Kellensworth v. State, 012121 ARSC, CR-19-684

Docket NºCR-19-684
AttorneyJames Law Firm, by: Michael Kiel Kaiser, and William O. Bill James, Jr., for appellant. Leslie Rutledge, Att'y Gen., by: David L. Eanes Jr., Ass't Att'y Gen., for appellee.
Case DateJanuary 21, 2021
CourtSupreme Court of Arkansas

2021 Ark. 5




No. CR-19-684

Supreme Court of Arkansas

January 21, 2021


James Law Firm, by: Michael Kiel Kaiser, and William O. "Bill" James, Jr., for appellant.

Leslie Rutledge, Att'y Gen., by: David L. Eanes Jr., Ass't Att'y Gen., for appellee.


A jury convicted Bobby Kellensworth of multiple drug crimes, including two counts of possession of a controlled substance. On appeal, Kellensworth argues insufficient evidence supported these convictions because the State's expert identified the drugs only by visual inspection. Kellensworth also argues the court should have granted his motion to suppress because the warrant misidentified his physical address. And even if the court ruled correctly on his motion to suppress, he contends he should have been able to tell the jury about the warrant's flaws. We affirm on all points.

I. Factual Background

This case started as a drug investigation. Agents Smith and Keathley, Grant County drug-taskforce officers, planned two controlled drug buys with a confidential informant. The informant called Kellensworth and asked if he would sell methamphetamine. Kellensworth said yes, so the informant drove to Kellensworth's mobile home, walked inside, bought the drugs, and left. The agents observed this first buy from their car. Days later, the informant called Kellensworth again, and the two agreed on a price for more drugs. The informant drove to Kellensworth's mobile home and bought the drugs. Agent Keathley watched this second buy from a distance.

Based on this information, Agent Smith prepared a search-warrant affidavit for Kellensworth's mobile home. Agent Smith listed Kellensworth's address as "354 Grant 52." He described the mobile home as a "light brown and tan in color trailer house" located "approximately one mile West of the intersection of Grant 52 and 53 on the North side of Grant 52." Agent Smith testified he got the physical address from an ACIC database search. The agent said he never saw a mailbox, which is how he usually learns an address. After the judge signed the warrant, both Agents Smith and Keathley went to Kellensworth's home- the location where they observed the drug buys-conducted a search, and found, among other drugs, two different sets of prescription pills wrapped in cellophane. The agents sent the pills to the crime lab for identification.

The State filed criminal charges against Kellensworth, including two counts of possession of a controlled substance. Kellensworth moved to suppress, arguing the search warrant was defective because the agents misidentified his address. Kellensworth's uncontroverted testimony was that he lived at "386 Grant 52," not "354 Grant 52" as listed on the search warrant. Kellensworth also noted his residence was 0.4 miles from the Grant 52/53 intersection rather than "approximately one mile" as described in the warrant. The circuit court denied the motion. The court ruled the wrong address did not justify suppression because both agents testified the home they searched was the same one where they observed the controlled buys.

At trial, the wrong-address issue arose again when the State moved to exclude testimony about the mistake. Kellensworth responded that the evidence would be relevant to the agents' credibility and professional competence. The circuit court excluded this testimony, concluding it would "be more confusing to [the jury] than relevant." Kellensworth could neither cross-examine the agents about the wrong address nor tell the jury about the mistake during opening and closing statements.

Another issue at trial was whether the State proved the pills were controlled substances. A forensic chemist from the Arkansas State Crime Laboratory testified as an expert on this point. The chemist had testified in over 100 cases in 30 years. The chemist said the two sets of pills recovered from Kellensworth's home were, in his professional opinion, oxycodone and hydrocodone. The chemist's conclusion followed his common practice of comparing the pills' imprint logos with an online database, The chemist said the pills did not show signs of tampering that would require further analysis: I didn't see anything in the tablet that would've indicated that maybe it was an [illicit] tablet. We are trained to look for the little marks and identification that says [sic], "Okay, this may not be what it is," in which case, I would've tested it, if it was outside of that-those [parameters].

Kellensworth moved for a directed verdict and argued the chemist's visual confirmation alone could not constitute substantial evidence that the pills were controlled substances. The circuit court denied the motion.

The jury returned a guilty verdict on all charges. Kellensworth received a cumulative sentence of eighty years in prison. On direct appeal, the court of appeals affirmed in part and reversed and dismissed in part. Kellensworth v. State, 2020 Ark.App. 249, 600 S.W.3d 622. We granted the State's petition for review and now resolve the appeal as if it had been filed here first. Kilgore v. Mullenax, 2017 Ark. 204, 520 S.W.3d 670

II. Sufficiency of Evidence

Kellensworth first argues insufficient evidence supported his controlled-substances convictions. Kellensworth highlights the chemist's reliance on a visual identification alone, rather than chemical testing, and asserts the State failed to prove the pills were indeed oxycodone and hydrocodone. To resolve this issue, we must decide whether the State must identify drugs by chemical analysis or whether circumstantial proof can satisfy the State's burden. From there, we consider whether sufficient evidence supported the verdict in this case. We hold the State met its burden and affirm the circuit court's denial of the directed-verdict motion.

In addressing Kellensworth's sufficiency challenge, we view the evidence in the light most favorable to the State and will affirm if substantial evidence, direct or circumstantial, supported the verdict. See Fink v. State, 2015 Ark. 331, at 3, 469 S.W.3d 785, 787. To be substantial, the circumstantial evidence must exclude every reasonable hypothesis other than the accused's guilt. Hartman v. State, 2015 Ark. 30, at 5, 454 S.W.3d 721, 725. The question whether circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001).

The State does not have to use chemical analysis to prove the identity of a controlled substance. For example, we have held chemical analysis was not necessary to identify marijuana. See Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977); Springston v. State, 327 Ark. 90, 936 S.W.2d 550 (1997). In Moser, the State did not chemically analyze the marijuana; rather, it presented lay testimony from witnesses who said the item they bought from the defendant and then smoked had been marijuana. 262 Ark. at 330, 557 S.W.2d at 386. We concluded "this lay testimony was competent evidence." Id. We reaffirmed this principle twenty years later in another marijuana case, holding "lay testimony may provide substantial evidence of the identity of a controlled substance, even in the absence of expert chemical analysis." Springston, 327 Ark. at 92, 936 S.W.2d at 551.

We need not treat controlled substances differently when they are pills instead of marijuana. Many states follow this approach. California provides one example. See People v. Veamatahau, 459 P.3d 10 (Cal. 2020). There, as here, the expert identified a pill- alprazolam-as a controlled substance by comparing the pill's imprint logo with a database. Id. at 14. The expert said this method was "generally accepted in the scientific community." Id. The California Supreme Court held this identification was proper and constituted circumstantial evidence that the defendant possessed the drug identified. Id. at 23.

Likewise, in a Kentucky case, two qualified and experienced chemists visually identified pills as alprazolam by comparing the imprint logos with a pharmaceutical database. Jones v. Commw., 331 S.W.3d 249, 251 (Ky. 2011). The court recited its blackletter law that "chemical testing of an alleged controlled substance is not required to sustain a conviction" and noted "courts around the nation have...

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