Strong v. State

242 S.W.3d 620, 368 Ark. 23, 2006 Ark. LEXIS 583
CourtSupreme Court of Arkansas
DecidedNovember 9, 2006
DocketCR 05-4414
StatusPublished
Cited by2 cases

This text of 242 S.W.3d 620 (Strong v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strong v. State, 242 S.W.3d 620, 368 Ark. 23, 2006 Ark. LEXIS 583 (Ark. 2006).

Opinions

Jim Gunter, Justice.

Appellant, Aaron Strong, was convicted in the Drew County Circuit Court of possession of cocaine with intent to deliver. The jury sentenced appellant to forty-one years in the Arkansas Department of Correction pursuant to Arkansas Code Annotated § 5-64-401(a)(l)(i) (Supp. 2003). We hold that the trial court did not err in denying appellant’s motion for directed verdict, and we affirm.

Alerted by California drug enforcement officials in July of 2004, authorities in Monticello intercepted a United Parcel Service (UPS) package. The package, which contained a crock pot, a can of chili, Velveeta cheese, and 520 grams of cocaine, was discovered with a search warrant supported in part by a drug-dog alert. Sergeant Michael Todd Daley of the Arkansas State Police testified that the can of chili and the Velveeta cheese were probably included to make the package appear to be a dip-making kit to divert authorities from looking in the crock pot for illegal substances.

After discovering the cocaine, the police planned a controlled delivery to the address on the package listed as Eric Webb, 512 Roosevelt Court, Monticello. The officers then removed all but 12.7914 grams of cocaine from the package. They placed the smaller amount of cocaine back in the crock pot and sealed the box to be delivered to Eric Webb. Criminal investigator Kenneth Whitmore then went to 512 Roosevelt Court to deliver the package. When appellant answered the door, Officer Whitmore, disguised as a UPS delivery man, asked for Eric Webb. Appellant told Officer Whitmore that he was not Mr. Webb but that he would get Mr. Webb, who was inside the home. Appellant returned with a man in a wheelchair who claimed to be Mr. Webb. The man in the wheelchair1 told Officer Whitmore that he was unable to sign for the package because he could not write at the time due to an injury of his hands. He then gave appellant the authority to sign for the package. Officer Whitmore placed the package on the counter and then left the home.

Appellant immediately exited the back of the house with the package in hand. Officer John Carter was waiting to arrest him. Officer Carter announced to appellant that he was a Monticello policeman and that appellant needed to put the box on the ground. Appellant was arrested, and the package containing the contraband was confiscated by Officer Daley of the Monticello Police Department. Appellant was taken to the police station, where he signed a Miranda waiver and was questioned about the package and his involvement in the transaction.

At trial, evidence was presented, without an objection, to show that appellant had the intent to deliver the 520 grams of cocaine in the package when it arrived in Dermott rather than the 12.7914 grams that the officers left in the package. This evidence included a prior offense from the Ashley County Circuit Court in July 2002, where appellant was charged with conspiracy to possess with the intent to deliver cocaine. Further, there was no indication, at the time of arrest, that appellant had knowledge that any of the cocaine had been removed from the package. It was reasonable for the jury to conclude that he believed that the 520 grams were still in the crock pot when the package was delivered. At the conclusion of the State’s evidence, appellant moved for directed verdict. The court denied the motion. On June 1, 2005, the jury returned a guilty verdict and sentenced appellant to forty-one years in the Arkansas Department of Correction. The judgment and commitment order was entered on June 3, 2005. Appellant filed his notice of appeal on June 20, 2005. Appellant now appeals.

We review a motion for directed verdict as a challenge to the sufficiency of the evidence. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006) (citing Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004)). We have repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. (citing Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002)). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id.

For his sole point on appeal, appellant argues that the trial court erred when it denied his motion for directed verdict. Specifically, appellant contends that the State did not present sufficient evidence to convict him of intent to deliver the 520 grams of cocaine rather than the 12.7914 that he actually possessed. Appellant further asserts he was sentenced under the wrong statute. In response, the State argues that appellant had the intent to possess and deliver 520 grams of cocaine and that his sentence was proper. We affirm the conviction and sentence.

The issue is whether there was sufficient evidence to support appellant’s conviction that he had possessed with intent to deliver 520 grams, the amount shipped, or whether the conviction can be only for 12.7914 grams, the amount that was actually delivered to him. The proper sentencing guideline is determined by the amount of cocaine for which a defendant is criminally responsible. Arkansas Code Annotated § 5-64-401 (a)(l)(i) (Supp. 2003) states:

(i) Any person who violates this subsection with respect to [a] controlled substance classified in Schedules I or II, which is a narcotic drug or methamphetamine, and by aggregate weight, including adulterants or diluents, is less than twenty-eight grams (28g.), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000). For all purposes other than disposition, this offense is a ClassY felony....
A controlled substance classified in Schedules I or II, which is a narcotic drug or methamphetamine, and by aggregate weight, including adulterants or diluents, is four hundred grams (400g.), or more, is guilty of a felony and shall be imprisoned for not less than forty (40) years, or life, and shall be fined an amount not exceeding two hundred and fifty thousand dollars ($250,000). For all purposes other than disposition, this offense in a Class Y felony.

Id.

In Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), we addressed the issue of intent in narcotic delivery cases. There, we said that in determining whether the evidence of appellant’s guilt was substantial, the evidence, with all reasonable inferences to be drawn from it, is viewed in the light most favorable to the state. Id. at 235, 534 S.W.2d at 516 (citing Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974)). When the evidence is sufficient, we cannot say that the inference that appellant had joint or constructive possession of the heroin is unreasonable. Either is sufficient. Id. (citing Smith v.

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Strong v. State
242 S.W.3d 620 (Supreme Court of Arkansas, 2006)

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Bluebook (online)
242 S.W.3d 620, 368 Ark. 23, 2006 Ark. LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strong-v-state-ark-2006.