Kenneth Allan Britt v. State of Arkansas
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Judge Miller’s unpublished opinion for 11707
DIVISION II
CACR07103
November 7, 2007
KENNETH ALLAN BRITT
APPELLANT
AN APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
[CR0528]
v.
STATE OF ARKANSAS
HONORABLE LANCE L.
APPELLEE HANSHAW, JUDGE
AFFIRMED
Appellant Kenneth Allan Britt appeals his convictions for manufacturing
methamphetamine, possessing drug paraphernalia with intent to manufacture
methamphetamine, and fleeing. We affirm.
At Britt’s September 7, 2006 jury trial, Cabot Police Officer Brad Wilkerson testified
that on October 11, 2004, he attempted to stop a speeding vehicle by pulling in behind the
vehicle with his blue lights on. The car sped up to as much as ninety miles per hour as
someone threw items from the window. Wilkerson ran the car’s license plate and it was
registered to Britt. Ultimately, the car traveled off the road and into the woods, and hit a
tree. A man jumped from the driver’s seat and ran into the woods. Sarina Simpson, who was
sitting in the passenger’s seat, told Wilkerson that Britt was the driver.
Simpson testified that she was riding with Britt on October 11, 2004, when he refused
to stop for the police. While speeding to evade the police, Britt handed her some items to
throw out of the window. Although Britt crashed the car into a tree and fled the scene,
Simpson did not run because she felt she had not done anything wrong. Initially, when asked
who was driving the car, she provided the police with a fake name; but she later told them
the truth. Simpson admitted that she had used Britt’s car on occasion and that she had used
drugs on the day in question. She also testified that the State initially filed charges against
her but later dropped the charges.
Cabot Police Detective John Dodd testified that, on October 11, 2004, he responded
to a call of a suspected meth lab. He went to the scene and found items in the trunk of Britt’s
car indicating that the car was being used to manufacture methamphetamine. When he
served Britt with the arrest warrant at Simpson’s residence on January 25, 2005, he found
Britt hiding between the mattress and box springs of a bed. When searched, Britt had a green
vegetable substance and eight bags of an offwhite powder in his front pocket.
Deborah Pumphrey of the Arkansas State Crime Lab testified that the items found in
Britt’s car were commonly used to manufacture methamphetamine. She performed tests on
the items, which revealed the presence of methamphetamine, as well as phosphorous and
iodine.
North Little Rock Police Officer Shay Cobbs testified that on September 15, 2004,
Simpson was apprehended in Target for trying to steal a box of pseudoephedrine, while Britt
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waited for Simpson in the driver’s seat of the car. As a result of a search of the car, Britt was
convicted of possession of methamphetamine and possession of drug paraphernalia.
Jacksonville Police Detective Kimberly Lett testified that she was called to Simpson’s
house on January 25, 2005, to investigate a potential meth lab. A search of the residence
produced evidence that methamphetamine was being manufactured there. Furthermore, a
duffle bag containing items used to manufacture methamphetamine was found in the trunk
of Simpson’s car. As a result of the search, Britt was convicted of possessing
methamphetamine with intent to deliver.
Britt moved for a directed verdict at the close of the State’s case. His motion was
denied.
In his caseinchief, Britt offered the testimony of his sister, Marla Lee Foreman.
Foreman testified that Simpson called her on October 11, 2004, stating that she had wrecked
Britt’s car and that he was going to kill her. Britt also offered the testimony of Connie
Darlene Clay Henderson, who stated that Simpson told her that she and another man wrecked
Britt’s car on October 11, 2004. Henderson further testified that Simpson said that she did
not give the other person’s name because she was afraid Britt would get mad.
Britt rested and then renewed his motion for a directed verdict. He argued that there
was insufficient evidence to corroborate the testimony of Simpson. The motion, however,
was denied and the jury found Britt guilty and sentenced him to twenty years in prison.
On appeal, Britt argues that the trial court erred in denying his motion for directed
verdict. A directed verdict motion is treated as a challenge to the sufficiency of the evidence.
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See Barnes v. State, 94 Ark. App. 321, 230 S.W.3d 311 (2006). In challenges to the
sufficiency of the evidence, we view the evidence in a light most favorable to the State and
consider only if there is substantial evidence to support the verdict. Boveia v. State, 94 Ark.
App. 252, 228 S.W.3d 550 (2006). Substantial evidence, whether direct or indirect, is that
which is forceful enough to compel reasonable minds to reach a conclusion one way or
another without resorting to speculation or conjecture. Id.
Britt argues that Simpson was an accomplice and that, without her testimony, the
evidence was insufficient to find him guilty. Britt relies on Ark. Code Ann. § 1689
111(e)(1)(A) (1987), which provides that a felony conviction cannot be based upon the
testimony of an accomplice unless it is corroborated by other evidence tending to connect
the defendant to the commission of the offense. Whether Simpson was an accomplice was
disputed. Furthermore, whether a witness is an accomplice is a question for the jury. Moser
v. State, 266 Ark. 200, 583 S.W.2d 15 (1979). Therefore, the trial court correctly denied
Britt’s motion for directed verdict and submitted this issue to the jury.
Britt next argues that the trial court erred by admitting evidence of prior drugrelated
convictions pursuant to Ark. R. Evid. 404(b) because the probative value of this evidence
was outweighed by undue prejudice to him. Britt, however, failed to object to Officer
Cobbs’s testimony regarding his prior arrest. Therefore, this argument is not preserved for
appellate review. See Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998).
Next, Britt argues that the trial court erred by admitting evidence of a subsequent
drug related conviction pursuant to Ark. R. Evid. 404(b) because the probative value of this
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evidence was outweighed by undue prejudice to him. The admission of evidence under Rule
404(b) is left to the sound discretion of the trial court and will not be disturbed absent a
manifest abuse of discretion. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998).
Moreover, we defer to the trial court to determine whether the prejudicial effect of evidence
outweighs its probative value. Saul v. State, 365 Ark. 77, 225 S.W.3d 373 (2006). Indeed,
the admission or rejection of evidence is left to the sound discretion of the trial court and will
not be reversed absent an abuse of discretion. Davis v. State, 362 Ark. 34, 207 S.W.3d 474
(2005).
While Rule 404(b) specifically excludes evidence of other crimes, wrongs, or acts to
prove the character of a person in order to show that he acted in conformity therewith, the
rule does allow the admission of evidence of other wrongs, crimes, or acts to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Ark. R. Evid. 404(b). Britt’s subsequent conviction involved a crime similar to
the one at issue here and the trial court was permitted to admit this evidence for the purposes
set forth in Rule 404(b). Therefore, we cannot say that the trial court abused its discretion
in admitting the subsequent conviction into evidence.
In Britt’s final argument, he asserts that the trial court erred by admitting into
evidence a letter he wrote to Simpson while he was awaiting trial. He argues that the letter’s
probative value is outweighed by undue prejudice to him. Britt, however, failed to object
to the prejudicial effect of the letter at trial. Therefore, this argument is not preserved.
Affirmed.
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HART and GLOVER, JJ., agree.
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