Rachel Callaway v. State of Arkansas

2020 Ark. App. 422

• Court: Court of Appeals of Arkansas
• Decided: September 23, 2020
• Status: Published

Opinion

Reason: I attest to the accuracy Cite as 2020 Ark. App. 422 and integrity of this document Date: 2021-07-12 11:11:25 ARKANSAS COURT OF APPEALS Foxit PhantomPDF Version: DIVISION II 9.7.5 No. CR-20-52

OPINION DELIVERED: SEPTEMBER 23, 2020 RACHEL CALLAWAY APPERLLANT APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CR-18-244] V. HONORABLE GORDON WEBB, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

ROBERT J. GLADWIN, Judge

Rachel Callaway appeals her convictions by the Baxter County Circuit Court on

two charges of delivery of methamphetamine and one charge of unlawful use of a

communication device. Her sole argument on appeal is a challenge to the sufficiency of the

evidence supporting those convictions. We affirm.

I. Facts and Procedural History

On May 29, 2018, Callaway was charged with delivery of methamphetamine, a Class

B felony (for the May 7, 2018 purchase of 8.0775 grams); delivery of methamphetamine, a

Class A felony (for the May 9, 2018 purchase of 16.0927 grams); unlawful use of a

communication device, a Class C felony, and proximity to certain facilities, a Class C felony.

Callaway waived her right to a jury trial, and a bench trial was held on May 21, 2019, at

which she was represented by appointed counsel. Four witnesses testified at trial: (1) Officer

George Eddings; (2) Officer Van Nowlin; (3) Benjamin Gilbert, a forensic chemist at the Arkansas State Crime Laboratory (ASCL); and (4) Beverly Rogers, an inmate at the Baxter

County Detention Facility who acted as a confidential informant (CI) for the drug task

force.

Callaway’s counsel moved for a directed verdict at the close of the State’s case-in-

chief, arguing that because the State failed to prove that Callaway had taken an active role

in the two controlled-buy drug transactions sufficient to establish her as anything other than

a “middleman,” the evidence was insufficient to support the delivery-of-methamphetamine

charges. The circuit court denied the motion; the defense put on no additional evidence;

and counsel renewed the motions for directed verdict for the record. The circuit court

denied the renewed motions and took the matter under advisement to read certain caselaw

presented by Callaway’s counsel.

Callaway was convicted on the first three charges:1 delivery of methamphetamine, a

Class B felony; delivery of methamphetamine, a Class A felony;2 and unlawful use of a

communication device, a Class C felony. She was sentenced to 120 months’ imprisonment

in the Arkansas Department of Correction on each conviction, to run concurrently,

pursuant to June 25 and 27 sentencing orders. Callaway filed a timely notice of appeal on

July 18.

1 The fourth charge of proximity to certain facilities, a Class C felony, previously had been dismissed on motion of the State. 2 Arkansas Code Annotated § 5-64-422(b)(3) (Repl. 2016) provides that delivery of methamphetamine is a Class Y felony; however, the information incorrectly identified it as a Class A felony. Prior to sentencing, the State acknowledged that error and agreed to sentencing based on a Class A felony. 2 II. Standard of Review

A motion for a directed verdict is a challenge to the sufficiency of the evidence. E.g.,

Haney v. State, 2020 Ark. App. 341, at 5, 602 S.W.3d 154, 157. On appeal from a denial of

a motion for a directed verdict, the sufficiency of the evidence is tested to determine

whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In

determining whether there is substantial evidence to support the verdict, this court reviews

the evidence in the light most favorable to the State and considers only that evidence that

supports the verdict. Id. Substantial evidence is evidence that is of sufficient force and

character to compel a conclusion one way or the other beyond suspicion or conjecture. Id.

The trier of fact is free to believe all or part of any witness’s testimony and may resolve

questions of conflicting testimony and inconsistent evidence. Id. at 5–6, 602 S.W.3d at 158.

In reviewing a challenge to the sufficiency of the evidence, this court will not weigh the

evidence or assess the credibility of witnesses; those are matters for the fact-finder. E.g., T.R.

v. State, 2018 Ark. App. 328, at 6, 552 S.W.3d 425, 456.

III. Discussion

Callaway first argues that the circuit court erred in denying her timely motions for

directed verdict based on the insufficiency of the evidence regarding the delivery-of-

methamphetamine charges, but the evidence presented at trial supports the opposite

conclusion.

At trial, the State’s first witness was Officer George Eddings of the Baxter County

Sheriff’s Office. He serves as a criminal investigator primarily for narcotics cases. In May

2018, Officer Eddings conducted a series of two controlled drug buys on May 7 and May 9

3 through which quantities of methamphetamine were purchased using CI Rogers as the

buyer. CI Rogers had been arrested on another charge and was cooperating with law

enforcement officials to resolve that charge.

