Henry Frank Eason, Jr. v. State of Arkansas

ar03-150

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR03-150

January 28, 2004

HENRY FRANK EASON JR.

APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

NO. CR 2002-2019

V.

HONORABLE JOHN LANGSTON,

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

Frank Eason, Jr. was convicted in a bench trial of possession of cocaine with intent to deliver, and sentenced to 120 months' imprisonment in the Arkansas Department of Correction. The trial court also ordered Eason to undergo drug treatment and suspended his driver's license for six months. For his sole point on appeal, Eason argues that the trial court erroneously admitted State's exhibit two, a bag of cocaine, because the State failed to properly authenticate the exhibit. We affirm.

The following facts were presented at trial. On April 18, 2002, undercover narcotics agent, Deputy Brian Simons, arranged to purchase four eight balls of cocaine1 from Eason. Simons and an informant made several calls to arrange the transaction, which was held at a McDonald's parking lot located at I-30 and Broadway. Simons and the informant arrived at McDonald's at approximately 4:15 p.m. After waiting fifteen minutes, a maroon Buick entered the parking lot and parked next to Simons's vehicle. Eason was the passenger. Simons exited his vehicle and approached him. Eason explained that he only had one eight ball, but that the other three were waiting at the Dodge Store on Broadway. He stated that once Simons paid him for the cocaine, he would then deliver the other drugs. Simons asked how much the one eight ball would cost, and Eason replied $175. Simons then asked to see the product and was handed a baggie containing, what he described as, "approximately three grams of suspected crack cocaine." Simons told Eason that he needed to return to his car to get his money together. After returning the drugs, he went back to his car. An arrest team overheard the entire transaction through an electronic monitoring device and observed Simons remove his hat, which was a signal that he had seen and touched the controlled substance. The arrest team moved in, and Eason was placed under arrest.

After arresting Eason, Simons confiscated the cocaine and "marked th[e] eight ball or approximately three grams of cocaine as E-1," which was in a plastic baggie. Simons took the cocaine back to the narcotics office, placed it in a sealed envelope, labeled it for submission to the crime lab, and submitted it to the State Crime Lab, along with a submission record sheet. Although Simons did not weigh the cocaine, the submission record sheet indicated that the cocaine weighed approximately three and one quarter grams. Simons admitted that he did not weigh the substance and that his weight was an approximation based on his experience as a law enforcement officer and his knowledge that an eight ball is approximately three grams of cocaine. The actual weighing of the substance, Simons explained, does not occur until the crime lab chemist weighs the narcotics during testing. Other than the time the cocaine was being tested at the State Crime Lab, Simons had sole custody of the cocaine, which he brought with him to the trial. He stated that the evidence remains sealed until the chemist breaks the seal in order to conduct testing. During his testimony, Simons confirmed that the evidence presented at trial was in the same or similar condition as it was on April 18, when he removed it from Eason. His name and DSN number also appeared on the packaging. Additionally, the crime lab report had a State Crime Lab number-2002-LIT-09334, which is the same number found in his police report. The incident number, Simons said, is 2002-10224.

Roy V. Adams, a forensic chemist at the State Crime Lab, tested the evidence labeled State Crime Lab No. 02-LIT-09334. Adams said the substance was labeled E-1 and described it as an off-white rock-like substance weighing 2.397 grams. Adams's test confirmed that the substance contained cocaine base. During his testimony, Adams was given an envelope, which he testified he recognized as the envelope that held the evidence. It bore the case number, item number, date, and Adams's initials on both sides. Adams read the numbers in open court, including case number 02-09334 and item number E-1. Adams stated that evidence presented in court was in the same or substantially similar condition as when he analyzed it. He did note that he received an off-white rock-like substance, but ground it to test a representative sample.

During Adams's testimony, the State moved to introduce State's exhibit two, marked E-1, 2002-09334, into evidence. Defense counsel objected to the exhibit's admission, arguing that there were inconsistencies in the testimony regarding the weight of the evidence. Specifically, the defense pointed to Simon's testimony that the evidence weighed 3.25 grams, and Adams's testimony that the evidence weighed 2.397 grams. Counsel argued that there was a significant discrepancy between the two weights, and therefore, exhibit two should not be admitted. The State responded that Simon's testimony indicated that the 3.25 gram figure was just an approximation; that there was no testimony that the 3.25 gram figure was an exact measurement; that Simons was the sole custodian of the contraband, delivering the product to the crime lab, retrieving it once it was tested, and bringing it to court; and that the chain of custody had been followed. The court overruled the objection; the State rested, and the defense moved for dismissal. The motion was denied, at which time the defense rested without presentation of evidence, renewing its motion for dismissal. The motion was again denied, and Eason was found guilty. From that conviction, Eason brings this appeal, challenging only the admission of the State's exhibit for lack of authenticity based on the weight discrepancy.

The purpose of establishing chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Id. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id. However, proof of the chain of custody for interchangeable items like drugs needs to be more conclusive. Id. This court will not reverse a trial court's ruling on the admissibility of evidence absent a showing that it clearly abused its discretion. Jones v. State, 82 Ark. App. 229, 105 S.W.3d 835 (2003).

