Milburn v. State

Decision Date03 October 1977
Docket NumberNo. 2,No. CR77-90,CR77-90,2
Citation555 S.W.2d 946,262 Ark. 267
PartiesRoss Allen MILBURN, Appellant, v. STATE of Arkansas, Appellee
CourtArkansas Supreme Court

Skillman, Durrett & Davis, West Memphis, for appellant.

Bill Clinton, Atty. Gen. by Robert J. Govar, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellant was convicted of possession of marijuana with intent to deliver and on appeal we reversed. Milburn v. State 260 Ark. 553, 542 S.W.2d 490 (1976). Upon retrial the court, sitting as a jury, found appellant guilty of the same offense and assessed his punishment at nine years' imprisonment and a fine of $15,000. Appellant contends that the evidence was insufficient "to identify beyond a reasonable doubt that a green vegetable material" introduced into evidence was marijuana and, therefore, he was entitled to a directed verdict. Of course, on appellate review, it is firmly established that we consider only that evidence which is most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (1975).

Here the issue is whether the substance seized from appellant was marijuana. Approximately nine pounds of green vegetable material were found in the trunk of appellant's car and on his person by a police officer. This officer testified that, based on his training and experience, the material was marijuana. The material was analyzed at the Arkansas Department of Health, using three tests; i. e., microscopic, Duquenois-Levine and thin layer chromatography. The state's expert witness testified that these tests by him produced positive results for marijuana. However, appellant's expert witness maintains these tests are individually and collectively insufficient to identify "beyond a reasonable doubt" the material as marijuana. Appellant recognizes that it is usually concluded by forensic analysts that the microscopic test, combined with the Duquenois-Levine color test, is specific for marijuana. Admittedly, appellant's expert witness did not test the material as to whether it was marijuana and could not confirm or refute that it was marijuana. It was for the court, sitting as a jury, to resolve any conflicts in the evidence and the credibility of the witnesses. In our view there is ample substantial evidence, when viewed most favorable to the appellee, to support the verdict.

However, we are not unmindful of appellant's argument that the results of the tests made by the state's expert witness were inadmissible hearsay or a violation of the best evidence rule. The state's expert witness testified that the contraband he tested at the state laboratory was identical to the marijuana sample afforded the laboratory by the U. S. Drug Enforcement Administration. Appellant contends that since the state's expert witness did not test the reference standard himself or have personal knowledge that it was marijuana, his testimony as to the results of his tests was based upon what others had told him and, therefore, inadmissible hearsay. In Ark. State Highway Comm. v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966), where a proper foundation is laid, we said: "It has repeatedly been held that expert or lay testimony is competent even though it is based wholly or partly upon hearsay." Further, when an expert witness customarily relies upon reports or the standards in the practice of his profession, his testimony is...

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21 cases
  • Campbell v. State
    • United States
    • Arkansas Court of Appeals
    • March 12, 2014
    ...Sales, 304 Ark. 224, 800 S.W.2d 431 (1990); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983); Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). We cannot say that the circuit court, having heard the essence of what Boyd's testimony would be, and being mindful of the ......
  • Swink & Co., Inc. v. Carroll McEntee & McGinley, Inc.
    • United States
    • Arkansas Supreme Court
    • July 9, 1979
    ...Automobile Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W.2d 595. Only the evidence favorable to appellee is to be considered. Milburn v. State, 262 Ark. 267, 555 S.W.2d 946; Neal v. State, 259 Ark. 27, 531 S.W.2d 17. Treated in that manner, the evidence Herman Jordan testified: In transactions ......
  • Boling v. Gibson, 78-146
    • United States
    • Arkansas Supreme Court
    • July 9, 1979
    ...S.W.2d 189; Canal Insurance Co. v. Hall, 259 Ark. 797, 536 S.W.2d 702; Jones v. Hardesty, 261 Ark. 716, 551 S.W.2d 543; Milburn v. State, 262 Ark. 267, 555 S.W.2d 946; Enzor v. State, 262 Ark. 545, 559 S.W.2d 148; McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d In some of these ca......
  • Smith v. Smith, CA
    • United States
    • Arkansas Court of Appeals
    • May 17, 1989
    ...to support the finding of the trier of fact. Harris v. State, 15 Ark.App. 58, 689 S.W.2d 353 (1985); See also, Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977). Appellant appears to challenge the sufficiency of the evidence by arguing that the sentence was excessive "particularly when ......
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