Officer Eddings explained the procedure followed by officers when using a CI to

perform a “controlled buy” of narcotics and specifically how that procedure was followed

in Callaway’s case. This procedure included recording both video and audio of the entire

process, which was watched in real time, from when Callaway met with CI Rogers to when

CI Rogers returned to the Mountain Home Police Department to hand over the

methamphetamine purchased to Officer Eddings.

Regarding the first controlled buy between CI Rogers and Callaway that occurred

on May 7, Officer Eddings testified that CI Rogers had previously spoken to Callaway and

arranged to purchase eight grams of methamphetamine for $400. Officer Eddings explained

that he met CI Rogers behind the Mountain Home Police Department, searched both CI

Rogers and her vehicle, provided her with the funds to purchase the methamphetamine,

and gave her a phone that would record and transmit audio and video during the controlled

buy. After the initial meeting, CI Rogers picked up Callaway at a nearby Harps grocery

store and drove her to a house approximately three or four miles away to meet with Dwayne

Burr. The recordings indicate that Burr told CI Rogers and Callaway that he needed fifteen

minutes to get the drugs ready. While waiting to purchase the drugs, CI Rogers and

Callaway drove around town before returning to meet with Burr and purchase 8.6 grams

of methamphetamine for $400. Following the controlled buy, CI Rogers met back up with

4 Officer Eddings while Callaway remained behind at the residence with Burr. CI Rogers

turned over the purchased drugs to officers; the drugs field tested to be methamphetamine.

On May 9, just two days later, a second controlled buy took place between CI

Rogers and Callaway. CI Rogers informed Officer Eddings that she had spoken with

Callaway on the phone and this time had arranged to buy sixteen grams of

methamphetamine. After meeting with officers as before, CI Rogers went directly to the

same residence where the first controlled buy took place. She walked into the house and

was greeted by Callaway and Burr. Burr once again left to retrieve the drugs, and when he

returned, CI Rogers purchased approximately sixteen grams of methamphetamine for $800.

As a result of his real-time observation of the audio and video received from CI Rogers,

Officer Eddings opined that the drug deal was set up by Callaway.

Officer Van Nowlin of the 14th Judicial Drug Task Force testified next, explained

that while monitoring the controlled drug buy, he personally observed Callaway bartering

with CI Rogers on the price of the drugs to be purchased. Officer Nowlin stated there was

no doubt that Callaway was part of the drug-dealing transaction. He explained that Officer

Eddings was leading the controlled buys during which CI Rogers purchased drugs from

Callaway and Burr. Officer Nowlin acknowledged that he did not have contact with CI

Rogers and that his roll was for safety and surveillance purposes to see who else was moving

in the area. Officer Nowlin noted that he was unaware of who owned the residence

involved in the controlled buys and that he reviewed neither the audiotapes nor the

videotapes of the controlled buys. Officer Nowlin stated that his information regarding the

controlled buys was obtained from Officer Eddings, Officer Steele, and related reports.

5 Benjamin Gilbert, the forensic chemist with the ASCL and the analyst on both of

Callaway’s drug cases, testified for the State regarding the methods used to test chemical

samples and the chain-of-custody procedures utilized. Gilbert stated that he had, in one

submission, received two plastic bags, tested them, and found both to be

methamphetamine—the total weight of the first was 16.0927 grams; and in a second

submission, the total weight was 8.0775 grams.

CI Beverly Rogers, who performed the two controlled buys, testified regarding

Callaway’s involvement in the two transactions. CI Rogers characterized Callaway as “the

middleman pretty much” because Callaway was the person with whom she made the

arrangements to purchase the methamphetamine. CI Rogers testified that Callaway had

intimate knowledge of the neighborhood around Burr’s house, instructed CI Rogers to pick

her up from a local Harps grocery store, set the price for the purchases, and helped facilitate

both transactions. CI Rogers testified that she assumed Callaway obtained the price for the

drugs from Burr because the drugs did not belong to her. CI Rogers admitted that Callaway

did not hand her the drugs, that Burr just put them on the counter, and that she left the

money with Burr.

At the time of trial, CI Rogers was a resident of the Baxter County Detention

Facility. She explained that she had met Callaway at that correctional facility a few months

before she was released. CI Rogers testified that she had contacted the Baxter County

Sheriff’s Office and discussed with them the potential of purchasing methamphetamine from

Callaway.

6 CI Rogers stated that she sought a second purchase of drugs from Callaway shortly

after the first controlled buy. She noted that Callaway told her the price was $800 for sixteen

grams of methamphetamine. CI Rogers testified that she went to the same residence that

Callaway had taken her for the first controlled buy, and when she arrived at the residence,

Callaway and Burr were there along with another guy.

