Leroy Harvey Stevenson v. State of Arkansas

Annotate this Case
ar04-527

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CACR04-527

DIVISION II

MARCH 9, 2005

LEROY HARVEY STEVENSON AN APPEAL FROM THE CRAIGHEAD

APPELLANT COUNTY CIRCUIT COURT [CR2003-1076]

V.

STATE OF ARKANSAS HONORABLE WILLIAM L. FERGUS,

APPELLEE JUDGE

AFFIRMED

Olly Neal, Judge

The Craighead Circuit Court convicted appellant Leroy Stevenson of delivering cocaine and possessing cocaine. The court sentenced appellant to ten years' imprisonment on the delivery charge and ten years' suspended on the possession charge. This appeal followed. On appeal, appellant argues that the trial court erred when it refused to grant (1) his motion to sever the charges and (2) his motion for directed verdict based on the fact that (a) the officers who testified at trial did not prove that the rock of cocaine sold to them was actually cocaine and (b) there was no testimony proving that there was a usable amount of cocaine in the September arrest. We affirm.

For double jeopardy reasons we address appellant's challenge to the sufficiency of the evidence claims first. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Ewings v. State, ___ Ark. App. ___, ___ S.W.2d ___ (Mar. 24, 2004). When reviewing a denial of a directed verdict, we look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. Id. We will affirm if there is substantial evidence to support a verdict. Id. The determination on matters of credibility of the witnesses and conflicting testimony is left to the trier of fact; further, the uncorroborated testimony of one State's witness is sufficient to sustain a conviction. Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996).

The facts of this care are as follows. At trial, Officer Chris Lane of the Jonesboro Police Department testified that he and Officer John McGee worked undercover on May 28, 2003, and purchased a twenty-dollar amount of cocaine from appellant. Thereafter, appellant retreated into a home at 506 North Church. Officer John McGee testified that he participated in the undercover buy of narcotics from 506 North Church. He identified appellant as the person from whom he and Officer Lane purchased narcotics. The officers submitted the substance to the State Crime Lab for testing. The report indicated that the substance had a cocaine base and weighed 0.2264 grams.

On July 25, 2003, Officer Lane caused an arrest warrant to be issued. The police served the warrant on September 8, 2004, at 506 North Church, and arrested appellant. Officer Tommy Crawford testified that he observed appellant in the passenger seat of a car near 506 North Church when Crawford made contact with appellant as he stepped out of the car. As Officer Crawford went to handcuff appellant, he observed that, when appellant opened his clinched hand, an object that appeared to be crack cocaine fell to the ground. Crawford seized the contraband. The State Crime Lab report indicated that this contraband had a cocaine base and weighed 0.2364 grams.

In his first challenge to the sufficiency of the evidence, appellant merely asserts that the officers who testified at trial did not prove that "the rock of cocaine sold to them was actually cocaine." He "feels that the officers planted the evidence and that there was no evidence to support that the substance that he gave the officers was actually a rock of cocaine even though the officers testified that they received the cocaine and the lab report came back confirming that the substance that they turned in was in fact cocaine." We do not reach the merits of appellant's argument because, as we have often stated, we will not consider an argument where the appellant presents no citation to authority or makes no convincing argument in support of his allegation of error, and it is not apparent without further research that the argument is well-taken. Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997).

Appellant further argues that the trial court failed in directing a verdict because there was no testimony proving that there was a usable amount of cocaine in the September arrest. Appellant relies on Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), to support his proposition. However, in Jones v. State, ___ Ark. ___, ___ , ___ S.W.3d ___, ___ (May 27, 2004), our supreme court, citing to Harbison v. State, supra, stated as follows:

There is no provision in our Controlled Substances Act, codified at Ark. Code Ann. § 5-64-101 et seq., mandating that one must possess a usable amount of methamephetamine to support a conviction for possession. Nevertheless, we adopted a usable-amount criteria in Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990). Appellant relies on Harbison for the proposition that the quantity he possessed was too small to constitute a "useable [sic] amount." Id. The appellant in Harbison was found in possession of a bottle containing only cocaine dust or residue. A chemist testified that he found the substance inside two plastic drinking straws as being a trace amount of cocaine residue that was too small to weigh with the equipment at the state crime laboratory. We held that appellant could not be convicted of possession of cocaine. Id.

