Kellogg v. State, CA

• Decision Date: 18 March 1992
• Docket Number: No. CA,CA
• Citation: 827 S.W.2d 166,37 Ark.App. 162
• Parties: Charles KELLOGG, Appellant, v. STATE of Arkansas, Appellee. CR 90-291.
• Court: Arkansas Court of Appeals

Page 166

827 S.W.2d 166

37 Ark.App. 162

Charles KELLOGG, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 90-291.

Court of Appeals of Arkansas Division II.

March 18, 1992.

Lane H. Strother, Mt. Home, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

ROGERS, Judge.

The appellant, Charles Kellogg, was convicted in a jury trial of two counts of delivery of a controlled substance, marijuana, and one count of delivery of a controlled substance, cocaine. He was sentenced to terms of five years for each of the convictions involving the delivery of marijuana, and was sentenced to twenty years in prison for the delivery of cocaine; all sentences were ordered to be served consecutively. Appellant advances six issues for the reversal of his convictions. We find no reversible error, and accordingly we affirm.

As his third issue, appellant contends that the trial court erred in not dismissing the charge of delivery of cocaine because the prosecution failed to prove that a "useable amount" of cocaine was delivered. We must discuss this issue first, as when there is a challenge to the sufficiency of the evidence, the appellate court is required under the decision in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), to review that point prior to considering other allegations of trial error. When the sufficiency of the evidence is at issue on appeal, we review the evidence in the light most favorable to the appellee, and affirm if there is any substantial evidence to support the verdict. Brown v. State, 35 Ark.App. 156, 814 S.W.2d 918 (1991). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation and conjecture. Alford v. State, 33 Ark.App. 179, 804 S.W.2d 370 (1991).

At trial, Troy Combs identified himself as a paid informant who had been working in cooperation with the Arkansas State Police and the Baxter County Sheriff's Department. He testified that appellant came to his apartment on January 9, 1990, and offered to arrange a sale of marijuana. Combs said that during this conversation appellant informed him that there was also a gram of cocaine for sale. Mr. Combs pretended that he might have a friend who would be interested in buying the cocaine as well as the marijuana, and Combs privately alerted the Baxter County Sheriff's Department from a telephone upstairs. After this phone call, Combs told appellant that he had to leave to go get the money from his friend. Combs then went to the sheriff's office where he was given money and was equipped with a body microphone. While there, Combs telephoned appellant at Combs' apartment and they discussed that a half-ounce of marijuana would cost $90 and that the gram of cocaine would cost $120. Combs returned to his apartment and gave appellant $210. Appellant left and returned about an hour later with the marijuana and cocaine.

Combs further testified that during this exchange appellant told him that more marijuana would be available in several days, and that it would cost only $35 for a quarter of an ounce. Combs related that appellant came to his apartment on January 12, 1990, and that a deal was arranged whereby he would purchase an ounce of marijuana from appellant for $140. As with the first transaction, the sheriff's department furnished the buy money and Combs was again fitted with a microphone. Appellant came to Combs' apartment and received the money, and appellant left and returned sometime later with the marijuana.

In support of his argument that the evidence is insufficient to sustain the conviction for the delivery of cocaine, appellant relies on the testimony of Nick Dawson, a chemist with the state crime lab. He testified that the purported gram of cocaine submitted to him for analysis actually weighed .583 grams, and that it tested positive for cocaine and lidocaine. He described lidocaine as a non-controlled substance, and said that it is commonly used by persons selling cocaine as a cutting agent to lessen the purity of cocaine so as to increase the seller's profit. On cross-examination, Dawson stated that he did not analyze the sample to determine the respective percentages of cocaine and lidocaine. He said, however, that it would require at least ten milligrams of cocaine to test positive in each of the three screening tests he performed, and a lesser amount for the mass spectrometry and thin layer chromatography tests he also conducted. On the basis of this testimony, appellant contends that the prosecution failed to prove that a useable amount was delivered. He cites Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), as authority for his position.