CI Rogers confirmed that Officer Eddings supplied her with video equipment and

that the two controlled-buy transactions with Callaway were recorded. The recordings

showed that Callaway directed CI Rogers to the residence of Burr. CI Rogers testified that

Callaway explained to her that Burr would leave to obtain the drugs and bring them back

to the residence. She confirmed that Callaway introduced her to Burr, after which Burr and

CI Rogers discussed the amount of drugs to be purchased and the price.

Callaway correctly notes that the level of criminal conduct attributed to her is the

key issue in her challenge to the sufficiency of the evidence. She cites Bowles v. State, 265

Ark. 457, 460, 579 S.W.2d 596, 598 (1979), and Yent v. State, 9 Ark. App. 356, 358, 660

S.W.2d 178, 179 (1983), as examples of Arkansas appellate courts holding that a person who

simply introduces a buyer to a seller cannot be convicted of delivery of a controlled

substance or possession with intent to deliver. She also cites Daigger v. State, 268 Ark. 249,

252, 595 S.W.2d 653, 654 (1980), in which our supreme court held that a middleman must

take a more active part to be a principal or even an accomplice. See also Curry v. State, 258

Ark. 528, 527 S.W.2d 902 (1975) (Curry held to have supplied sufficient involvement

where he had taken the money from an undercover officer and returned with the drugs).

7 Callaway argues that according to Arkansas case law, the State was required to prove

that her range of involvement in the two controlled buys fell somewhere between her

merely introducing CI Rogers and Burr and her actually handling the money and drugs.

We disagree with Callaway’s assertion that her level of involvement was insufficient to

support her delivery-of-methamphetamine convictions and note that the holding in Yent,

supra, actually supports the circuit court’s denial of her motions for directed verdict. This

court held that Yent “did much more than merely introduce the officer to the sellers; he

acted throughout the negotiations as an agent and accomplice of the seller by setting the

price, arranging for the meeting, and leading the officer to the meeting spot.” Yent, 9 Ark.

App. at 358, 660 S.W.2d at 179. Here, similar to the appellant in Yent, Callaway (1) at least

implicitly set the price for methamphetamine—at a minimum obtaining the information

from Burr and relaying it to CI Rogers; (2) explicitly arranged for the two meetings with

Burr; (3) had CI Rogers pick her up and led CI Rogers to the residence to meet Burr for

the first controlled buy; (4) stayed behind with Burr after the first controlled buy. These

actions could not reasonably have occurred without Callaway’s arranging for the meeting

between CI Rogers and Burr.

Regarding the second controlled drug buy, Callaway again communicated details by

phone with CI Rogers, including the purchase price for the amount desired. Moreover,

Callaway was waiting with Burr when CI Rogers arrived at the same residence where the

initial controlled buy had occurred.

Rather than Bowles, supra, the facts in this case more closely resemble those in Booker

v. State, 32 Ark. App. 94, 97, 796 S.W.2d 854, 856 (1990), in which Booker acted as an

8 agent for the seller. Booker arranged for the transactions, arranged for the purchaser to meet

the seller, and “led the investigator along a circuitous route which ultimately led to the

apartment where the drugs were purchased.” Id. This court held that a jury could conclude

that the evidence showed that Booker was actively aiding the drug dealer in the delivery of

drugs by arranging the sales and meetings “which made the sales possible.” Id. at 99, 796

S.W.2d at 857. Similarly, Callaway arranged the drug sales and the meetings required for

CI Rogers to buy the drugs from Burr. Although there is conflicting information about

whether Callaway or Burr was in control of the pricing, when viewed in conjunction with

the other evidence, it is clear that Callaway was not a disinterested bystander merely

introducing a potential buyer to a drug dealer. Because the testimony and the evidence

before us support that Callaway was more than a simple “middleman” and helped facilitate

both of the controlled buys, we hold that the circuit court did not err in denying her motions

for directed verdict with respect to the delivery-of-methamphetamine charges.

Callaway also challenges her unlawful-use-of-communication-device conviction, see

Arkansas Code Annotated section 5-64-404(b)(Repl. 2016), which requires proof that

Callaway use such a device in “committing or in causing or facilitating the commission of

any act constituting a felony” under the controlled-substance chapter. Callaway argues that

because her actions did not constitute sufficient involvement to warrant felony convictions

on the delivery-of-methamphetamine charges; the unlawful-use-of-communication-device

charge must fail because there was no felony committed by her to facilitate with the device.

An appellant is bound by the scope and nature of the arguments made at trial and may not

change or enlarge those grounds on appeal. See, e.g., Collins v. State, 2019 Ark. 110, at 6,

9 571 S.W.3d 469, 472. Because this argument was not raised below in Callaway’s motion

for a directed verdict, it is not preserved for our review. E.g., id.

Affirmed.

VIRDEN and WHITEAKER, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Y. Yarbrough, Ass’t Att’y Gen., for appellee.