The present case, however, is distinguishable from Harbison, supra, because here there was a usable amount of methamphetamine. Unlike the circumstances in Harbison, supra, there was enough substance in the plastic bags to weigh and to test. Cindy Moran, a chemist at the Arkansas State Crime Laboratory, testified that during her drug analysis, one plastic bag contained .2472 grams of methamphetamine and nicotinamide, and the other four plastic bags contained .6367 grams of methamphetamine and nicotinamide. Thus, appellant possessed a total of 0.8839 grams, or 883.9 milligrams, of a methamphetamine-nicotinamide compound. When asked on cross-examination whether there was a usable amount, Ms. Moran testified, "Well, we always say that if we can identify it, we can test it and we can get results,then, in our minds, yes, there was some [usable amount] there." Based upon the uncontroverted expert testimony of Ms. Moran, we conclude that the 883.9 milligrams constitutes a usable amount under Harbison, supra.

We have previously decided in Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994), that, under Ark. Code Ann. § 5-64-401(a)(1)(i), the "measurable amount of the methamphetamine for the purpose of inferring intent includes the amount of the pure drug plus all adulterants." Id. We proceeded in that unanimous decision to hold that "the fact that Mr. Piercefield possessed more than 200 milligrams of a stimulant drug [methamphetamine]," id., was sufficient to meet the test of sufficiency of the evidence. See also Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990) (stating that a vial containing 100 milligrams of methamphetamine seized from appellant's person would support a conviction for possession of a controlled substance even in light of a Harbison challenge).

In the case before us, appellant possessed 883.9 milligrams of the methamphetamine compound, an amount that greatly exceeds the 200 milligrams of a methamphetamine compound that we found sufficient in Piercefield, supra. Therefore, we hold that the trial court did not err in denying appellant's motion for directed verdict on the methamphetamine-possession charge.

In the instant case, the State Crime Lab report from appellant's September arrest indicated that the substance tested contained 0.2364 grams (230 milligrams) of cocaine base. As 100 and 200 milligrams alike have been held to be sufficient by our supreme court to sustain convictions for possession, the 230 milligrams in this instance are also sufficient. See Piercefield v. State, supra; Moore v. State, supra. Although this report was not found in either the abstract or addendum, we can nevertheless go to the record to affirm. See Dansby v. State, 347 Ark. 509, 65 S.W.3d 448 (2002). Hence, because appellant possessed a substance containing 230 milligrams of cocaine base, there was sufficient evidence to find him in possession; therefore, we affirm on this point.

Appellant's final argument is that the trial court erred in denying his motion to sever. The decision to sever offenses is discretionary with the trial court. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003). The appellate court will affirm a trial court's denial of a motion to sever if the offenses at issue were part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Id. The State properly concludes that appellant's argument is not preserved for our review.

To preserve for appeal a trial court's denial of a motion to sever, the defendant may, under Ark. R. Crim. P. 22.1(b), renew the motion on the same grounds before or at the close of all the evidence. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445(2000). Severance is waived by the failure to renew the motion, see Ark. R. Crim. P. 22.1(b), and general renewals of motions that do not make clear to the court the grounds relied upon have been held insufficient to preserve the issue for appeal. See Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996). At the close of the evidence, appellant made the following motion, "Defense rests and renews motions for directed verdicts." We hold that appellant waived his challenge to the trial court's denial of his severance motion because he failed to renew the motion before or at the close of the evidence, as is required under Arkansas R. Crim. P. 22.1(b).

Affirmed.

Hart and Glover, JJ., agree.