Jake Norwood v. State of Arkansas , 2022 Ark. App. 319 ( 2022 )

Cite as 2022 Ark. App. 319ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-21-544
JAKE NORWOOD Opinion Delivered September 7, 2022
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
APPELLANT [NO. 30CR-20-63]
V. HONORABLE CHRIS E WILLIAMS,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
WAYMOND M. BROWN, Judge
A Hot Spring County Circuit Court jury convicted appellant Jake Norwood of
possession of a controlled substance, methamphetamine, and sentenced him as a habitual
offender to ten years’ imprisonment. On appeal, appellant contends that the circuit court
erred by: (1) admitting the crime-lab report over his objection; (2) denying his motion for
directed verdict based on him knowingly and purposely possessing methamphetamine; and
(3) denying his directed verdict motion based on the failure to allow confrontation of
witnesses by not requiring Detective Sears to testify. We affirm.
Officers with the Malvern Police Department made contact with appellant on
February 28, 2020, after they were dispatched to 1708 Evans Street due to multiple 911 hang
ups. Appellant appeared to be under the influence of a controlled substance because he was
fidgeting and continuously moving around. Appellant was searched, and a blue pouch was
found in appellant’s left jacket pocket. The pouch contained a clear bag that had a crystal-
like substance in it. Appellant was arrested and transferred to the Malvern Police
Department. While there, the suspected drugs were found to weigh 0.9 grams and a field
test was positive for methamphetamine.
Appellant’s jury trial took place on May 28, 2021. Deputy Dillion Ledbetter testified
that he arrested appellant on February 28, 2020, while working for the Malvern Police
Department. He stated that when he arrived at the dispatched address, he saw appellant
waving for him. He said that appellant seemed to be under the influence of a controlled
substance. Appellant was subsequently patted down, and a blue pouch was found in
appellant’s front left jacket pocket.1 Deputy Ledbetter stated that when he asked appellant
if the pouch contained “dope,” appellant responded “yep.” He testified that the evidence
was taken to the police station, weighed, and field tested. He stated that he placed the
evidence in an envelope, filled out the chain-of-custody form on the envelope, and placed it
in an evidence locker to be transported to the Arkansas State Crime Laboratory. Deputy
Ledbetter stated that only the “Chief of Police and the one CID detective” have access to the
evidence locker. He subsequently identified his handwriting on the outside of the envelope.
He stated that the drugs, along with the container it was in, weighed 0.9 grams.
1
Appellant was on parole and had a search waiver.
2
Detective Christopher Savage of the Malvern Police Department testified that he
filled out the affidavit and built the case file in this case. He also stated that he would be the
person who transports evidence to the crime lab if necessary. He said that the packing slip
on the outside of the envelope would indicate the contents of the package, the date the
evidence was taken, and from whom. However, on cross-examination, he testified that he
did not transport the evidence to the crime lab in this case. He stated that Detective Sears
had transported the drugs to the crime lab.
Sammy Williams, a senior forensic chemist at the Arkansas State Crime Laboratory,
testified that he received the evidence in this case and tested it for the presence of a
controlled substance. He identified his initials and other identifiers on the envelope at trial.
He said that he weighed the evidence before running any tests on it. He testified that the
drugs had a weight of 0.5512 grams and that it was positive for methamphetamine. When
the State attempted to admit the lab report, appellant unsuccessfully objected based on “the
lack of chain of custody as to the drugs themselves.” Upon further questioning, Mr.
Williams stated that the difference between the two weights could be attributed to “the
packaging being weighed and not being weighed.” He said that he weighed the substance
outside of the package.
Appellant renewed his objection when the State attempted to introduce the drugs
into evidence. The following colloquy then took place:
DEFENSE: I renew my objection. In addition, if Detective Sears is the
person who delivered those drugs to the Crime Lab he is a
3
necessary witness and the Defense has a constitutional right to
confront and cross examine every witness.
THE COURT: Confrontation issue is a different issue. But this issue is whether
or not it can be introduced. The Court’s going to allow it to be
introduced but they’ll have to be introduced -- the drug itself will
remain in the possession of the court reporter. A photograph
will be substituted for the jury to view what was actually tested
by the chemist at the Crime Lab. Your objection is overruled.
After the State rested, the circuit court entertained the following in its chambers:
DEFENSE: Move for directed verdict on the charge of possession of
controlled substance. The State has failed to present a prima
facie case from which a reasonable jury could conclude that Jake
Norwood was either knowingly or purposely in possession of
methamphetamine.
Further, the testimony was inadequate and violated Mr.
Norwood’s rights under the Constitution to confront and cross
examine his witnesses in that Detective Sears was not called to
testify. And, therefore, the chain of custody is broken and Mr.
Norwood has been deprived his right to cross examine Detective
Sears as a witness.
THE COURT: Okay, Ms. Rock?
THE STATE: Your Honor, there’s been ample testimony to prove each of the
elements of the offense with which Mr. Norwood is charged.
There’s been testimony that the substance tested and removed
from Mr. Norwood’s person was indeed methamphetamine,
that it’s a controlled substance, that it weighs less than two
grams, which would qualify it to be charged as a class D felony.
