Ruben Marmolejo v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN B. ROBBINS, JUDGE
DIVISION IV
CACR 07379
DECEMBER 19, 2007
RUBEN MARMOLEJO
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
[NO. CR064201]
V.
HONORABLE WILLIAM A. STOREY,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant Ruben Marmolejo was charged with possession of methamphetamine with
intent to deliver, with the crime alleged to have occurred on January 31, 2006. After a jury
trial, he was convicted of the lesserincluded offense of possession of methamphetamine, and
was sentenced to ten years in prison. Mr. Marmolejo’s sole argument on appeal is that the
trial court erred in admitting evidence of his subsequent bad acts, which consisted of three
methamphetamine sales. We affirm.
Officer Gene Johnson of the Springdale Police Department was patrolling on
January 31, 2006, when he stopped a car for speeding. Tonya Dawson was the driver.
Mr. Marmolejo was a passenger in the car, and he was arrested on an outstanding warrant.
While appellant was being booked at the police station, the police found two bags containing
a total of 8.6 grams of methamphetamine in one of his socks. Mr. Marmolejo also possessed
$1376 in cash.
Over appellant’s objection, the State was permitted to elicit testimony about
subsequent methamphetamine transactions that occurred after appellant was released on bail.
Officer Justin Ingram testified that he used a confidential informant who bought 0.86 grams
of methamphetamine from Mr. Marmolejo for $80 on April 14, 2006. On April 27, 2006,
Officer Ingram used another informant who purchased 0.7 grams from Mr. Marmolejo for
$100. Officer Andy Lee testified that he was involved in substantial drug buy on February
16, 2006, when he was working undercover and negotiated a deal with appellant and a man
named Cody Poole. According to Officer Lee, the appellant controlled the drug deal and
sold him 58 grams of methamphetamine in exchange for $2300.
Tonya Dawson also testified for the State. She stated that she is currently in prison,
and that in January 2006 she was working as a drug dealer. She stated that she “sold lots of
drugs” for appellant and also bought drugs from him daily. According to Ms. Dawson, both
she and Mr. Marmolejo were heavy drug users at that time.
Mr. Marmolejo testified on his own behalf, and he admitted to possession of the
methamphetamine that the police found on his person on January 31, 2006. However, he
stated that he was addicted to methamphetamine and was a heavy user, and that the drugs
were only intended for personal use. Mr. Marmolejo denied any intention to sell the drugs.
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On appeal, Mr. Marmolejo argues that the trial court abused its discretion in allowing
testimony about his three subsequent methamphetamine deliveries. Arkansas Rule of
Evidence 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
Mr. Marmolejo argues that evidence of the other drug sales was inadmissible under Rule
404(b) because the evidence impermissibly established nothing more than the fact that he
was a criminal.
Mr. Marmolejo further relies on Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980),
where the supreme court held that once the independent relevancy of othercrimes evidence
is established under Rule 404(b), it logically follows that the evidence should be scrutinized
under Rule 403, which provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Mr. Marmolejo contends that whatever probative value the evidence of the other deliveries
might have had, the prejudice was substantially greater. He posits that no jury could
reasonably be expected to fairly evaluate the evidence in a possession with intent to deliver
case after it was told that the defendant had been arrested for involvement in three
subsequent drug deliveries all within three months of his arrest for the current charge. Mr.
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Marmolejo notes that while the jury found him not guilty of possession with intent to deliver,
it did convict him of possession of methamphetamine and sentenced him to the maximum
tenyear sentence for that offense. He asserts that this result was premised on conduct that
was not proven nor directly related to the case at issue, and requests that we reverse and
remand for a new trial.
Generally, evidence of other crimes, wrongs, or acts is not admissible merely to prove
the bad character of the defendant and to show that his actions conformed to that character.
Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). However, if the evidence is relevant
to the main issue of the case, in the sense of tending to prove some material point rather than
to prove the defendant is a criminal, the evidence may be admissible with a proper cautionary
instruction by the trial court. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994).
In several supreme court cases, the supreme court has recognized that when a
defendant is legitimately charged with possession with intent to deliver, evidence of prior
drug sales, if not too remote in time, is admissible to show intent. See Owens, supra;
Scroggins v. State, 312 Ark. 107, 848 S.W.2d 400 (1993); Holloway v. State, 293 Ark. 438,
738 S.W.2d 796 (1987); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). The same
is true where the evidence pertains to drug sales that occurred subsequent to, rather than prior
to, the charged incident. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).
Pursuant to the rationale articulated in the above line of cases, the subsequent
methamphetamine deliveries in the present case, all of which occurred within three months
of the charged offense, were relevant to show Mr. Marmolejo’s intent regarding his
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possession of the 8.6 grams of methamphetamine. Moreover, the trial court properly gave
the following cautionary instruction to the jury:
Evidence of other alleged crimes, wrongs or acts of Ruben Marmolejo may not be
considered by you to prove the character of Ruben Marmolejo in order to show that
he acted in conformity therewith. This evidence is not to be considered to establish
a particular trait of character that he may have nor is it to be considered to show that
he acted similarly or accordingly on the day of the incident in question. This
evidence is merely offered as evidence of motive, opportunity, intent, preparation,
plan knowledge, identity or absence of mistake or accident. Whether any other crime
or alleged wrong may have been committed is for you to determine.
A trial court is accorded broad discretion in ruling on Rule 404(b) questions.
Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). In light of the foregoing, we find
no abuse of discretion in admitting testimony regarding the subsequent methamphetamine
sales. A trial court is likewise entitled to great discretion in ruling on issues arising under
Ark. R. Evid. 403. Owens, supra. We are convinced that, although the objectionable
testimony was detrimental to Mr. Marmolejo, its probative value was not outweighed by the
danger of unfair prejudice. See id.
Affirmed.
PITTMAN, C.J., and BIRD, J., agree.
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