Terry Lynn Williams v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

TERRY LYNN WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-629

March 13, 2002

APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT

[NO. CR-98-70]

HON. HAROLD S. ERWIN,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with possession of marijuana with intent to deliver. A jury trial held in September 2000 resulted in a mistrial. After a second jury trial on the same charge in December 2000, appellant was convicted of possession of marijuana with intent to deliver and sentenced to six years' imprisonment. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in refusing to empanel another jury to hear his case; in denying his motion for a directed verdict; in receiving evidence for which no satisfactory chain of custody had been established; in receiving hearsay evidence; and in assessing costs against him. We affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence and, where properly raised and preserved, must be reviewed on appeal before trial errors are considered. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Here, appellant's challenge to the sufficiency of the evidence was not properly raised below because he made only a general motion for a directed verdict and failed to specify the manner in which the evidence against him was insufficient to support a conviction. Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001). Consequently, the question of evidentiary sufficiency is not properly before us, and we do not address it.

With respect to asserted trial errors, appellant contends that the trial court erred in refusing to empanel another jury to hear his case. The record shows that, before voir dire began, appellant objected to the venire on the ground that the same panel had been used in his first trial in September 2000. The trial judge informed him that the names of jurors who actually heard the first trial had been removed. Appellant then objected on the ground that the venire still contained jurors who had been subjected to voir dire in the earlier trial, even though they had not been selected to hear it. The trial judge overruled this objection. Appellant argues on appeal that this was error. We do not agree. The right of defendants to exclude jurors who participated in earlier trials has not been extended to exclude potential jurors who have not actually served as jurors in a prior trial involving the same offense. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). Jurors are presumed to be unbiased, and a trial court's findings regarding juror bias will not be reversed on appeal in the absence of an abuse of discretion. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). Here,all of the jurors who sat during appellant's first trial were excused and, although appellant was afforded an opportunity to inquire into actual bias on voir dire, he failed to identify any specific juror who was biased, or to object to the composition of the jury after it was actually seated. Under these circumstances, appellant failed to meet his burden of proving that the jury was biased, and the trial court did not err in overruling his objection to the jury panel. Id.

Next, appellant argues that the trial court erred in receiving into evidence twelve bags of marijuana for which no satisfactory chain of custody had been established. We disagree.

[T]he purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. To prove authenticity of evidence the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. On review, we will not reverse a ruling on an evidentiary matter regarding the admissibility of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court.

Guydon v. State, 344 Ark. 251, 255, 39 S.W.3d 767, 769-70 (2001) (citations omitted). In the present case, Investigator Michael Steele testified that he found the twelve bags of marijuana and turned them over to the Drug Task Force drug custodian, Ellen Tarno. Ellen Tarno testified that Officer John Beaver took the marijuana to the State Crime Laboratoryon April 28, 1998, and that she picked it up at the Crime Laboratory on February 26, 1999. Ms. Tarno later discovered that the test results from the Crime Laboratory did not indicate that the contents of the twelve bags had been tested. She then resubmitted the evidence to the Crime Laboratory for testing. Officer Steele testified that he took the envelope containing the evidence to the Crime Laboratory on June 13, 2000, and opened the envelope in the presence of Crime Laboratory personnel. Finally, Gene Bains testified that, after Officer Steele handed him the open envelope, he tested the contents of the twelve bags and determined that it was marijuana. Given this record, we think that the trial judge could reasonably be satisfied that the evidence was genuine and had not been tampered with, and we hold that he did not abuse his discretion by receiving the twelve bags of marijuana into evidence.

Appellant also asserts that the trial court erred in admitting Officer Steele's testimony that he received information from informants as to appellant's place of residence, and argues that this testimony was inadmissible as hearsay because these informants did not testify at trial. However, the record before us contains no indication that appellant raised a hearsay objection to this testimony at trial; consequently, this argument is not preserved for appeal. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001); Duvall v. State, 41 Ark. App. 148, 852 S.W.2d 144 (1993).

Finally, appellant contends that the trial court erred in assessing $150.00 in court costs against him, asserting that to do so invaded the province of the jury and deprived him of his federal constitutional right to a fair trial. However, this contention is presented as a bareassertion, without any argument or citation to authority. We note that assessment of court costs from convicted defendants is mandated by Ark. Code Ann. § 16-10-304 (Repl. 1999), and, in the absence of any convincing argument or authority to the contrary, we cannot say that the trial court erred in doing so. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001).

Affirmed.

Stroud, C.J., and Vaught, J., agree.