Jason J. Gulley v. State of Arkansas

Annotate this Case
ar03-083

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JASON J. GULLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-83

March 3, 2004

APPEAL FROM THE CLARK COUNTY CIRCUIT COURT

[NO. CR-2002-17]

HON. JOHN A. THOMAS,

JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Appellant Jason Gulley was convicted by a jury of two counts of delivery of a controlled substance and sentenced to thirty years' imprisonment on each conviction, to be served consecutively, and a $2,500 fine for each count. For reversal, appellant argues that the trial court erred in denying his motion for a directed verdict because the State failed to establish a chain of custody for the controlled substance. We disagree and affirm.

At trial, Arthur Wayne Warren testified that at the request of Agent Pete Dixon of the Drug Task Force, he purchased cocaine from appellant while at appellant's home on November 30, 2001, and December 12, 2001. According to Warren's testimony, he was in the presence of Agent Dixon on November 30, 2001, when he called appellant's pager number from a pay phone and put in numbers indicating "how much crack cocaine [he] wanted in dollars." Upon arrival at appellant's house on November 30, 2001, appellant got into the vehicle with him and sold him $100 worth of crack cocaine. Warren then met Agent Dixon at an agreed upon location and transferred the controlled substance to him. On December 12, 2001, Warren again paged appellant from a pay phone and received a return call from appellant. Warren testified that Agent Dixon searched him, placed the audio surveillance parts on him, and gave him $100 to purchase the illegal drugs. Warren then went to appellant's house and purchased $100 worth of crack cocaine. Immediately thereafter, Warren met Agent Dixon at the prearranged location and delivered to him the substance he had purchased from appellant.

Agent Dixon testified that on November 30, 2001, and December 12, 2001, he searched Warren and his vehicle for drugs before giving him $100 cash to purchase drugs from appellant. On both dates, Agent Dixon trailed Warren to a location near appellant's residence where he parked. After Warren completed the transactions with appellant, Agent Dixon followed him to a predetermined location where Warren delivered the substance he had purchased from appellant to Agent Dixon. At trial, Agent Dixon identified State's exhibits 1 and 2 as the substances he received from Warren on these dates.

A chemist at the Arkansas State Crime Laboratory, Feleshia Brown, testified that State's exhibits 1 and 2 were cocaine, weighing .4632 and .5939 grams respectively. She stated that exhibit 1 was submitted to the state crime laboratory and was sealed when she received it. According to her testimony, the envelope appeared to be in the same condition as when she received it. Brown further testified that exhibit 2 was the original package received by her. However, she noted that she had resealed the package in an additional envelope after the substance was tested and both envelopes had been initialed by her. Although appellant objected to exhibits 1 and 2 based on the insufficiency of the evidence to establish chain of custody, both exhibits were admitted into evidence.

At the close of the State's evidence, appellant moved for a directed verdict, stating in part that there was insufficient proof to establish the chain of custody of the cocaine. Appellant argued that Warren's testimony concerning his delivery to Agent Dixon of the cocaine he purchased from appellant, coupled with Agent Dixon's testimony that upon his receipt of the substance he sealed it in an envelope and sent it to the state crime laboratory, failed to establish that the substance handed to Agent Dixon was the same substance received by the state crime laboratory. Further, appellant asserts that Brown's testimony does not establish that she examined the substances that were delivered to Agent Dixon from Warren. The trial court denied appellant's motion. Appellant renewed his motion at the close of all evidence, and again, it was denied by the trial court.

Appellant's sole point on appeal is that there was insufficient evidence to convict him of delivery of a controlled substance because the State failed to prove the chain of custody of the controlled substance. Appellant asserts that there is neither testimony to establish the location of the substance purchased by Warren after it was delivered to Agent Dixon nor any testimony that established whether that particular substance was delivered to the state crime laboratory and tested by Brown. In its argument, the State acknowledges that there are no links demonstrating the exact method of delivery of the substance from Agent Dixon's possession to the receipt of the substance at the state crime laboratory. However, the State asserts that because the testimony demonstrates that the envelopes were sealed until Brown examined them, a proper chain of custody was established.

Because appellant's sole point on appeal is that the trial court erred in refusing to grant his motion for directed verdict, appellant's argument misinterprets our review of the sufficiency of the evidence. On review of a sufficiency of the evidence to convict, we review all evidence introduced at trial, whether correctly or erroneously admitted, in the light most favorable to the verdict. See Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996); Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Goodman v. State, 74 Ark. App. 1, 7, 45 S.W.3d 399, 402-03 (2001). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id.

Arkansas Code Annotated section 5-64-401(a)(Repl. 1997), states that "it is unlawful for any person to . . . deliver . . . a controlled substance." "`Deliver' or `delivery' means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value . . . ." Ark. Code Ann. ยง 5-64-101(f)(Repl. 1997).

Here, the evidence, including that alleged to have been erroneously admitted, demonstrates that Warren, an informant, paged appellant on November 30, 2001, and December 12, 2001; informed appellant that he wanted to purchase $100 worth of cocaine on each occasion; and met appellant at his residence where he purchased cocaine. Further, the evidence shows that Agent Dixon met Warren prior to each purchase, searched his body and vehicle, attached audio surveillance to his person, followed him to appellant's residence, and immediately met Warren after the purchase to receive the controlled substance. Moreover, Brown, a chemist for the state crime laboratory identified the substance she received from Agent Dixon as cocaine.

Viewing the evidence in a light most favorable to appellee, we hold that there was substantial evidence that appellant delivered a controlled substance in exchange for money. While it may be true that the State failed to establish how the evidence was transported from the arresting officer to the state crime laboratory, we review all of the evidence, including that which may have been erroneously admitted, in the light most favorable to the State. See Willingham, supra. Under these circumstances, we conclude that the denial of the directed-verdict motion was appropriate and affirm.1

Affirmed.

Crabtree and Roaf, JJ., agree.

1 We note that appellant does not raise his chain-of-custody argument as a separate point on appeal.