Jason Ray Kelley v. State of Arkansas

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ar03-600

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JASON RAY KELLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-600

February 4, 2004

APPEAL FROM THE ASHLEY

COUNTY CIRCUIT COURT

[CR 02-106-1]

HONORABLE SAMUEL B. POPE,

CIRCUIT JUDGE

REVERSED AND DISMISSED

John F. Stroud, Jr., Chief Judge

An Ashley County Circuit Court jury found appellant, Jason Ray Kelley, guilty of the offenses of possession of a controlled substance (methamphetamine) with intent to deliver and possession of drug paraphernalia. He was sentenced to twenty years in the Arkansas Department of Correction for the possession-of-controlled-substance conviction and to three years for the possession-of-drug-paraphernalia conviction, with the sentences to be served concurrently. On appeal, appellant argues that the trial court erred (1) in denying his motions for directed verdict due to lack of corroboration of the testimony of a co-conspirator and (2) in denying his motion in limine to preclude the State from eliciting the reason he was at the courthouse on the day he was arrested for the present charges because such information was

more prejudicial than probative. We hold that there was insufficient corroboration of the testimony of the accomplice; therefore, we reverse and dismiss appellant's convictions.

At trial, Deputy Prosecutor Frank Spain testified that on February 26, 2002, he was in circuit court and was attempting to locate appellant. Through a window, he saw a yellow El Camino stop in front of the courthouse, and he saw appellant get out and come inside. He said that he could not see what appellant was doing when he was getting out of the car, but that the door was open for "a second or two" before appellant got out, and that made him think that appellant was "doing something." He said that appellant had no further contact with the vehicle.

Spain testified that the driver of the El Camino was Rebecca Anderson, and that he was also looking for her on that day to take a drug test because she was on probation and he was going to use her as a witness in another case. Spain could see that Anderson had pulled around and parked behind the courthouse, and he asked Johnny Oliver, an Ashley County deputy, to go see if she was in the vehicle. Pursuant to Spain's request, Anderson, who was on probation for manufacture of methamphetamine, possession of methamphetamine, and possession of drug paraphernalia, was tested for drugs and failed. Spain said that a drug dog was subsequently used to search the vehicle, and after the dog alerted on the car, he testified as to what had occurred that led to the issuance of a search warrant for the vehicle.

Deputy Johnny Oliver testified that on February 26 Prosecutor Spain told him that Anderson would probably be in the vehicle, and he asked Oliver to detain her and to have her drug tested. Oliver found Anderson in the El Camino. He said that he approached the vehicle, asked her to come with him, and told her that the prosecutor wanted to have her drug tested. He said that she was very nervous and did not want to get out, and when she did get out of the

car, she did not take her purse with her. He said that Anderson told him that she could not pass a drug test.

Anderson's drug test came back positive for methamphetamine; Oliver asked her if she had any drugs on her person or in her vehicle, and she told him that she did not. He asked for consent to search the vehicle, but she refused, stating that it was not her car. Oliver requested a canine officer from Bradley County to go around the vehicle. When the dog and officer arrived, the dog alerted on the passenger-side door. Based upon that information, Oliver applied for and received a search warrant for the vehicle. The search revealed a Camel cigarette package that contained a ziploc bag containing two ziploc bags with a white powder believed to be methamphetamine and a ziploc bag containing white residue. In the bottom of the cigarette package there was another ziploc bag containing a white powder residue and a small plastic bag of white powder believed to be methamphetamine. Oliver said that there was no room for cigarettes in the package. Also recovered was a syringe containing a clear liquid substance. Both the cigarette package and the syringe of liquid were found in Anderson's purse, which was located on the floorboard of the El Camino.

Oliver also found a second syringe, this one unused, in a blue-jean jacket on the passenger side of the vehicle. He said that he remembered that the jean jacket was on the passenger's side because Anderson had another jacket. Oliver said that he later found a package of Camel cigarettes on appellant's person. However, he said that the car did not belong to appellant, that the purse did not belong to appellant, that he never saw appellant in possession of any drugs or paraphernalia, and that Anderson was the person operating the vehicle.

Oliver testified that he took Anderson's statement. He stated that she told him that she picked the drugs up out of the floorboard; that she knew what they were; that she put the drugs in her purse; and that appellant was the person who put the cigarette package containing the drugs and the loaded syringe in the floorboard when he got out of the car. Veronica Norris, a forensic drug chemist at the Arkansas State Crime Laboratory, testified that she analyzed the substances found in the cigarette package and the syringe. She said that the weight of the powder was 7.4706 grams and was 66.8 percent methamphetamine, and that the liquid in the syringe was also methamphetamine.

