Michael Anthony Benjamin v. State of Arkansas
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR 07-1230
Opinion Delivered
MICHAEL ANTHONY BENJAMIN
APPELLANT
V.
STATE OF ARKANSAS
MAY 28, 2008
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
[CR-06-1386-2]
HONORABLE KIM M. SMITH, JUDGE
APPELLEE
AFFIRMED
JOHN B. ROBBINS, Judge
Appellant Michael Anthony Benjamin was convicted in a jury trial of two counts of
delivery of a controlled substance, methamphetamine. He was sentenced to two consecutive
twenty-five year prison terms and fined $40,000.00. Mr. Benjamin now appeals, raising three
arguments for reversal. First, he argues that there was insufficient evidence to support his
convictions. Next, he contends that the trial court abused its discretion by refusing to give
a jury instruction on probation. Finally, Mr. Benjamin argues that his sentences violated the
Eighth Amendment of the United States Constitution as well as Article two, section nine of
the Arkansas Constitution. We affirm.
Because of double-jeopardy concerns, we consider challenges to the sufficiency of the
evidence before addressing other arguments. Saul v. State, 92 Ark. App. 49, 211 S.W.3d 1
(2005). When the sufficiency of the evidence is challenged, we consider only the evidence
that supports the verdict, viewing the evidence in the light most favorable to the State.
LeFever v. State, 91 Ark. App. 86, 208 S.W.3d 812 (2005). The test is whether there is
substantial evidence to support the verdict, which is evidence that is of sufficient force and
character that it will, with reasonable certainty, compel a conclusion one way or another. Id.
On review, this court neither weighs the evidence nor evaluates the credibility of witnesses.
Cluck v. State, 91 Ark. App. 220, 209 S.W.3d 428 (2005).
Officer Kevin Roper of the Drug Task Force testified that he was working in
Washington County on April 19, 2006, when a controlled methamphetamine buy occurred.
The confidential informant was George Smith, who had arranged to buy methamphetamine
from Mr. Benjamin. According to Officer Roper, Mr. Smith’s person and his vehicle were
searched for narcotics, and he was given $100 in buy money. Mr. Smith was equipped with
a wire transmitter, and the police followed him in an unmarked car to a gas station where the
drug deal was to take place.
Officer Roper testified that he parked at the gas pumps and observed a transaction
between appellant and Mr. Smith from a distance of about twenty feet. The two men met
on a sidewalk and made an exchange, and then talked for eight or ten minutes before
returning to their respective vehicles. The police listened to their conversation through the
audio wire, and then followed the confidential informant to a predetermined location. The
police again searched Mr. Smith, and the $100 in buy money was not found. Mr. Smith
turned over a small bag containing a substance later determined by the crime lab to be 0.7912
grams of methamphetamine.
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The second controlled buy occurred on April 25, 2006, and this time Mr. Smith
arranged to meet appellant at a grocery store parking lot. Officer Justin Ingram gave
assistance, and the police again followed Mr. Smith to the location of the transaction after
conducting a search and supplying him with buy money. According to Officer Ingram, the
two men conducted the deal in Mr. Benjamin’s car while Officer Ingram listened to their
conversation through the wire transmitter and observed from a distance of about thirty feet.
After the transaction, the police followed Mr. Smith to a predetermined location where he
gave them a bag containing what was later determined by the crime lab to be 0.7716 grams
of methamphetamine.
Mr. Smith’s testimony about the two transactions was consistent with the officers’
testimony. He stated that on the first occasion, he walked up and gave Mr. Benjamin $100
in exchange for a “gram of ice, which is the purest form of methamphetamine.” Mr. Smith
indicated that he made the same purchase again while dealing with Mr. Benjamin inside
his car during the subsequent transaction. Mr. Smith testified that he also purchased
methamphetamine from appellant on a couple of occasions prior to the controlled buys.
Officer Josh McConnell testified that he gave assistance during both controlled buys.
He stated that on each occasion he was able to hear slang talk evidencing a drug deal. On
cross-examination, Officer McConnell acknowledged that in his first police report of the
April 19, 2006, incident, he referred to the suspect as a “WM, which stands for white male,”
when in fact Mr. Benjamin is black. He stated that he used the “WM” designation six times
in the first report, and also six times in a second report. However, Officer McConnell
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explained that these were simply typographical errors because he deals with white suspects the
majority of the time, and that he was used to typing “WM.” He noted that in his report he
correctly spelled out “black male” when he was not abbreviating.
We first address Mr. Benjamin’s argument that there was insufficient evidence to
support his two convictions for delivery of a controlled substance, methamphetamine. A
“controlled substance” is defined as “a drug, substance, or immediate precursor in schedules
I through VI.” Ark. Code Ann. § 5-64-101(5) (Repl. 2005). The Director of the State
Health Department is given authority to designate controlled substances under Ark. Code
Ann. § 5-64-201 (Repl. 2005). Mr. Benjamin’s conviction was pursuant to Ark. Code
Ann. § 5-64-401(a)(1)(A)(i) (Repl. 2005), which provides that it is unlawful to deliver a
“controlled substance classified in Schedule I or Schedule II that is a narcotic drug or
methamphetamine[.]” Mr. Benjamin argues that, strictly construing the statutes, the State
failed to present evidence that he delivered a substance that the Director has placed in either
Schedule I or Schedule II.