In Harbison v. State, supra, our supreme court held that possession of a controlled substance must be of a measurable or useable amount to constitute a violation of Ark.Code Ann. § 5-64-401. The court reasoned that legislation criminalizing the possession of controlled substances was aimed at preventing use and trafficking of prohibited substances, and then concluded that the possession of a trace or less than useable amount does not contribute to either of those purposes. Unlike Harbison, however, this is a case involving the delivery of a controlled substance, which is defined as "the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship." Ark.Code Ann. § 5-64-101(f) (1987). We have held that the useable amount standard announced in Harbison has no application to cases of delivery. Gregory v. State, 37 Ark.App. 135, 825 S.W.2d 269 (1992).

In Harbison, the court was influenced by decisions from other jurisdictions. One of those decisions was State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962), where the Arizona court held that a useable amount of a controlled substance must be found in order to constitute the offense of possession. In a subsequent case, however, the Arizona Supreme Court rejected the argument that the state must prove that a useable amount was sold in a conviction for the sale of a narcotic drug. The court said:

Appellant's position is without merit. The charge of possession of a narcotic drug, as in other crimes, requires a union of act and intent. As a matter of law the intent necessary to establish the crime of possession is not present when the amount is so minute as to be incapable of being applied to any use, even though it might be identified as narcotics by chemical analysis. But where the crime charged is the sale of a narcotic drug, the required intent is established by the transfer of any amount when accompanying circumstances indicate an intent to sell.

State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739 (1966) (citation omitted). See also State v. Cortez, 101 Ariz. 214, 418 P.2d 370 (1966). Accord Reyes v. State, 480 S.W.2d 373 (Tex.Crim.App.1972); People v. Case, 270 Cal.App.2d 712, 76 Cal.Rptr. 111 (1969).

In Harbison, the court was concerned with the offense of possession and the lack of criminal culpability when the evidence reveals only infinitesimal amounts of a controlled substance. On the other hand, trafficking in illegal substances is one of the condemned evils recognized by the supreme court in its decision. There was evidence here that appellant sold a quantity of cocaine in exchange for $120. This constitutes substantial evidence to sustain appellant's conviction for the delivery of a controlled substance. Consistent with the holding and rationale of Harbison, it was not incumbent upon the state in these circumstances to produce evidence of a useable amount.

Appellant also argues that the trial court erred in failing to exercise discretion in ordering his sentences to be served consecutively. He bases this argument on a handwritten notation found on the judgment and commitment order which states, "sentence [sic] to run consecutively because these are separate jury verdicts indicating jury's desire for separate sentences, and [the] court deems it appropriate." Citing Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), and our decision in Wing v. State, 14 Ark.App. 190, 686 S.W.2d 452 (1985), appellant argues that this notation indicates that the trial court did not exercise discretion in imposing consecutive sentences. We disagree.

The decision as to whether multiple sentences are to be served concurrently or consecutively is left to the sound discretion of the trial judge and the exercise of that discretion will not be altered on appeal unless it is clearly shown to have been abused. Patton v. State, 281 Ark. 36, 660 S.W.2d 939 (1983). In Acklin v. State, supra, the supreme court found the exercise of that discretion to be lacking when the trial judge imposed consecutive sentences either because of his view that the defendant had asked for a jury trial without a defense, or because it was the trial judge's standard practice to order consecutive sentences. In Wing v. State, supra, we reversed and remanded for resentencing when the trial judge's comments indicated that he had imposed consecutive sentences based on his perception of the jury's intention and his declaration that he rarely deviated from the jury's wishes. In remanding that case, we noted the supreme court's statement in Acklin that the choice between concurrent and consecutive sentences lies with the trial judge, not the jury, and we said that the trial judge should make it clear that it is his or her discretion being exercised when entering sentences. We believe the trial judge made this clear in this case, as he specifically stated that he "deemed it appropriate" for appellant's sentences to be served consecutively. This is manifestly indicative of an exercise of discretion, and does not reflect the application of an inflexible rule or rigid...