In Crisco, supra, the appellate court noted that there was no obvious break in the chain of custody or conclusive proof that any tampering occurred, but reversed the lower court's admission of methamphetamine because of a marked difference in the description of the evidence. In Crisco, supra, the arresting officer described the substance as "One Bag of Off White Powder Substance." Id. at 389, 943 S.W.2d at 583. The chemist, on the other hand, described the substance as, "One (1) triangular piece of plastic containing a tan rock-like substance (0.310 gram)." Id. The court concluded that such a marked difference in descriptions supported a significant possibility that the evidence tested was not the same as that purchased by the officer. This possibility, the court stated, "is especially so when we consider that the drug involved is a readily interchangeable substance." Id. at 393, 943 S.W.2d at 585. "Under these circumstances, where the substance at issue has been described differently by the undercover officer and the chemist, [ ] the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance." Id.

In a more recent case, this court dealt with an issue similar to the issue in Crisco, supra. In Jones v. State, 82 Ark. App. 229, 105 S.W.3d 835 (2003), the appellant challenged the admissibility of marijuana. During a vehicle stop, police officers discovered two duffle bags containing eight bundles of marijuana, four rolled marijuana joints, and personal items, including toiletry items, towels, shorts, underwear, and a shirt. The officers seized the contraband and placed it in a cardboard box to weigh it during the inventory process. The approximate weight of all of the items was fifty-nine pounds. The box was sealed, initialed, and stored until taken to the state crime lab.

The forensic chemist for the crime lab testified that he retrieved the sealed box from the secured storage; that the box was sealed; and that he removed the marijuana from its original packaging, weighing only the marijuana. The total weight was 42.7 pounds.

The appellant argued that his case was governed by the holding in Crisco, supra, and that the discrepancy in weight of the evidence prohibited the introduction of the marijuana in his case. This court noted that the discrepancy between the weights given by the officer and chemist was considerable. However, the court noted that Crisco, supra, involved a discrepancy in description, not weight. Notwithstanding that difference, the court acknowledged that the general principle espoused in Crisco, supra was relevant, "namely that the State had to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance." Id. at 236, 105 S.W.3d at 839. However, the court concluded that the State "did do more," when it introduced testimony explaining the different weighing procedures used by the officers and the crime lab chemist. Id. at 235, 105 S.W.3d at 839. The court particularly noted that the officers weighed not only the marijuana, but also the duffle bags and all of their contents. This court held that the trial court did not abuse its discretion where there was some explanation in the record for the difference in weight, and no evidence of any actual tampering.

Although Eason relies on Crisco, supra, this case is most analogous to Jones, supra. Much like the Jones facts, this case does not involve a discrepancy in description, but involves weights. As in Jones, there is a discrepancy in the trial testimony as it relates to the weight of the cocaine seized from Eason. However, just as the Jones court noted, the general holding in Crisco is still applicable. That is, where there is a significant discrepancy in the testimony, the State must do more than merely trace the route of the envelope containing the contraband. Jones, supra. Thus, the inquiry becomes whether the State "did more" in light of the discrepancy in the testimony regarding the weight. We think the answer is yes.

Before discussing the applicability of Jones, supra, we first note that Eason and the State take contrary positions regarding the significance of the discrepancy in the testimony relating to the cocaine's weight, with the State asserting that the discrepancy between Simons's and Adams's testimony is "minor" and pointing this court to the holding in Guydon v. State, 344Ark.251, 39 S.W.3d 767 (2001).2 In contrast, Eason contends that the discrepancy is "comparatively large," and seeks to distinguish his case from Guydon, supra.3 Because a satisfactory explanation was given at Eason's trial, whereas there was no explanation provided for the weight discrepancy in Guydon, supra, neither the magnitude of the discrepancy, nor Guydon, supra, is pertinent to the resolution of the issue in this case.

As in Jones, supra, the trial court heard testimony explaining the discrepancy in weight. Simons did not weigh the cocaine, but made an approximation based on his experience as a law enforcement officer and his knowledge that an eight ball is approximately three grams of cocaine. He further testified that the substance is not weighed until the forensic chemist at the state crime lab tests it. Bearing in mind that the officer did provide an explanation, it cannot be said that the trial court abused its discretion when it admitted State's exhibit number two into evidence.

Also bearing in mind that the State does not have to explain every uncertainty, the trial court merely had to be satisfied within a reasonable probability that no one had tampered with the evidence. In the instant case, the State sufficiently traced the route of the envelope containing the cocaine, showing that Simons was the only person with possession of the contraband, taking it to and from the State Crime Lab, bringing it to court, and identifying the case number (2002-LIT-09334), the item number (E-1), and his initials. The State also showed that Adams received that same substance, was able to identify the case (O2-9334) and item (E-1) numbers, and recognized the substance as the one he tested. Thus, we cannot say that trial court abused its discretion; consequently, we affirm Eason's conviction.

Affirmed.

Robbins and Baker, JJ., agree.

1 Deputy Simons explained that an eight ball was a street term for one-eighth of an ounce of cocaine and is generally three grams of cocaine.

2 Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001) (holding that the trial court did not abuse its discretion by admitting two exhibits (cocaine) where the officer testified that the exhibits weighed 0.3 and 0.2 and the chemist testified that the exhibits weighed 0.1828 and 0.1183; concluding that the State established within reasonable probability that the evidence had not been tampered with and the minor discrepancies in weight were insignificant, noting that "minor uncertainties are matters to be argued by counsel and weighed by the jury.")

3 The actual difference equals 0.983 grams in Eason's case.