Joseph Sherman v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JOSEPH SHERMAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-364

February 16, 2005

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

[CR-01-275]

HON. JOHN N. FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

A jury convicted appellant, Joseph Sherman, of delivery of cocaine pursuant to Ark. Code Ann. § 5-64-401 (Supp. 2003) and use of a communication facility pursuant to Ark. Code Ann. § 5-64-417 (Repl. 1997). He was sentenced to ten years' imprisonment and fined $2500 for the delivery and sentenced to three years' imprisonment to be served concurrently for the use of a communication facility. He argues on appeal that the trial court erred in denying his motion to allow the jury to view the scene; allowing police officers to identify Sherman on video and audio tapes; allowing police officers to testify regarding their conversations in planning to buy drugs from Sherman; and denying his motion for directed verdict. We disagree on all points and affirm.

Officers from the Blytheville Police Department made arrangements for Carole Senter, a confidential informant, to call Sherman and purchase crack cocaine. The police taped the call and placed a video camera in Senter's automobile to capture the transaction. Although the overall quality of the video is poor, it does provide a brief glimpse of the person making the drug transaction.

Officer Hinson arranged and recorded the phone conversation between Senter and Sherman. He testified that he had known Sherman for five years, that he listened to the audio recording, and that he could identify the voice as Sherman's. Hinson also placed the video-recording device in Senter's car. Hinson testified that during the drug transaction, he was stationed where he could see the exchange through binoculars. He saw a white, family-style van approach Senter's car, but he could not see well enough to identify the person in the van. Afterwards, he viewed the videotape of the transaction and identified Sherman as the driver of the van.

Officer Wicker testified that he was also familiar with Sherman. After receiving a call from Officer Hinson that the phone call between Senter and Sherman had been placed, Wicker watched Sherman's house and followed him as he got in a white van and went to the transaction location. From a surveillance point, Wicker watched the exchange through binoculars. He stated that he could clearly see that it was Sherman driving the van.

When asked to identify on a map the area where the drug transaction took place, Officers Hinson and Wicker identified two different locations. In response, Sherman presented maps, photographs, and testimony to prove that no road existed where Officers Hinson and Wicker testified the drug transaction took place.

Officer Flora testified that he made the assignments to Officers Hinson and Wicker regarding the drug transaction. He also stated that he knew Sherman and that after listening to the audio tape and watching the video tape, he could positively identify the voice and face as Sherman. We first address Sherman's motion for directed verdict because an appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). A directed verdict motion in a criminal case must state the specific ground of the motion. See Dixon v. State, 327 Ark. 105, 108, 937 S.W.2d 642, 644 (1997). Arkansas Rule of Criminal Procedure 33.1 provides "[a] motion for directed verdict ... based on insufficiency of the evidence must specify the respect in which the evidence is deficient. ... [M]erely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements...." A party cannot change the grounds for a motion on appeal and is bound by the scope and nature of the arguments made at trial. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002).

In reviewing a challenge to the sufficiency of the evidence, we do not second-guess credibility determinations made by the fact-finder. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Instead, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. at 666, 74 S.W.3d at 594. We affirm the conviction if there is substantial evidence to support it. Hughes v. State, 74 Ark. App. 126, 46 S.W.3d 538 (2001). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, without resorting to speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991).

On appeal, Sherman argues that the trial court erred in denying his directed-verdict motion because substantial evidence does not support a conviction on either the delivery or the communication-facility charge. In the alternative, he argues that the trial court erred in denying his motion for directed verdict on the communication-facility charge because it is unfair to convict him when the police initiated the telephone call, and it violates double jeopardy to convict him of both delivery of cocaine and use of a communication facility.

At trial, Sherman's argument with regard to the delivery charge consisted of the following: "I'd move for a directed verdict on the basis that there is insufficient evidence to convict on [the delivery offense]." Because Sherman failed to make a specific motion with regard to the delivery charge, his argument is not preserved for appellate review. Alternatively, sufficient evidence was presented to substantiate a conviction on both charges considering the informant's testimony; the officer's identification of Sherman on the audio and video tapes; and Officer Wicker's testimony that Sherman left his house shortly after the call was placed, drove to the exchange spot, and drove home.

Sherman also argues that because it was the police that initiated the telephone call to him regarding the purchase of drugs, it would be unfair to convict him of an offense based on their chosen mode of communication. Sherman additionally cites Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993), and Ark. Code Ann. § 5-1-110 (Repl. 1997), for the proposition that he cannot be convicted on both the delivery charge and the communication-facility charge because the communication-facility charge was a lesser-included offense of the delivery charge. He argues that a conviction on both offenses violates double jeopardy.

