Tim Antoine Fuller v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

TIM ANTOINE FULLER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-977

SEPTEMBER 1, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2002-3394]

HON. BARRY ALAN SIMS,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Pulaski County Circuit Court convicted the appellant, Tim Antoine Fuller, of possession of cocaine with intent to deliver. The jury sentenced appellant to twenty years' imprisonment in the Arkansas Department of Correction. On appeal, appellant complains that the trial court erred (1) in allowing a detective to give opinion testimony, and (2) in allowing the powder form of cocaine to be admitted into evidence. Appellant's arguments are without merit, and we affirm.

At trial, the State presented three witnesses: Detectives Christian Sterka and Sherrie Carlton, both with the Little Rock Police Department, and Roy Adams from the State Crime Laboratory. Detective Sterka testified that on February 5, 2002, he responded to a call at 3301 West Roosevelt in Little Rock. When he arrived, he found appellant with a gunshot wound in his left buttock. An emergency-medical provider, who treated appellant at the scene, discovered a pill bottle in appellant's left sock that contained six off-white rocks of crack cocaine. Detective Sterka seized the pill bottle and its contents and accompanied appellant to the hospital.

According to Detective Carlton, she met Detective Sterka at the hospital and took possession of the pill bottle from him. Detective Carlton also testified to the street value of the drugs and gave her opinion that, based upon the amount of drugs found on appellant, he was dealing drugs rather than simply using drugs. The State's final witness was Roy Adams, a forensic-drug chemist from the State Crime Laboratory. Adams weighed the substance and then ground it for purposes of testing. He testified that the substance in question was 1.188 grams of cocaine. The State concluded its case-in-chief, and the defense presented no further testimony. The jury convicted appellant of possession of cocaine with intent to deliver and sentenced him to twenty years' imprisonment.

For appellant's first point on appeal, he maintains that the trial court abused its discretion by admitting into evidence opinion testimony that the quantity of crack cocaine found on him indicated dealing, rather than using. In furtherance of this argument, appellant challenges two cases, Marts v. State, 332 Ark. 628, 928 S.W.2d 41 (1998), and Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996), as being wrongly decided and urges that we overturn them. We reject appellant's request as he asks this court to act outside its authority. It is well settled that we are without authority to overrule a decision of the Arkansas Supreme Court. Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002). Therefore, because appellant's argument that the trial court erred requires this court to overrule Marts, supra, and Heritage, supra, the argument is barred from our consideration as we are powerless to do so.

Nonetheless, we are not persuaded by appellant's argument. Detective Carlton testified extensively about her specialized training regarding street narcotics, as well as her personal experience in the field involving undercover purchases of narcotics. Based upon this training and experience, over appellant's objection, the trial court qualified Detective Carlton as an expert witness regarding street narcotics. She testified that drug users generally only purchase one to two rocks of crack cocaine at a time, with each rock being worth about twenty dollars. However, appellant was found with six rocks of crack cocaine, weighing over one gram, with a street value of approximately $120.

Appellant argues that the trial court abused its discretion by allowing Detective Carlton to offer opinion testimony regarding indications that a person is a drug dealer versus a drug user. Appellant argued that this testimony amounted to an opinion as to "what the criminal defendant's subjective state of mind was." The decision on whether to admit relevant opinion evidence rests in the sound discretion of the trial court, and the trial court's ruling will not be reversed absent an abuse of discretion. Simpson v. State, 82 Ark. App. 76, 119 S.W.3d 83 (2003).

Contrary to appellant's assertion, Detective Carlton did not attempt to opine regarding appellant's subjective intent. She merely offered testimony, based on training and professional experience, that a typical user would buy only one or two rocks of crack cocaine at a time. Arkansas Rule of Evidence 704 (2003) provides, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier or fact." Even if Detective Carlton's testimony spoke to the ultimate issue to be decided by the trier of fact, it did not violate Rule 704 and tell the jury which result to reach. Her testimony about "norms" in street narcotics for users and dealers, based on her training and experience, was not a legal conclusion for the jury. See Marts, supra (affirming the trial court's decision to allow testimony from two officers that quantity and quality of the substance indicated trafficking of narcotics). Just as in Marts, supra, her testimony that the facts of this case indicated that appellant was dealing drugs, not just using, was permissible. Thus, the trial court did not abuse its discretion in allowing the testimony.

