Robert W. Franklin v. State of Arkansas
Annotate this Case
Download PDF
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II
CACR05925
MARCH 15, 2006
ROBERT W. FRANKLIN
APPELLANT
V.
APPEAL FROM THE LOGAN COUNTY
CIRCUIT COURT, SOUTHERN
DISTRICT,
[NO. CR2003110],
HON. PAUL E. DANIELSON, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
SAM BIRD, Judge
Appellant Robert W. Franklin was convicted by a jury of possession of
methamphetamine with intent to deliver, possession of drug paraphernalia, and use of a
communication facility. He was sentenced to a total of thirty years’ imprisonment, including
a tenyear sentence enhancement under Ark. Code Ann. § 564411 with respect to his
conviction for possession of methamphetamine with intent to deliver. On appeal, Franklin
argues (1) that the trial court erred when it allowed the State to introduce testimony
concerning controlled drug buys within his home, and (2) that the evidence was insufficient
for the jury to find that Franklin possessed methamphetamine with the intent to deliver. We
affirm.
At trial, Officer Larry Garner testified that he was involved in the execution of a
search warrant at Franklin’s residence on November 28, 2003. Garner said that the residence
had been under surveillance and that police found the following items during the search of
the residence: a mirror with a white line of powder substance that appeared to be
methamphetamine; a square box containing baggies with a white substance and small empty
bags; a Ziploc bag containing “corner bags”; round tubes, baggies, and items of drug
paraphernalia used to crush the powder substance; a set of digital scales; a “PVC cylinder
taped on both ends”; two smoking devices with burned residue; two Ziploc baggies with a
white powder residue left inside each bag; a nightvision scope; and $172 in U.S. currency.
Garner also said that, among the $172, there were two fivedollar bills that he had
“photographed two or three days earlier” and that had been used to buy drugs.
Garner explained that he had conducted a “controlled buy” at Franklin’s residence
with the photographed money. He said that he searched the confidential informant, observed
the informant going “to and from the residence,” and recovered drugs from him. He also said
that he used the photographed bills in the buy and that the serial numbers on the bills
matched those recovered during the search of Franklin’s residence. Garner said that he had
worked “between 150 and 200” drug cases and that he had conducted “probably 200 or 300
controlled buys.”
Steve Reid of the Booneville Police Department testified that he also participated in
the execution of the search warrant at Franklin’s residence. He said that he “helped secure
the residence and Mr. Franklin” and that he asked Franklin’s wife, Doris Franklin, to “empty
her pockets.” According to Reid, Mrs. Franklin’s pockets contained $172 in cash and two
small packages of a “white powder substance,” which tested positive for methamphetamine.
Reid also said that police found “four [or] five cameras … outside the house.” He explained
that “the significance of the surveillance equipment would be [that] you could see who is
coming and going from your residence while you’re not at home” and that it could be “used
to protect especially from law enforcement.” Reid stated that Franklin’s residence was
located approximately seven hundred thirtynine feet from a church.
2
CACR05925
Cindy Moran, a forensic chemist at the Arkansas State Crime Laboratory, also
testified for the State. She said that she had analyzed suspected controlled substances in over
four thousand cases and that the substances seized from Franklin’s residence tested positive
for “methamphetamine hydrochloride, nicotinamide” with a total weight of 6.6613 grams.
After the close of the State’s case, Franklin’s counsel moved for a directed verdict,
stating in part as follows:
At this time the Defense moves for a directed verdict of acquittal on possession
of [methamphetamine with] intent to deliver. Looks to me like the evidence is
indicative of possession with intent to use. And the jury would have to be guessing
as to the evidence on intent to distribute or [deliver]. … So also just for purposes of
protecting ourselves we move for a directed verdict on what is in essence a sentencing
question on the house being within a thousand feet of the Assembly of God Church.
The trial court denied the motions. Franklin’s counsel renewed the motions at the close of
all of the evidence, and the court again denied them.
While Franklin raises it as his second point on appeal, preservation of Franklin’s
freedom from double jeopardy requires us to examine his sufficiency of the evidence
argument before addressing trial errors. Nelson v. State, ___ Ark. ___, ___S.W.3d ___ (Feb.
16, 2006). A motion for a directed verdict is a challenge to the sufficiency of the evidence.
Id. When a defendant makes a challenge to sufficiency of the evidence on appeal, the
appellate court views the evidence in the light most favorable to the State. Id. 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. Id. Only evidence
supporting the verdict will be considered, and the conviction will be affirmed if there is
substantial evidence to support it. Id.
Arkansas Code Annotated section 564401(a) (Supp. 2003) provides that, with
certain exceptions, it is unlawful to manufacture, deliver, or possess with intent to
3
CACR05925
manufacture or deliver a controlled substance. In this case, Franklin claims that the evidence
was insufficient to support his conviction for possession of methamphetamine with intent to
deliver because “the testimony of Larry Garner and Steve Reid showed that the drug
paraphernalia found in Franklin’s home was consistent with possession with intent to use,
not intent to deliver.” However, police seized 6.6613 grams of methamphetamine from
Franklin’s residence while Franklin was there. This is more than thirty times the presumptive
amount for possession of methamphetamine with intent to deliver. See Rabb v. State, 72 Ark.
