Kellensworth v. State
| Decision Date | 22 April 2020 |
| Docket Number | No. CR-19-684,CR-19-684 |
| Citation | 600 S.W.3d 622,2020 Ark. App. 249 |
| Parties | Bobby KELLENSWORTH, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Michael Kiel Kaiser and William O. "Bill" James, Jr., Little Rock, for appellant.
Leslie Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't Att'y Gen., for appellee.
Bobby Kellensworth was convicted by a Grant County Circuit Court jury on one count of possession of methamphetamine with intent to deliver (greater than 10 grams but less than 200 grams); two counts of possession of drug paraphernalia; maintaining a drug premises; endangering the welfare of a minor in the first degree; and two counts of possession of a controlled Schedule I or II substance excluding methamphetamine and cocaine (one for hydrocodone, and one for oxycodone). Kellensworth challenges the (1) sufficiency of the evidence supporting two of his convictions for possession of controlled substances—hydrocodone and oxycodone; (2) circuit court's denial of his motion to suppress—related to a discrepancy in the address noted on the affidavit and the search warrant; and (3) circuit court's refusal to allow questioning of law-enforcement witnesses about the alleged inconsistencies in the numerical address of his residence. We affirm in part and reverse and dismiss in part.
The above-listed charges arose from the execution of a search warrant on December 30, 2016, at a mobile home that Kellensworth occupied with his daughter and her mother and where drugs and related paraphernalia also were found. The search warrant was obtained approximately two weeks after two controlled drug purchases by confidential informants from Kellensworth that occurred at the same location.
On January 9, 2018, Kellensworth filed a motion to suppress evidence seized pursuant to the search warrant listing 354 Grant 52 as the place to be searched. The State responded on January 26, and a hearing on the motion to suppress was held on February 26. After taking the motion under advisement, the circuit court entered an order denying Kellensworth's motion on March 7.
Just prior to trial, the State filed a motion in limine to preclude the defense from presenting testimony or evidence related to Kellensworth's precise numerical address and/or a mailbox listing his first initial and last name and showing the numerical address as 386 Grant 52. The State argued that because the circuit court had already ruled that the search warrant was valid and all evidence seized pursuant to it was admissible, any mention of Kellensworth's numerical address or the mailbox listing his name and numerical address would confuse the jury. The circuit court granted the State's motion and specified that defense counsel could not cross-examine the State's witnesses about inconsistent physical addresses listed throughout the law-enforcement documents.
Following the close of the State's evidence at trial, Kellensworth moved for a directed verdict on all counts. Specifically, on the charges of possession of hydrocodone and possession of oxycodone, his counsel argued that mere visual confirmation was insufficient evidence that the substances were, in fact, what they were purported to be. The circuit court denied the motions. The defense renewed the motions for directed verdict at the close of all the evidence, and they were again denied. The jury found Kellensworth guilty of all seven charged offenses, and he was sentenced to an aggregate term of eighty years’ imprisonment. Kellensworth filed a timely notice of appeal, and this appeal followed.
Kellensworth was charged with one count each of possession of oxycodone and possession of hydrocodone, both Class D felonies, in violation of Arkansas Code Annotated section 5-64-419(b)(2)(A) (Repl. 2016). He argues that these convictions must be reversed because there was insufficient evidence that the substances seized were, in fact, the actual controlled substances charged. He maintains that mere visual confirmation of the substance by a forensic chemist—without testing and analysis—does not constitute substantial evidence that the substances were the actual substances charged.
At trial, the State introduced certain pills seized by law enforcement during the execution of the search warrant. Forensic chemist Dan Hedges, who was qualified as an expert without objection, testified that the five white unscored pills contained a mixture of hydrocodone
and acetaminophen and that another pink pill contained oxycodone. Hedges's crime-lab report, admitted without objection, identified the respective pills as oxycodone and hydrocodone with acetaminophen. The report noted the identification of the pills was "obtained by comparing the item's code imprint to imprint records and not by analytical testing." Hedges testified in support of the report, confirming that the pills were identified by means of a visual inspection and reference to the manufacturer's imprint code using a drug-identification database—drugs.com. He opined that from his training and experience, there was no basis to suspect the pills were other than as identified, so no chemical analysis or further testing was necessary.
Kellensworth submits that several jurisdictions have held that the mere visual identification of prescription drugs is not a sufficiently reliable method of proof in a criminal trial. See, e.g. , People v. Hard , 342 P.3d 572 (Col. App. Ct. 2014) (); State v. Ward , 364 N.C. 133, 694 S.E.2d 738, 740, 743–47 (2010) (); People v. Mocaby , 378 Ill.App.3d 1095, 318 Ill.Dec. 39, 882 N.E.2d 1162, 1166–68 (Ill. App. Ct. 2008) ().
Despite the State's claims that Hedges's expert report generated by the Arkansas State Crime Laboratory as well as Hedges's expert testimony at trial were sufficient under governing precedent to identify the substances seized as oxycodone and hydrocodone, we disagree. The State submits that the identification of pills using the imprint code was Hedges's common practice and that Kellensworth ignores existing Arkansas precedent in arguing for the adoption of holdings from extrajurisdictional cases. The State cites several cases as controlling precedent in support of its proposition that the evidence summarized above was sufficient to establish that the pills were oxycodone and hydrocodone. See, e.g. , Robertson v. State , 2018 Ark. App. 13, at 4–5, 6–7, 2018 WL 523250 (); see also Armstrong v. State , 5 Ark. App. 96, 97, 633 S.W.2d 51, 52 (1982) (). The State maintains that it is well established that even lay testimony and circumstantial evidence may be sufficient to identify a controlled substance without resorting to expert chemical analysis. E.g. , Moser v. State , 262 Ark. 329, 330, 557 S.W.2d 385, 385–86 (1977). Viewed in the light most favorable to the State, e.g. , Barfield v. State , 2019 Ark. App. 501, at 1–2, 588 S.W.3d 412, 413, the State argues there was sufficient evidence presented for the jury to determine that the pills seized were oxycodone and hydrocodone.
We disagree with the State's analysis and point out that all the cases the State cites in support of its contention that no chemical testing was required to uphold Kellensworth's convictions for possession of hydrocodone and oxycodone are distinguishable. First, Robertson is distinguishable because in that case, one of the pills at issue was chemically tested, with the remaining four pills being visually identified as the same substance. Robertson , 2018 Ark. App. 13, at 4–5. Here, no chemical testing was performed on any of the pills purported to contain oxycodone
and/or hydrocodone. Likewise, Armstrong is distinguishable because the State secured the attendance and testimony of the prescribing physician who had dispensed the pills at issue. Armstrong , 5 Ark. App. at 97, 633 S.W.2d at 52. Finally, we note that Moser , cited by the State, is distinguishable because the substance at issue in that case was not pills but rather marijuana. In Moser , lay witnesses testified that they smoked the alleged marijuana and found it to taste, smell, and have the effects similar to the marijuana they had smoked hundreds of times previously. Moser , 262 Ark. at 330, 557 S.W.2d at 335-36.
Hedges, who qualified as an expert without objection, received a degree in chemistry with a minor in biology. He has also received special training in chemistry and specific drug testing, and he receives annual training in the field of forensic chemistry. In this case, he testified regarding his performance of a variety of drug-analysis tests on various items seized during the search including a plastic bag containing a crystal substance and Ziploc baggies...
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Kellensworth v. State
...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......
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