Bobby S. Morgan v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

BOBBY S. MORGAN

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-587

MAY 26, 2004

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[CR02-1797-1]

HONORABLE WILLIAM A STOREY, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

A Washington County jury convicted appellant, Bobby S. Morgan, of three counts of delivering cocaine, on or about February 8, 2002, February 11, 2002, and March 11, 2002. The jury recommended a sentence of ten years' imprisonment on each count, and the trial court imposed a sentence of twenty years' incarceration in the Arkansas Department of Correction with imposition of an additional suspended sentence of ten years. On appeal, appellant asserts two points of error: (1) that the trial court erred in overruling appellant's objection to five state crime laboratory reports on the basis that the cocaine itself was not introduced into evidence, and there was insufficient proof of chain of custody of the missing evidence; and (2) that the trial court erred in denying appellant's motions for directed verdict based on the matters raised in point 1, and further based on the insufficient proof of any delivery of cocaine or acceptance of money on the part of appellant. We find no error and affirm.

We address sufficiency-of-the-evidence questions first because if the judgment of conviction is not supported by substantial evidence, an appellant may not be tried again under the principle of

double jeopardy. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). Appellant's argument that the evidence was insufficient because some of it should have not have been admitted into evidence is based upon a mistaken premise. We do not consider trial errors until after we have considered arguments regarding the sufficiency of the evidence, including that which perhaps should not have been admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Therefore, in determining the sufficiency of the evidence, we consider the evidence that appellant complains should not have been admitted.

Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Harris v. State, 73 Ark. App. 185, 44 S.W.3d 347 (2001). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it when viewed in the light most favorable to the State. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Substantial evidence, whether direct or circumstantial, is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another, without resort to speculation or conjecture. Id. Circumstantial evidence alone may constitute substantial evidence to support a conviction. Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). When circumstantial evidence alone is relied upon to support a conviction, it must indicate the accused's guilt and exclude every other reasonable hypothesis. Id. It is only when circumstantial evidence leaves the finder of fact solely to speculation and conjecture that it is insufficient as a matter of law. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991). Furthermore, it is for the jury alone to resolve questions of conflicting testimony and inconsistent evidence, and it may choose to believe the State's account of the facts rather than the defendant's. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 547 (2002).

Appellant was charged with five counts of delivering a controlled substance, cocaine, to Michael Buchanan, a confidential informant working with Sergeant McKee and other officers of the 4th Judicial Drug Task Force in Fayetteville. A jury convicted appellant of three of the five counts. Each of the three transactions occurred in a similar manner. Buchanan contacted appellant regarding the purchase of drugs and set a meeting. Buchanan notified the Drug Task Force of the meeting and met the officers near the Fayetteville Public Library near appellant's residence. Officer McKee then searched Buchanan's person and vehicle to ensure that he had no contraband on him. Buchanan was then fitted with a transmitter and given money with which to purchase drugs.

Once the preparations were conducted, Buchanan, while under visual and audio surveillance, drove to appellant's residence. There, appellant entered Buchanan's car, and the two drove to a business called Just Like New Detail Shop, where appellant went inside and returned shortly with cocaine. After the exchange and still under surveillance, Buchanan drove appellant to appellant's residence, dropped him off, and then met again with Drug Task Force officers.

When Buchanan met with the officers, he delivered to them the drugs he had just received from appellant. According to McKee, the drugs were secured, taken straight back to the Drug Task Force office, field-tested, assigned an identification number, packaged, locked up pending transfer to the State Crime Laboratory for analysis, and sent to the laboratory for analysis. At the laboratory, the drugs were delivered to the forensic chemist, Kim Brown, in a sealed condition, tested, repackaged, and returned to the Drug Task Force where Officer McKee received the drugs and analysis. The reports were made by Kim Brown who attested that each is "a true and accurate report of the results of analysis performed by me of evidence received in a sealed condition at the Arkansas State Crime Laboratory." Ms. Brown signed each report, and her signatures were notarized. These reports were admitted into evidence at trial.

Appellant also asserts that the search of the confidential informant was not complete because his shoes were not searched by the officers in preparing for the controlled buy. He concludes, therefore, that there is insufficient evidence to affirm his convictions. However, the informant testified that there was no contraband in his shoes. It is for the jury alone to resolve questions of conflicting testimony and inconsistent evidence, and it may choose to believe the State's account of the facts rather than the defendant's. Alexander, supra.

Given the evidence set out above, sufficient evidence supports appellant's conviction. We next address appellant's argument that the trial court erred in overruling appellant's objection to five state crime laboratory reports on the basis that the cocaine itself was not introduced into evidence, and there was insufficient proof of chain of custody of the missing evidence.

Appellant asserts that the chain of custody fails emphasizing that the chemist at the crime laboratory identified the substances to be tested as being inside plastic baggies and the informant described them as not being inside plastic baggies. He urges us to that find Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997), requires reversal. In Crisco, the State did not establish a chain of custody of methamphetamine allegedly taken from defendant, even though there was testimony tracing the envelope in which the arresting officer allegedly placed the substance claimed to be methamphetamine from the local police to the state crime laboratory and back to local police. The court in Crisco explained that testimony was also required that the substance tested was the same as the substance taken from the accused when a police officer had described the substance as an "off-white" powder, and the state chemist testified he tested a "tan rock-like substance" and stated he would not have described the substance as "off-white."

We find no merit to appellant's argument that a chain of custody failed requiring exclusion of the State Crime Laboratory for analysis. This case is distinguishable from Crisco because the testimony differs only as to the containers, or lack thereof, described by the informant and the chemist, not the actual substance alleged to be contraband. Furthermore, Sergeant McKee testified that he placed the cocaine in heat-sealed bags and marked them for delivery to the crime lab. The purpose of establishing a chain of custody is to prevent the introduction of physical evidence that has been tampered with or is not authentic. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). The trial court must be satisfied within reasonable probability that evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Crisco, supra. Appellant complains that there is no direct evidence identifying the process by which the contraband was transported to and from the crime lab. While minor uncertainties in proof of chain of custody are matters to be argued by counsel and weighed by the jury, they do not render evidence inadmissible as a matter of law. Id.

Under these facts, the chain of custody was properly established to ensure that the substance tested was in fact the substance seized. In this case, the reports analyzing the substances were introduced, and the reports were properly attested as required by statute. See Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994).

Rulings on the admissibility of evidence are matters within the sound discretion of the trial court and are not disturbed on appeal absent a manifest abuse of that discretion and prejudice. Rankin v. State, supra. When a chemical analysis report contains an attestation by the chemist who purports to have performed the test, certifying that he or she personally performed the laboratory test and prepared the laboratory analysis report, the statement satisfies the statutory requirement of Arkansas Code Annotated section 12-12-313. Id.; see also Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992).

Accordingly, we find no error and affirm.

Hart and Vaught, JJ., agree.