In any event, there was overwhelming evidence of appellant's intent to deliver. Arkansas Code Annotated section 5-64-401(d) (Supp. 2003) creates a rebuttable presumption that the possession of more than one gram of cocaine demonstrates intent to deliver. Here, appellant possessed 1.188 grams of cocaine. The presumption amounts to substantial evidence of intent to deliver. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Subsection (d) provides that this presumption may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver. However, appellant presented no evidence to rebut the statutory presumption. For the jury to find on the evidence presented that appellant did not intend to deliver the cocaine found on him, it would have had to disregard the statutory presumption. See Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992). As such, we find no reversible error.

For appellant's second point on appeal, he contends that the trial court abused its discretion by admitting the cocaine into evidence. At trial, Detective Sterka testified that he responded to a shooting at a hotel where he found appellant lying on the floor with a gunshot wound to his left buttock. An ambulance was called to the scene, and emergency personnel came into the room to treat him. While removing appellant's pants, a MEMS employee discovered a pill bottle in appellant's sock containing six off-white colored rocks of what appeared to be crack cocaine. The bottle and its contents were immediately given to Detective Sterka. Soon thereafter, Detective Sterka gave the bottle and its contents to Narcotics Detective Carlton. Detective Carlton testified about how she sealed the items in an envelope, stored it in the property room at the police department, assigned it a property-tag number, and filled out an evidence-submission sheet. Then, a property officer took the evidence to the crime laboratory for analysis and later retrieved it prior to trial.

Roy Adams, forensic drug chemist for the Arkansas State Crime Laboratory, testified that he obtained the sealed envelope and its contents from a secured storage area, the evidence receiving station, at the laboratory. He inventoried the contents as "one brown plastic bottle containing one plastic bag containing several off-white, rock-like substances." However, Adams admitted that, at the time of trial, the cocaine substance was no longer in its original rock-like form. Adams explained, "[A]fter I weighed the rock-like substances, I ground them up for analysis because I wanted my sample to be uniform throughout." Adams testified that he recognized the envelope because he had marked on both sides the laboratory case number, the item number, the date, and had initialed the envelope to show that he had opened and analyzed the substance.

Appellant claims that there is an insufficient chain of custody because of the difference in appearance of the substance between what was seized, a rock-like substance, and what was brought to trial, a powder substance. Yet, he fails to specifically allege where the chain of custody was breached. Moreover, appellant acknowledges that the chemist ground the rock-like substance into a powder for testing. We will not reverse a ruling regarding the admission of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. Hawkins v. State, 81 Ark. App. 479, 105 S.W.3d 397 (2003).

In this case, there was no clear break in the chain of custody or other conclusive proof that any tampering transpired, which is what the chain-of-custody requirement seeks to eliminate. See Hawkins, supra. The testimony presented at trial sufficiently establishes the chain of custody for the substance. Furthermore, the change in appearance from rocks to powder was explained by the chemist. It is only necessary that the trial court be satisfied that the evidence was not tampered with by anyone. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). Here, there is no evidence that someone tampered with the substance. Therefore, the State presented a sufficient chain of custody, and the trial court did not abuse its discretion in admitting the substance into evidence.

In addition, appellant maintains that, "The jury might have reached a different verdict had the drugs been presented in rock form." This argument fails because appellant did not show that he suffered any actual prejudice as a result. A trial court's ruling on the admission of evidence will not be reversed absent a showing of prejudice, because appellate courts do not reverse for harmless error. See Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001). Moreover, appellant does not cite to authority or present a convincing legal argument to support his speculation that the form of the cocaine had any effect on the jury. Appellate courts do not consider an argument, even a constitutional one, when an appellant presents no citation to authority or convincing argument in its support and it is not apparent without further research that the argument is well taken. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996). Yet, even if we considered appellant's second argument, we could find no reversible error.

Affirmed.

Stroud, C.J., and Neal, J., agree.