), is distinguishable. There the defendant was not only present in the house where the drugs were sold but also touted the quality of the drugs and made change for the buyer.

We conclude that the evidence is insufficient as a matter of law to support the conviction. Because the conviction was the basis of the revocation of appellant's probation, the trial court's decision in that regard must also be reversed.

Reversed and dismissed.

Crabtree and Baker, JJ., agree.