Christian v. State, CR

• Decision Date: 05 December 1994
• Docket Number: No. CR,CR
• Parties: Larry C. CHRISTIAN, Appellant, v. STATE of Arkansas, Appellee. 94-293.
• Court: Arkansas Supreme Court

Page 717

889 S.W.2d 717

318 Ark. 813

Larry C. CHRISTIAN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-293.

Supreme Court of Arkansas.

Dec. 5, 1994.

Jeffrey C. Rogers, Smackover, for appellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Larry C. Christian, was convicted and sentenced as an habitual offender to two life imprisonment terms for two counts of delivery of crack cocaine. He contends the Trial Court erred in denying his motion for a directed verdict. He also argues the Trial Court erred in refusing to instruct the jury on justification and agency arising from his claim that he was only facilitating a drug buy by a law enforcement officer. Other points of appeal are that the Trial Court erred in concluding that he had three prior felony convictions and in denying an oral continuance motion. We find no merit in any of these contentions and affirm.

On December 30, 1992, Officer Fred Witherspoon and a confidential informant drove to an area of El Dorado known as the "Thunder Zone" where many illegal drug transactions have occurred. Larry Christian approached their car and began speaking with the informant, a person with whom he was acquainted. The informant requested $100.00 worth of crack cocaine. Mr. Christian took the money, an act which was videotaped by a camera hidden in the car, and walked away from the car. He returned to the car with a "rock" of crack cocaine which he handed to Officer Witherspoon who then gave Mr. Christian an additional ten dollars.

Officer Witherspoon testified that the next day he and the informant returned and asked Mr. Christian to get them two hundred dollars worth of crack cocaine. Mr. Christian took the money and returned with a larger rock-like substance which turned out to be cocaine. Officer Witherspoon also testified that at no time during these transactions was there any mention of the fact that he was a police officer.

Mr. Christian was charged with two counts of delivery of a controlled substance. Some months later the information was amended by adding an accusation that Mr. Christian was an habitual offender with two prior felony convictions. Still later, on the morning of the trial, the State orally amended the information to allege three prior felony convictions.

1. Directed verdict

Mr. Christian testified, but he did not rebut the evidence contained on the videotape of the first drug transaction or the direct testimony of Officer Witherspoon with respect to the second one. He nonetheless contends there was not sufficient evidence of his guilt to have gone to the jury and thus the Trial Court should have granted his motion for directed verdict. He made the motion at the conclusion of the State's case-in-chief and at the end of the evidence he presented, but he failed to renew the motion after the rebuttal testimony presented by the State.

The failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case waives any question pertaining to the sufficiency of the evidence. Ark.R.Crim.P. 36.21(b). Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991). Cases in which rebuttal evidence has been presented by the State and in which we have declined to consider a sufficiency of the evidence argument due to failure to renew a directed verdict motion at the conclusion of the case include Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994), and Walker v. State, 240 Ark. 441, 399 S.W.2d 672 (1966). Although we have not previously had before us a case in which the motion was renewed at the conclusion of the defendant's case-in-chief but not after rebuttal evidence, the plain language of the rule requires the latter, and we interpret the rule strictly. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). Accordingly, we decline to consider the argument.

2. Instructions

a. Justification

Mr. Christian argues he was entitled to an instruction based on the defense of justification as provided in Ark.Code Ann. § 5-2-603 (Repl.1993). The statute provides a defense to one who reasonably believed the accused conduct was required or authorized to assist a public servant in the performance of his or her duty.

The Trial Court denied the instruction on the ground that it was not correct or proper. One reason was the testimony of Mr. Christian. He was asked if he knew prior to the first transaction that Fred Witherspoon was a police officer. He answered, "No, I did not." Later, during the State's cross-examination, Mr. Christian stated it wasn't until later that he "had found out that [his] hunches [concerning the fact that Mr. Witherspoon was a police officer] were right." Mr. Christian also stated that he was trying to accommodate a friend, the informant, and that "it wasn't against the law for me to get him a rock." In a letter written by Mr. Christian while he was in jail, he referred to Officer Witherspoon as the informant's brother.

Neither his own testimony nor any other evidence supported Mr. Christian's claim of justification. His testimony tended, instead, to refute that defense. Thus, it was not error for the Trial Court to refuse to give the instruction. When the evidence does not support the giving of an instruction, it is not error to refuse it. See Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992).

b. Agency

As to the requested agency instruction, Mr. Christian relies primarily on Daigger v. State, 268 Ark. 249, 595 S.W.2d 653 (1980). In that case, the evidence showed only that police officers tried to buy LSD from the defendant but could not agree on a price. At that point, the defendant introduced them to a couple from whom the officers did purchase LSD. We held the defendant's conduct could not be considered "delivery" of LSD as contrasted with the facts in Curry v. State, 258 Ark. 528, 527 S.W.2d 902 (1975), where we held that a defendant who took money and returned with drugs was not erroneously convicted of delivery. We stated that under the definition of "deliver" contained in Ark.Stat.Ann. § 82-2601(f) (Supp.1973), "it makes no difference, on a motion for directed verdict, whether the transferor acts as an agent of the purchaser or the seller. The act is condemned anytime the transfer is 'in exchange for money or anything of value.' "

The current definition of "deliver," found in Ark.Code Ann. § 5-64-101 (Repl.1993), is the same in every respect material to this case as in the earlier statute, the later version having added only a reference to delivery of a "counterfeit [drug] substance." We conclude it would not matter if Mr. Christian was Officer Witherspoon's agent. There was no error in refusal of the agency instruction.

3. Prior felonies

Mr. Christian contends the Trial Court erred by finding he had been convicted of a felony on three prior occasions. He also argues the Trial Court erred by allowing the State to amend the information to add the allegation of the third prior felony just before his trial and then declining his request for a continuance.

Mr. Christian disputes the use, for habitual offender purposes, of a 1985 conviction for possession of marijuana with the intent to distribute for which he received a sentence of ten years imprisonment and a $10,000 fine. He contends that conviction was not of a felony because the Trial Court which convicted him of that offense found it was an unclassified misdemeanor, and the law of the case doctrine precludes any further consideration of it.

The law of the case doctrine would preclude a trial court on remand or...