We hold that this particular argument was not raised below and is thus not preserved
for review. A directed verdict motion is treated as a challenge to the sufficiency of the
evidence and requires the movant to inform the trial court of the specific basis on which the
motion is made. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Arguments not
raised at trial will not be addressed for the first time on appeal, and parties cannot change the
grounds for an objection on appeal, but are bound on appeal by the scope and nature of the
objections and arguments presented at trial. Id.
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When Mr. Benjamin made his directed verdict motion, he argued only that there was
insufficient evidence that he was the person who delivered the methamphetamine. He did
not argue that there was a lack of proof that methamphetamine was a Schedule I or II
controlled substance. Because Mr. Benjamin did not apprise the trial court of this specific
argument, he is barred from raising it on appeal. See Abshure, supra. Had he properly raised
this as an issue, the trial court could have taken judicial notice that methamphetamine is a
Schedule II controlled substance under the State Health Department’s current regulations.
See List of controlled Substances for the State of Arkansas (January 26, 2006). Our law is wellestablished that courts may take judicial notice of agency regulations adopted pursuant to law,
and that it is not necessary to formally introduce the regulations into evidence for the court
to do so. Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995). Arkansas courts have
long taken judicial notice of the State Health Department’s regulations classifying controlled
substances into particular schedules. Id.
Mr. Benjamin also argues that there was insufficient evidence of his identity as the
person who sold the methamphetamine, and this challenge to the sufficiency of the evidence
is preserved for review because it was raised below.
In support of his argument,
Mr. Benjamin notes that the police did not arrest him immediately after the alleged incidents,
and that the State waited more than two months to file its criminal information.
Mr. Benjamin further relies on Officer McConnell’s admission that he identified the suspect
a total of twelve times as a white male in two different reports. Mr. Benjamin asserts that the
government evidently conducted two separate controlled buys with a white man, and
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nonetheless chose to pursue its case against him.
Accordingly, he contends that his
convictions were based on insubstantial evidence.
Contrary to appellant’s argument, there was substantial evidence to support the jury’s
finding that he twice delivered methamphetamine to the confidential informant. The
informant identified Mr. Benjamin as the person who sold him methamphetamine, and three
police officers identified Mr. Benjamin as the person involved in the controlled drug deals.
While Officer McConnell did refer to appellant as a “WM” in his reports, he explained that
this was simply a mistake. Viewing the evidence in the light most favorable to the State,
considering only that evidence that supports the verdict, we hold that substantial evidence
supports the convictions.
Mr. Benjamin next argues that the trial court erred in refusing to give his proffered
jury instruction on the availability of probation as an alternative sentence. The proffered
instruction provided in pertinent part:
[Defendant] may also contend that he should receive an alternative sentence. You
may recommend an alternative sentence, but you are advised that your
recommendation will not be binding on the court . . . . Even if you do recommend
an alternative sentence, however, you must still complete the other verdict forms.
Mr. Benjamin correctly asserts that probation is an alternative sentence available for
methamphetamine delivery offenses such as this under Ark. Code Ann. § 5-4-104(e)(1)(A),
§ 5-64-401(a)(1)(A), and § 5-4-301(a)(1). See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331
(2000).
Arkansas Code Annotated section 16-97-101(4) (Repl. 2006) authorizes a trial court
to give a jury instruction regarding alternative sentencing, and provides:
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The court, in its discretion, may also instruct the jury that counsel may argue as to
alternative sentences for which the defendant may qualify. The jury, in its discretion,
may make a recommendation as to an alternative sentence. However, this
recommendation shall not be binding on the court[.]
The decision to allow alternative sentencing is reviewed for an abuse of discretion. Vanesch
v. State, 343 Ark. 381, 37 S.W.3d 196 (2001).
In the present case, Mr. Benjamin argues that the trial court abused its discretion in
failing to grant his proffered instruction, asserting that the trial court refused to consider the
fact that probation was a valid alternative sentence. Mr. Benjamin contends that the trial
court compounded its error by relying upon the jury’s recommendation of consecutive
twenty-five year sentences, without first providing the jury with all of the viable sentencing
options.