Sherman provides no authority or support for his fairness argument, and under Collins v. State, we do not consider claims supported with nothing more than conclusory statements. 308 Ark. 536, 826 S.W.2d 231 (1992). Additionally, double jeopardy based on conviction of both a primary and lesser-included offense cannot be attacked in a directed-verdict motion, but can only be challenged post-conviction. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Because Sherman did not object or argue for dismissal of one of the charges after his conviction, his double-jeopardy argument was not preserved for review.1

Next we consider Sherman's argument that the trial court erred in refusing to allow the jury to view the crime scene. A request to view a place pertinent to a material fact is a matter within the trial court's discretion, and a denial of that request is not ground for reversal absent a showing of abuse of discretion. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Also, discrepancies in testimony are for the jury to resolve, and a jury is free to accept or reject all or any part of testimony it believes to be true or false. White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992).

Sherman maintains that viewing the scene would have assisted the jury in comprehending confusing and conflicting evidence. However, the trial judge considered that argument and decided that because the area had changed so much over time, viewing the scene would merely confuse the jury. The trial judge did, however, allow Sherman to present witness testimony, maps, and pictures to aid the jurors in understanding the crime scene. Under these circumstances, we cannot say the trial judge abused his discretion in denying Sherman's motion to view.

Sherman next argues the trial court erred in allowing into evidence certain testimony that constituted hearsay. Sherman provides no authority for this contention, however, which alone is reason to not consider it. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Collins, 308 Ark. at 536, 826 S.W.2d at 231. Alternatively, we do not reverse a trial court's determination as to the admissibility of hearsay absent an abuse of discretion. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). An out-of-court statement is not hearsay if it is offered to show a course of conduct or basis of action. West v. State, 82 Ark. App. 165, 120 S.W.3d 100 (2004). After reviewing the testimony, we are not convinced that the statements constituted hearsay. The challenged testimony included statements by the officers regarding their plan to call Sherman and tape the transaction, which were offered to show the officers' course of conduct. Therefore, we cannot say the trial judge abused his discretion in allowing the statements into evidence.

Sherman also argues that the trial court erred in allowing Officer Flora and Officer Hinson to identify him on the audio and video tapes because the prejudice outweighed the probative value under Arkansas Rule of Evidence 403 and because this error violated his right to confront the officers on cross examination. However, an element that must be proved in every case is that the person who stands before the court in the position of the defendant is the one whom the information accuses and to whom the evidence relates. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). Evidence may be independently relevant if it shows the identity of the perpetrator. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988). Even if the evidence is relevant, however, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Id. at 221, 748 S.W.2d at 128; Ark. R. Evid. 403. As to the requirement that the probative value not be substantially outweighed by the danger of unfair prejudice, we accord the trial judge wide discretion in balancing the conflicting interests. Carter, 295 Ark. at 218, 748 S.W.2d at 127. On appeal, we will not disturb the trial court's decision to admit or reject evidence absent an abuse of that discretion. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995).

In this case, Sherman filed a motion in limine asking the trial court to exclude all mention and introduction of evidence relating to prior criminal convictions. The motion was granted, and the State presented no such evidence. However, it is undisputed that the officers could identify Sherman's voice and identity because of their prior contact with him involving other drug charges. The court allowed three of the officers to state that they were familiar with Sherman but not to explain how they knew him. The State wanted to present additional officers to identify Sherman, but the court prohibited this on the basis that it could be prejudicial for the jury to believe Sherman was "familiar" with too many law enforcement officers. Because Sherman's identity was at issue and the trial court limited the introduction of cumulative testimony regarding his identity, we cannot say the trial court abused its discretion in allowing the identifications. Rather, the court carefully weighed how much of such testimony could be prejudicial. His identity had independent relevance, and the judge's decision to allow limited testimony by the officers as to his identification was not an abuse of discretion.

On the confrontation issue, it was Sherman's choice not to cross-examine the officers as to how they were able to identify him. He chose not to "open the door" and allow evidence of his prior criminal history. Sherman argues that this gave him no choice but to refrain from cross examining the officers on the issue of identification. However, the problem was brought upon by Sherman's motion to exclude prior criminal acts. To determine whether cross-examination restrictions infringe upon a defendant's confrontation rights, we look to the record as a whole to determine if the restrictions imposed created a substantial danger of prejudice to the appellant. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2002). Prejudice cannot be presumed, but must be demonstrated. Id. at 203, 15 S.W.3d at 682. In this case, the trial judge was careful to allow only a limited number of officers to testify regarding Sherman's identity on the tapes, so as not to prejudice the jury. In looking at the record as a whole, it cannot be said that the judge allowing the officers to testify that they were familiar with Sherman created a substantial danger of prejudice.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.

1 Even if we were to consider his double-jeopardy argument on the merits, both the United States Supreme Court and our supreme court have made it clear that the legislature determines crimes, fixes punishments, and has the authority to impose cumulative punishments for the same conduct. See Missouri v. Hunter, 459 U.S. 359 (1983); Albernaz v. United States, 450 U.S. 333 (1981); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996). In Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000), our supreme court stated that the determinative issue is whether the legislature intended for the two offenses to be separate where the same conduct violates two statutory provisions. Here, it appears clear that our legislature intended these two offenses to be punished separately because the communication-facility charge specifically refers to a person knowingly using that facility to commit the very offense of delivery of a controlled substance.