App. 396, 39 S.W.3d 11 (2001) (stating that, under Ark. Code Ann. § 564401(d),
possession of more than two hundred milligrams of methamphetamine gives rise to a
presumption of intent to deliver). Furthermore, the serial numbers on the photographed bills
used in the controlled buy matched those on the bills recovered during the search of
Franklin’s residence. Viewing the evidence in the light most favorable to the State, as we are
required to do, we find that substantial evidence supports Franklin’s conviction for
possession of methamphetamine with intent to deliver. Although Franklin additionally claims
that the majority of the methamphetamine was recovered from his wife and was “not tied”
to him, he failed to raise this argument in his directedverdict motion below and is therefore
precluded from raising it on appeal. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315
(2003) (recognizing that an appellant is bound by the scope and nature of the arguments
made at trial).
Franklin also contends that the trial court erred by allowing testimony concerning a
controlled drug buy within his home before police executed the search warrant there. We
review allegations of evidentiary errors under the abuseofdiscretion standard. Threadgill
v. State, 347 Ark. 986, 69 S.W.3d 423 (2002). The trial court has broad discretion in its
4
CACR05925
evidentiary rulings; hence, the trial court’s findings will not be disturbed on appeal unless
there has been a manifest abuse of discretion. Id.
In this case, defense counsel made a motion in limine to exclude evidence of the
controlled buy, which the trial court denied. Immediately after Officer Garner testified that
he conducted a controlled buy, and as he was about to specifically discuss how he did so, the
1
following colloquy occurred:
DEFENSE COUNSEL: I don’t know how many times we’re going to have to do this.
This is exactly what I moved in my motion in limine. We can’t
cross examine his confidential informant. But they get an
opportunity to get all this stuff in. If that’s not prejudicial.
THE COURT:
This witness can testify about what he personally did. He
can’t testify about [what] anybody said or anything like
that. But he can testify to the extent of what he did, what
his personal knowledge.
DEFENSE COUNSEL: Your honor, here’s the problem with that, it prejudices the
Defendant’s case because the State gets to hide the lying,
cheating confidential informant that they used. We can’t cross
examine the confidential informant. We don’t know what Larry
Garner did with the confidential informant. We have no way for
us to ever know. And that’s the [prejudice] is that he’s going to
PROSECUTOR:
Technically that’s not correct. You can cross examine a
confidential informant and the burden is on the Defense
to request ... the disclosure of the confidential informant
and that has not been done in this case. There’s been no
request for an informant and we’re not obligated unless
it’s requested to disclose it.
DEFENSE COUNSEL: Your Honor
PROSECUTOR:
I mean, it’s the law.
1
We note that Franklin failed to abstract this colloquy in his brief on appeal. Although
failure to abstract those portions of the record relevant to the points on appeal may
preclude this court from considering those issues, we may go the record to affirm. See
Robinson v. State, 49 Ark. App. 58, 896 S.W.2d 442 (1995).
5
CACR05925
DEFENSE COUNSEL: Judge, if that’s the way the State’s going to rest, if that’s the
way they’re going to be that’s fine. But he’s not charged with
possessing it and charged him delivery [sic] of a controlled
substance and this is irrelevant. If he were charged with
possession it would be relevant. It’s irrelevant and it’s
prejudicial. There’s no way for us to defeat it or even attempt to.
PROSECUTOR:
I think the Court of Appeals has held that this is relevant
evidence to be offered in regard to possession with intent
to deliver.
THE COURT:
He can testify about this own personal knowledge. He
can’t testify on anything the confidential informant said,
obviously that would be hearsay and he couldn’t be cross
examined on it. But he can testify about what he
personally did and that’s subject to cross examination.
DEFENSE COUNSEL:
Very well.
THE COURT:
Objection overruled.
Franklin first claims that the trial court erred in allowing Garner’s testimony as to the
controlled drug buy because it was hearsay. Hearsay is a “statement, other than the one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Ark. R. Evid. 801(c). According to Ark. R. Evid. 801(a), a
“statement” is an “oral or written assertion” or “[n]onverbal conduct of a person, if it is
intended by him as an assertion.”
During his testimony about the controlled buy at Franklin’s residence, Garner said
that he searched the confidential informant, that he observed the informant going “to and
from the residence,” and that he recovered drugs from him. Garner also said that he used
photographed bills in the buy and that the serial numbers on the bills matched those
recovered during the search of Franklin’s residence. Garner did not testify as to anything that
the informant said or wrote, nor did he testify as to any nonverbal conduct by the informant
that could be intended as an assertion. We fail to see how Garner’s testimony about how he
6
CACR05925
conducted the controlled buy in this case concerned a “statement” as defined in Ark. R. Evid.
801; thus, we hold that the testimony is not hearsay.
In addition, citing Ark. R. Evid. 403, Franklin asserts that “[t]he State’s allegation of
controlled drug buys prior to [his] arrest prejudiced [him] unfairly because the allegation was
factually insufficient to sustain a charge of delivery and because [he] had no way of rebutting
the allegation.” However, Franklin offers no convincing authority to support these claims,
and he fails to explain how the cases he cites (i.e, Prater v. State, 307 Ark. 180, 820 S.W.2d
429 (1991), and Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992)) support his
assertions. As our supreme court has stated many times, arguments that are unsupported by
convincing argument or authority will not be considered on appeal, unless it is apparent
without further research that the arguments are welltaken. Webb v. Bouton, 350 Ark. 254,
85 S.W.3d 885 (2002).
For the reasons stated above, we hold that the trial court did not abuse its discretion
in allowing Garner’s testimony concerning the controlled drug buys at Franklin’s residence;
thus, we affirm.
Affirmed.
GLOVER and CRABTREE, JJ., agree.
7
CACR05925
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.