Rebecca Anderson, who testified that she had never been charged in this case, stated that her purpose in coming to the courthouse on February 26 was to take appellant to court. She said that she was driving her roommate's car, and that she let appellant out in front of the courthouse and then pulled to the back to wait on him. She said that two cigarette packages were sitting on the "hump," that they fell under her feet when she went around a curve, and that she just picked them up and put them in the side-front pocket of her purse. Anderson said that she did not know where they came from before she picked them up, and that she just thought that they belonged to appellant because he smoked and she did not. She thought appellant smoked Camels. She also said that she picked up the syringe; however, she later said that she could not remember if she had put the needle in her purse or not. She said that she did not see appellant put the cigarette package or the syringe in the floorboard. She testified that appellant used a needle; however, she also said that she had never seen him inject methamphetamine, but that she just knew he did. Anderson stated that she never saw any needle marks on appellant; that she never saw him use a needle; and that appellant had never told her that he used a needle. She also said that to her knowledge, appellant did not sell methamphetamine. She testified that she told Officer Culp that the syringe was not hers. She also denied knowing that the Camel cigarette package contained methamphetamine; she testified that she thought it had cigarettes in it. She denied that the methamphetamine in the cigarette package and in the syringe belonged to her. She said that her roommate did not use drugs to her knowledge, but that she had not searched the car prior to borrowing it that morning. She said that when Officer Culp asked her who put the items on the floor, she said, "Jason, I guess." However, at trial, she said that she was not sure who had put anything where. When asked again on redirect examination, Anderson said that when asked where the meth in her purse came from, she said, "I don't know where it came from originally. Jason put it in the floorboard. That's what I'm saying." She also said that the blue-jean jacket belonged to appellant.

Appellant's attorney made directed-verdict motions after the State's case and again after resting without presenting any witnesses, arguing that the State only had the testimony of an accomplice, Anderson, who testified that she did not know how the package got in the car. He further argued that even if Anderson had said that she had seen appellant with the package, there was no corroboration of her testimony. This same argument was made as to the syringe found in the jean jacket. Both motions were denied.

A person cannot be convicted of a felony on the testimony of an accomplice unless such testimony is "corroborated by other evidence tending to connect the defendant with the commission of the offense." Ark. Code Ann. § 16-89-111(e)(1)(A) (Supp. 2003). Corroboration is insufficient if it "merely shows that the offense was committed and the circumstances thereof." Ark. Code Ann. § 16-89-111(e)(1)(B) (Supp. 2003).

In order to convict appellant using accomplice testimony, the State must have presented evidence corroborating Anderson's testimony that the drugs and the drug paraphernalia belonged to appellant. In Baughman v. State, 353 Ark. 1, 7, 110 S.W.3d 740, 744 (2003) (citations omitted), our supreme court set forth the requirements for sufficient corroboration testimony:

The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction.

In Miles v. State, 76 Ark. App. 255, 64 S.W.3d 759 (2001), this court reversed and dismissed the appellant's conviction for possession of methamphetamine and drug paraphernalia on the basis that the witness linking the appellant to the contraband was an accomplice and that there was insufficient corroboration of his testimony. In that case, this court held that although the remaining evidence was sufficient to independently establish the crime, when the accomplice's testimony was taken out, the fact that the appellant was walking out of a bedroom in someone else's house at the time police arrived was not sufficient to establish that appellant had possession or joint possession of the contraband.

In this case, if Anderson's testimony is extracted, the only evidence linking appellant to the contraband found in the car is that a package of Camel cigarettes was found on his person. Outside of Anderson's testimony, nothing links appellant to the drugs found in Anderson's purse or to the unused syringe found in the jean jacket on the passenger seat of the El Camino. To have convicted appellant, the jury must have solely relied upon Anderson's testimony or resorted to speculation and conjecture that the fact appellant smoked Camel cigarettes linked him to the drugs in the Camel cigarette package and the syringe of methamphetamine found in Anderson's purse and the unused syringe in the jean jacket.

The State argues that Deputy Oliver's hearsay statements about what Anderson said to him should be sufficient corroboration; we disagree. Even though Oliver testified without objection as to what Anderson told him, it is still her testimony upon which the State relies, not any other independent evidence.

Because we reverse and dismiss on the basis that there was insufficient evidence to corroborate the accomplice testimony, it is not necessary to address appellant's other point on appeal.

Reversed and dismissed.

Hart and Gladwin, JJ., agree.