Conley v. State, CA CR 10–1209.

• Decision Date: 05 October 2011
• Docket Number: No. CA CR 10–1209.,CA CR 10–1209.
• Citation: 2011 Ark. App. 597,385 S.W.3d 875
• Parties: Vernell Renold CONLEY, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 597

385 S.W.3d 875

Vernell Renold CONLEY, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 10–1209.

Court of Appeals of Arkansas.

Oct. 5, 2011.

Jason P. Kearney, Fayetteville, for appellant.

Dustin McDaniel, Atty. Gen., Rachel M. Hurst, Office of Atty. Gen., Little Rock, for appellee.

CLIFF HOOFMAN, Judge.

[Ark. App. 1]Appellant Vernell Conley appeals his convictions for delivery of a controlled substance (crack cocaine), possession of a controlled substance (marijuana), and possession of drug paraphernalia. Conley argues that the evidence was insufficient to support his convictions and that the trial court erred in permitting prosecutorial misconduct and in failing to provide a curative instruction. We find no error and affirm.

Conley was tried before a jury on August 26, 2010, on the charges of delivery of a controlled substance (crack cocaine), possession of a controlled substance with the intent to deliver (marijuana), and possession of drug paraphernalia. Detective Jason French testified that the drug task force set up a controlled buy after receiving intelligence that Conley was selling cocaine. Undercover officers met Conley at a park on the night of September 15, 2009, and purchased cocaine from him. Detective Adam Howard had previously contacted Conley over the phone to arrange the buy, and he recognized Conley's voice upon meeting him. [Ark. App. 2]Howard also recognized Conley from a photograph that was shown to him before the buy. Howard was equipped with an audio recording and listening device. The audio recording was played in court, and Howard explained how the transaction occurred. Howard did not know the make and model of Conley's car at the time of the buy, but he was later told it was a Ford Focus. Detective Andy Lee posed as Howard's brother and was in the passenger side of Howard's car. Lee heard and saw the transaction and got a good look at Conley's face, although Conley never exited his car. Detective French heard the transaction through audio surveillance. He testified that the officers purchased three rocks, which was about one gram of cocaine.

Officers followed Conley back to where they had previously determined he lived. The vehicle seen at the buy, a red Ford Focus, was the vehicle in Conley's driveway. Conley was not arrested until November 6, 2009, at which time officers brought him to his residence and law enforcement searched the home. Officers found marijuana and a set of digital scales in the home. A forensic chemist for the Arkansas State Crime Lab testified that the amount of cocaine purchased was 0.5813 grams, and the amount of marijuana found was 32.5 grams.

Conley moved for a directed verdict. He argued that the State failed to prove beyond a reasonable doubt his delivery of the cocaine. He also argued that the State failed to meet its burden of proof on the charge of possession with intent to deliver marijuana because there was no specific evidence as to the quantity of marijuana, and therefore, there was no presumption of intent to deliver. Conley also argued that the State never proved that he had possession of the marijuana or the drug paraphernalia. The court denied his motion. Conley [Ark. App. 3]did not call any witnesses in his defense, and he was subsequently found guilty of delivery of a controlled substance (crack cocaine), possession of a controlled substance (marijuana), and possession of drug paraphernalia. The jury found Conley not guilty of possession of a controlled substance with intent to deliver (marijuana).

At the sentencing phase of trial, the State introduced certified judgments showing that Conley had previously been convicted of four or more felonies and was thus a habitual offender. James Tucker, Conley's former parole officer, testified that in his opinion, Conley's chances of reform were very slim. Tucker stated that Conley was a career drug dealer and intended on doing that as long as he was released. Monica Conley, Conley's wife, testified that Conley handled the day-to-day operations of maintaining their home and caring for their children while she worked during the day. Conley was sentenced to sixty years' imprisonment for his conviction for delivery of a controlled substance (crack cocaine), six years' imprisonment for his conviction for possession of a controlled substance (marijuana), and thirty years' imprisonment for his conviction for possession of drug paraphernalia. The possession offenses were directed to run concurrently to each other and consecutively to the offense of delivery of a controlled substance. Conley filed a timely notice of appeal.

Conley first argues that the trial court erred in refusing to grant his motion for directed verdict. A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Id. Substantial [Ark. App. 4]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.

Conley argues that the evidence introduced at trial to show that he sold crack cocaine to an undercover officer was inaccurate, inconsistent, and unreliable to the point that it could not compel a conclusion, without resorting to speculation and conjecture, that he committed the offense of delivery of a controlled substance. First, he challenges the evidence as to his identity. He points out that the controlled buy took place on a dark, rainy night; that none of the detectives had met him in person prior to the buy; and that one officer incorrectly referred to him as “Vernon” minutes prior to the buy. He also argues that none of the detectives were able to get a make or model of the car he allegedly occupied or a description of his clothing or general appearance. Conley next complains about the audio recording of the controlled buy, arguing that the suspect's voice on the recording was almost entirely inaudible and that the audible parts contained no references to drugs or illegal activities. He argues that the jury was left with the detectives' interpretations of what the suspect was actually saying and the meaning of code words. Conley also argues that no money was found on him or during the search of his home; that he was never found to be in possession of crack cocaine; and that there was no testimony from other witnesses that he was known to sell crack cocaine.

The State argues that Conley did not make these arguments below, and therefore, they are not preserved for appellate review. For his directed-verdict motion on this charge, [Ark. App. 5]Conley argued that “the State has failed to prove beyond a reasonable doubt the Defendant's delivery of said cocaine,” and that “there has been no showing of a prima facie case of delivery of a controlled substance crack.” The State contends that Conley did not argue at trial that the evidence of delivery was inconsistent, inaccurate, or unreliable, and he did not challenge the proof of his identity.

A motion for directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient. Ark. R.Crim. P. 33.1(c) (2011). A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency...