Adair Toston v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-185

DIVISION II

ADAIR TOSTON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR05-185

DECEMBER 7, 2005

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[CR-2003-2374-1]

HONORABLE WILLIAM A. STOREY, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

A Washington County jury convicted appellant Adair Toston of one count of delivery of a controlled substance and sentenced him as a habitual offender to fifteen years in prison. The appellant argues that the trial court erred by not allowing a recorded statement to be played that he intended to use to impeach a witness for the State, and by denying his motion for a directed verdict. We disagree on both points and affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence; therefore, we first address the sufficiency issue because the Double Jeopardy Clause precludes a second trial when a conviction is reversed for insufficient evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984) (citing Burks v. United States, 437 U.S. 1 (1978)). When reviewing a challenge to the sufficiency of the evidence we view the evidence in the light most favorable to the State; the test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture; only evidence supporting the verdict will be considered; when a challenge to sufficiency is reviewed, the

conviction will be affirmed if there is substantial evidence to support it. O'Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004); Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003).

On November 5, 2003, Fayetteville police officers set up a drug transaction between confidential informant Sherri Billings and Lurone Coakley with the intent to determine the identity of Coakley's cocaine supplier. Billings was provided with pre-marked "buy money" for the transaction with Coakley, and two police officers witnessed Coakley take the money, enter the appellant's home, and return with crack cocaine. Fayetteville police officers obtained a search warrant as a result of this drug transaction and $100 of the pre-marked buy money was found in the appellant's possession. Coakley testified at trial that prior to the drug transaction he contacted the appellant to arrange to buy crack cocaine from him, and that he subsequently arrived at the appellant's residence where he exchanged the pre-marked buy money for a quantity of cocaine.

Arkansas Code Annotated Section 5-64-401(a) (Supp. 2003) provides that it is unlawful to deliver or possess with the intent to deliver a controlled substance. Delivery of a controlled substance includes its actual, constructive, or attempted transfer in exchange for money or anything of value. See Ark. Code Ann. ยง 5-64-101(f) (Repl. 1997). We find that there is substantial evidence to support the appellant's conviction because the evidence obtained from the appellant's residence pursuant to a search warrant included pre-marked buy money, and because Coakley testified at trial that he received the controlled substance from the appellant.

The appellant's remaining point on appeal asserts that the trial court erred by not allowing him to play a digital recording that he intended to use to impeach Coakley's testimony. We review allegations of evidentiary errors under the abuse-of-discretion standard; the trial court has broad discretion in its evidentiary rulings; hence, the trial court's findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002); Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001).

Prior to the appellant's direct examination of Detective Robin Fields of the Fayetteville Police Department, he sought to play a recording from a compact disc he alleged contained aconversation in which Coakley stated he was working for the federal government and that he was being watched by the Fayetteville Police Department. The State objected on grounds of hearsay and relevancy and the trial court sustained the motion. The appellant subsequently attempted once more to introduce the recording and the trial judge asked if there was a transcript of the recording that could be reviewed with the possibility that it could then be shown to the witness. No transcript was provided by the appellant for the trial judge to review and the State's objection was again sustained.

We find that the appellant's argument on this point is procedurally barred because he made no proffer of the evidence that he sought to introduce through his direct examination of Detective Fields. To challenge a ruling of the trial court excluding evidence, the appellant must proffer the excluded evidence so that the appellate court can review the trial court's decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2); Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000); Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). The failure to proffer evidence so the appellate court can determine if prejudice resulted from its exclusion precludes review of the evidence on appeal. Leaks., supra. Ark. R. Evid. 103 states in relevant part:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Here, although the trial judge made allowance for review of a transcript of the recording for an evidentiary determination, the appellant did not provide one nor did he make a proffer of the evidence. Additionally, the actual substance of the evidence is not evident from the context of the trial proceedings.

Finding no error by the trial court, we affirm the appellant's conviction.

Affirmed.

Crabtree and Roaf, JJ., agree.