Charles Dugger v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR02-637

September 8, 2004

CHARLES DUGGER AN APPEAL FROM LONOKE

APPELLANT COUNTY CIRCUIT COURT

[CR99-290]

V. HON. LANCE HANSHAW, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Charles Dugger appeals from his conviction for delivery of methamphetamine, challenging only the sufficiency of the evidence supporting his conviction. We affirm appellant's conviction.

The conviction in this case resulted from an undercover drug buy. On May 19, 1999, at approximately 3:00 p.m., Scott Pillow, of the Arkansas State Police, met with Burton Evans, a confidential informant. Evans told Pillow that he had arranged to purchase from appellant an "eight ball," (one-eighth of an ounce or 3.5 grams) of methamphetamine. The purchase was to occur at Parker's Corner in southeast Lonoke County, near Carlisle.

In preparation for the controlled buy, Pillow searched Evans's person, and other officers searched his vehicle. No weapons, money, or contraband were found. Pillow gave Evans $300 to purchase the drugs.1 Although it is standard procedure for an officer to photocopy the money used in an undercover drug buy, Pillow did not photocopy the money used in this case because the photocopier in the police station was not working. At approximately 4:55 p.m. the same day, Evans met appellant, with Pillow stationed approximately one-fourth of a mile away, watching the transaction through binoculars.

Evans testified that because he was late, appellant had sold to someone else the methamphetamine that Evans was to buy. Therefore, appellant sold Evans what was later determined to be approximately .457 grams of methamphetamine. Evans gave appellant a total of $100 of the drug money, but he testified that he paid appellant $60 of that amount for a debt that he owed appellant for a towing bill.

After the transaction, Pillow followed Evans back to the police department, where Evans gave Pillow the drugs and returned the remaining $200 of the unused drug-buy money. Evans and his vehicle were searched again, but no contraband or money was found.

Appellant was subsequently charged with delivery of a controlled substance, methamphetamine. He received a jury trial, during which Pillow testified as to the events surrounding the drug transaction. Pillow admitted that he could not identify appellant as the person who sold the drugs because he was too far away when the transaction took place. However, he said that the person that he saw through his binoculars was "similar in appearance" to appellant. Pillow also admitted that Evans was paid $100 to assist the police in making the drug buy.

Evans identified appellant as the person who sold him the drugs. He stated that he had known appellant since 1998. Evans admitted that he had several prior criminal convictions and that he served as a confidential informant because he had been "targeted on some investigations."

Both Evans and Pillow identified State's Exhibit 1 as the methamphetamine that Evans received in the transaction. Finally, a chemist from the Arkansas State Crime Laboratory identified the drugs as .457 grams of methamphetamine and nicotinamide.

Appellant was convicted of delivery of methamphetamine and was sentenced to serve six years in the Arkansas Department of Correction. This appeal followed.

Appellant's sole challenge on appeal is that the State did not present substantial evidence to support his conviction. In particular, he asserts that Evans's identification of him as the person who delivered the drugs is not credible, due to the fact that Evans had a criminal history, was on parole at the time of the trial, and was "beholden to the police." Appellant notes that when he was arrested he had no contraband on him and that no evidence was presented that he had any of the buy money on him at the time he was arrested. Thus, appellant maintains that he was convicted on the sole testimony of a witness who was not credible.

Appellant did not present evidence on his own behalf at trial, but challenged the sufficiency of the State's evidence by moving for a directed verdict at the close of the State's case. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, this court reviews the evidence in a light most favorable to the State, and affirms if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Id.

Arkansas Rule of Criminal Procedure 33.1(a) requires that if a motion for a directed verdict is to be made in a jury trial, it shall be made at the close of the State's evidence and again at the close of all of the evidence. A defendant who fails to challenge the sufficiency of the evidence as prescribed by Rule 33.1(a) subsequently waives any such challenges. Ark. R. Crim. P. 33.1(c). The State argues that appellant's argument is procedurally barred because appellant did not renew his motion for a directed verdict, as required by Rule 33.1(a). However, a defendant is not required to renew a motion for a directed verdict, where, as here, he rested without presenting a case. See Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994); Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). Accordingly, appellant's argument is preserved for appellate review.

On the merits, we affirm. Appellant was found guilty of violating Arkansas Code Annotated § 5-64-401(a) (Supp. 2003), which makes it unlawful for any person to deliver a controlled substance. In turn, to "deliver" or a "delivery" means the actual or constructive, or attempted transfer from one person to another of a controlled substance in exchange for money or anything of value. Ark. Code Ann. § 5-64-101 (Repl. 1997). In his motion for a directed verdict, appellant challenged both the identification of him as the deliverer of the drugs and the evidence supporting that the drugs were exchanged for something of value. He also challenged Evans's credibility as a witness.

First, appellant is mistaken in arguing that he was convicted on the sole evidence of a witness who was not credible. Clearly, Pillow's testimony buttressed Evans's testimony. Pillow could not identify appellant as the person who delivered the drugs, but, through his binoculars, he was able to see that the man was similar in appearance to appellant. Further, Evans's unequivocal identification of appellant as the person who sold the methamphetamine to him constitutes substantial evidence to submit the evidence to the jury. Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997); Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991).

Moreover, Pillow's testimony concerning the procedure followed before and after the transaction supports Evans's testimony in the same regard, which bolsters Evans's credibility as a witness. In any event, it was the jury's duty to determine Evans's credibility and to weigh the evidence, which included Pillow's inability to identify appellant as the dealer. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002).

Finally, while appellant is correct that the State did not produce evidence that appellant possessed any of the drug buy money when he was arrested, this did not preclude the trial court from submitting the issue to the jury. The State was not required to prove that appellant possessed the buy money at the time of his arrest, but was only required to prove that appellant participated in the transfer of the methamphetamine in exchange for money or anything of value. Higgs v. State, 313 Ark. 272, 854 S.W.2d 328 (1993). Again, Evans's testimony was sufficient proof of this element of the offense to submit the issue to the jury. Affirmed.

Gladwin and Bird, JJ., agree.

1 Appellant was also equipped with an audio recorder, but no tape of the drug buy was admitted into evidence.