Jackson v. State

385 S.W.3d 394, 2011 Ark. App. 528, 2011 Ark. App. LEXIS 583
CourtCourt of Appeals of Arkansas
DecidedSeptember 14, 2011
DocketNo. CA CR 11-208
StatusPublished
Cited by10 cases

This text of 385 S.W.3d 394 (Jackson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. State, 385 S.W.3d 394, 2011 Ark. App. 528, 2011 Ark. App. LEXIS 583 (Ark. Ct. App. 2011).

Opinion

RITA W. GRUBER, Judge.

| Appellant John Dewey Jackson was convicted by a jury of two counts of delivery of a controlled substance and sentenced to twenty-five years’ imprisonment and a $25,000 fine for one count and twenty years’ imprisonment and a $25,000 fine for the second count, the prison terms to run concurrently. On appeal, he contends that the evidence at trial was not sufficient to support his convictions.1 We hold that substantial evidence supports the verdict and affirm.

The State presented the testimony of Robert Johnson, a confidential informant; Detective Glen Latham, a member of the Washington County Drug Task Force; and Dan 12Hedges, a forensic chemist from the Arkansas State Crime Laboratory. Detective Latham and Mr. Johnson testified that on August 18, 2009, and August 31, 2009, Mr. Johnson served as a confidential informant for the Drug Task Force in conducting two controlled buys from appellant. Mr. Johnson testified that he called appellant on August 18, 2009, and asked him “if it would do me any good to come over” and that appellant said, “come see me.” Mr. Johnson explained that he took that to mean that appellant had drugs. He then called Detective Latham and the two met near appellant’s house. Detective Latham searched Mr. Johnson and his car, placed a wireless transmitter and recorder on Mr. Johnson, gave him money to purchase the drugs, followed him to appellant’s house, and parked his car out of sight but where he could maintain visual contact during the purchase. Mr. Johnson testified that he found appellant and Mr. Johnson’s brother Danny, who lived next door to appellant, outside in “the salvage yard” stripping aluminum. They talked for a bit and then Mr. Johnson gave appellant $300. Mr. Johnson and Danny went to Danny’s trailer and talked until appellant returned with the methamphetamine. Mr. Johnson said that he and appellant went outside, appellant gave him the methamphetamine, they talked for a few minutes, and then Mr. Johnson left, going back to his meeting place with Detective Latham.. Mr. Johnson gave Detective Latham the methamphetamine and waited while the detectives searched him and his car.

On August 31, Mr. Johnson called appellant to set up another purchase and went through the same procedures of being searched by Detective Latham as for the first buy. When Mr. Johnson arrived at appellant’s house, appellant was in the yard working on a “go-jcartg deal.” Mr. Johnson gave appellant the. money and then asked if Danny was around. Appellant said he was, so Mr. Johnson went to Danny’s trailer and talked with him for ten or fifteen minutes before appellant came to the trailer with the drugs. When appellant handed the drugs to Mr. Johnson, appellant asked if Mr. Johnson wanted an extra baggie and some black tape to wrap around it. Mr. Johnson said that he did not. He testified that the baggie and tape are used to help throw the drugs out the window if you get stopped by the police. He then met with Detective Latham, gave him the methamphetamine, and submitted to a search. Mr. Johnson testified that he and appellant did not mention methamphetamine during either buy. Mr. Johnson showed appellant the money, and appellant gave Mr. Johnson the drugs. He testified that the only reference to drugs was when appellant asked Mr. Johnson if he wanted a baggie and some tape to wrap around it. In addition to the testimony, the State introduced into evidence the recordings of both transactions and a transcript of the recordings.

Appellant testified that he had never sold methamphetamine on August 18, August 81, or any other day. His testimony was inconsistent regarding whether he was present at the drug buys at issue in this case, but he stated that he did not sell methamphetamine on either date. He said that he did not recognize his voice on the tapes of the transaction played at trial. He also testified that Danny Johnson told him the week before trial that he had just recalled that it was he, Danny, who sold the drugs on the two dates in question. Danny Johnson then testified that he, not appellant, sold the drugs to Mr. Johnson, the confidential informant. He said that he decided to testify because he just “couldn’t handle” appellant going to jail for something that “I did.”

|4On appeal, appellant argues that the evidence at trial was not sufficient to prove that the methamphetamine sold on August 31, 2009, was properly tested because the chemist who testified at trial was not the chemist who tested the substance from the second drug buy. Therefore, he claims that the circuit court’s denial of his motion for directed verdict was clearly erroneous.

As a threshold matter, we note that the State argues that appellant did not properly preserve this argument for our review because he changed the nature of his sufficiency challenge between the close of the State’s case and the close of all of the evidence. In order for us to consider a sufficiency challenge, appellant must have preserved the issue for appeal by moving for a directed verdict at the close of the evidence offered by the prosecution and again at the close of all of the evidence. Ark. R.Crim. P. 33.1(a) (2011). The motion must state the specific grounds therefor; the failure to challenge the sufficiency at the times and in the manner prescribed by Rule 33.1 constitutes a waiver of the issue. Ark. R.Crim. P. 33.1(a), (c). As long as a specific basis was articulated in the original directed-verdict motion, however, a general renewal at the close of the evidence is sufficient to preserve the issue for appeal. Dale v. State, 55 Ark.App. 184, 188, 935 S.W.2d 274, 276 (1996). If the court does not rule on the renewed motion made at the close of the evidence, the motion is deemed denied for the purpose of obtaining appellate review on the question of sufficiency of the evidence. Ark. R.Crim. P. 33.1(c).

In this case, counsel for appellant made the following motion for directed verdict at the close of the State’s case:

| .¡COUNSEL: At this time, Your Honor, the defense moves for a directed verdict of not guilty. I think based on the testimony from Mr., whatever his name was at the lab, he cannot give us a positive that this is methamphetamine, at least on the second set. COURT: Anything else?
COUNSEL: That’s it. No, sir.

Then, at the close of all of the evidence, appellant’s counsel stated the following:

Well, I guess without the jury here, Your Honor, now that all the evidence is in I’d like to renexo my motion for a judgment of acquittal to the jury. I think that with the testimony that’s been presented by the Defendant that it’s very evident that he was not the one who sold the drugs. Therefore, I think the prosecutor has presented insufficient information and ask for that ruling.

(Emphasis added.)

While appellant did add an argument regarding certain testimony he presented after the State rested its case, we conclude that the general renewal of his initial directed-verdict motion is sufficient to preserve the initial issue on appeal. The fact that he made additional arguments in his final motion does not bar our consideration of grounds specifically stated in a motion made at the close of the State’s case and generally renewed at the close of all of the evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
385 S.W.3d 394, 2011 Ark. App. 528, 2011 Ark. App. LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-arkctapp-2011.