Abuse of discretion is a high threshold that does not simply require error in the trial
court’s decision, but requires that the trial court act improvidently, thoughtlessly, or without
due consideration. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). Based on our review
of the proceedings, we hold that the trial court exercised its discretion and that there was no
abuse of that discretion in denying an instruction on probation. The trial court acknowledged
in its comments from the bench that its decision in this regard was discretionary, and
explained in writing on the proffered instruction, “Discretionary with court and court doesn’t
feel it is appropriate under the facts of this case.” In subsequently following the jury’s
recommendation to run the sentences consecutively, the trial court referenced aggravating
circumstances presented by the State, including other drug sales and appellant’s possession of
a weapon, and stated that “the jury’s recommendation, in my opinion, is not out of line with
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an appropriate sentence under the circumstances.” This also demonstrated the exercise of
discretion. The trial court was not required to give an instruction permitting the jury to
recommend alternative sentencing, and its refusal to do so was not an abuse of discretion
under these facts.
Moreover, it is axiomatic that some prejudice must be shown in order to find grounds
to reverse, Miller v. State, 97 Ark. App. 285,
S.W.3d
(2007), and Mr. Benjamin has failed
to demonstrate prejudice. The minimum prison term for delivery of methamphetamine is ten
years, and the jury recommended consecutive twenty-five year terms. Therefore, even if the
jury had been presented with an alternative-punishment instruction, it is highly unlikely that
the jury would have recommended probation. See id.
Mr. Benjamin’s remaining argument is that his fifty-year sentence was
unconstitutionally excessive. The Eighth Amendment guarantees that, “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
Article two, section nine of the Arkansas Constitution prohibits the infliction of “cruel or
unusual punishment.” Mr. Benjamin contends that his punishment violates both the United
States and Arkansas Constitutions.
Mr. Benjamin correctly asserts that the range of punishment for each delivery of less
than twenty-eight grams of methamphetamine is ten to forty years or life, see Ark. Code Ann.
§ 5-64-401(a)(1)(A)(i) (Repl. 2005), and that probation is also permissible. He notes that the
substances he delivered weighed less than a gram and approximately three percent of the
maximum amount prohibited by the statute, and that he was a first-time offender.
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Mr. Benjamin further submits that drug offenses have only the potential to disturb the public’s
peace and dignity, as opposed to more immediate and offensive crimes such as murder or
burglary. Here, there was no identifiable victim, and appellant notes that his sentencing range
exceeded that available for a person convicted of second-degree murder. See Ark. Code Ann.
§ 5-10-103(a)(2)(b) and § 5-4-401(a)(2) (Repl. 2006). Mr. Benjamin also refers us to the laws
of surrounding states where the minimum punishment for delivery of methamphetamine is
significantly less than ten years’ imprisonment. He argues that his sentence was grossly
disproportionate to the crimes, and was constitutionally impermissible.
In Ewing v. California, 538 U.S. 11 (2003), the United States Supreme Court held that
the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to
the crime. In Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001), the Arkansas Supreme
Court noted that it has interpreted the provisions in both the state and federal constitutions
identically on the issue of the prohibition against cruel and unusual punishment. The
supreme court in Bunch, supra, held that if the sentence fixed by the trial court is within
legislative limits, the appellate court is not free to reduce it even though it might consider it
to be unduly harsh.
The supreme court identified the following “extremely narrow
exceptions to this general statement of the law: (1) where the punishment resulted from
passion or prejudice; (2) where it was a clear abuse of the jury’s discretion; or (3) where it was
so wholly disproportionate to the nature of the offense as to shock the moral sense of the
community.” Id. at 740, 43 S.W.3d at 138.1
1
The appellant urges us to avoid relying on the standards announced in Bunch,
supra, because these are the same standards the supreme court announced in Henderson v.
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We cannot say that Mr. Benjamin’s sentence was grossly disproportionate to his
crimes or that any of the narrow exceptions are applicable. The testimony during the
guilt and sentencing phases of the trial showed that Mr. Benjamin had made multiple
methamphetamine deliveries in public places and was later arrested possessing
methamphetamine and a handgun. He was convicted for two separate offenses within a oneweek period, for which he received mid-range sentences of twenty-five years each. We are
not prepared to say that this is the “rare case in which a threshold comparison of the crime
committed and the sentence imposed leads to an inference of gross disproportionality.” See
Harmelin v. Michigan, 501 U.S. 957, 1005 (1991). To the extent that Mr. Benjamin is arguing
that the sentencing statute is itself unconstitutional, this specific argument was not raised
below and is thus not preserved for review. See Abshure, supra. We hold that the trial court
committed no error in rejecting appellant’s argument that his fifty-year sentence violated
either the United States or Arkansas Constitution.
Affirmed.
GLADWIN and BAKER, JJ., agree.
State, 322 Ark. 402, 910 S.W.2d 656 (1995), a case in which the supreme court held that a
life sentence for first-offense delivery of 0.238 grams of cocaine did not violate the Eighth
Amendment. In Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001), the federal appeals
court disagreed, finding that this did constitute an Eighth Amendment violation.
However, our supreme court continues to cite Bunch, supra, and it has not been overruled.
We are bound to follow the decisions of our supreme court. Durden v. State, 93 Ark. App.
1, 216 S.W.3d 145 (2005).
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