Deputy Ledbetter also testified that when he patted down the
defendant he inquired about the pouch. He confirmed it was
his and confirmed there was dope in it. So there’s not any
question that Mr. Norwood knew he had controlled substance
in his pocket. It came out of the jacket he was physically wearing
at the time.
4
As to the chain of custody under Tatum v State, as well as other
Arkansas case law, it’s not necessary for every person who could
have conceivably come into contact with the drug sample on its
way back and forth from the Crime Lab to testify. There’s
certainly been adequate testimony and assurance that the drugs
that were taken from Mr. Norwood are the very drugs that were
tested at the Crime Lab and the same ones that have been
brought back here today and the results introduced.
THE COURT: Okay. Motion for directed verdict is denied. The Court finds
that there’s substantial compliance with the maintaining of the
drugs. The drugs were actually sealed and placed in a lock-down
facility under, I think he said C, locker C. That is the Crime
Lab locker where drugs that are confiscated are sealed off. It’s
clearly identifiable by Ledbetter who confiscated the drugs.
Clearly identified as a package that was sealed up to be delivered
to the Crime Lab. Submission sheet reflects that Sears delivered
those drugs to the Crime Lab. The Crime Lab opened the drug.
Mr. Williams, Sandy [sic] Williams from the Crime Lab testified
that he opened them up and then took all the drugs out that
were sealed and weighed them and then tested them. Three
tests confirmed it was methamphetamine. It was
methamphetamine in the pre-stage where the officer took it and
tested it by a field test. Confirmed to be positive for meth. It
was sent to the Crime Lab. Confirmed by the Crime Lab that
it was positive for meth. The drugs -- there is a factual issue for
the jury to make determination of concerning the drugs and
who they were in possession of. And they were confiscated from
the person of Mr. Norwood. Therefore, that factual issue they
must make determination of.
It is not a factual issue concerning the issue of whether or not
the defendant got to cross examine the defendant, I mean, the
State’s potential witness. The fact that Sears delivered the drugs
to the Crime Lab that were sealed and were unsealed by the
Crime Lab, there is no proof whatsoever that there’s been
anything altering concerning that. There was clear enough
information for substantial compliance by the State of Arkansas
in that the drugs were previously tested on a field test as positive
for meth. They were positive from the Crime Lab. They were
5
the same drugs that were inside the package that was cut open
in the courtroom today that were tested by the Crime Lab.
The Court finds substantial compliance and his right to cross
examine Sears would be of no significance to this case. Sears
had nothing to do with the case other than to take the drugs
from the Malvern Police Department and deliver them to the
Crime Lab for purpose of testing. There’s no proof whatsoever
been presented that can be disclosed to this Court that in any
way that Officer Sears would have caused those drugs to be
jeopardized in any way and, therefore, substantial compliance.
Motion for directed verdict is denied. Cross examining him
would not be able to give any other new information in this case.
Appellant then rested without putting on any evidence. He renewed his directed-
verdict motions. The jury subsequently found appellant guilty of possessing a controlled
substance, methamphetamine, and sentenced him as a habitual offender to ten years’
imprisonment. Appellant’s timely appeal followed.
A motion for directed verdict at a jury trial is a challenge to the sufficiency of the
evidence.2 In reviewing a challenge to the sufficiency of the evidence, this court determines
whether the verdict is supported by substantial evidence, which is evidence that is forceful
enough to compel a conclusion one way or the other beyond speculation or conjecture. 3
The evidence is viewed in the light most favorable to the verdict, and only evidence
supporting the verdict will be considered.4 Circumstantial evidence may provide a basis to
2
Baker v. State, 2019 Ark. App. 515, 588 S.W.3d 844.
3
Id.4
Id.6
support a conviction if it is consistent with the defendant’s guilt and inconsistent with any
other reasonable conclusion.5 Whether evidence excludes every other hypothesis is left to
the jury to decide.6 The credibility of witnesses is an issue for the jury and not the court. 7
The trier of fact is free to believe all or part of any witness’s testimony and may resolve
questions of conflicting testimony and inconsistent evidence.8
Although appellant’s sufficiency arguments are his second and third points on appeal,
we address them first because double-jeopardy concerns require a review of the sufficiency
of the evidence prior to a review of any asserted trial errors.9
Appellant argues that the circuit court erred by denying his motion for directed
verdict based on him knowingly and purposely possessing methamphetamine. Appellant’s
argument is nothing more than a challenge to Deputy Ledbetter’s credibility. However,
issues of credibility are left to the sound discretion of the jury. 10 In this case, the jury was
free to believe that appellant confirmed to Deputy Ledbetter that the pouch found in his
jacket pocket contained drugs. Therefore, we affirm this point.
5
Id.6
Id.7
Id.8
Id.9
See A.M. v. State, 2021 Ark. App. 418.
10
Baker, supra.
7
Next, appellant argues that the circuit court erred by denying his motion for directed
verdict based on the failure to allow confrontation of witnesses by not requiring Detective
Sears to testify. More specifically, appellant contends that the circuit court erred by denying
his motion for directed verdict because he was unable to confront Detective Sears at his trial.
This argument is not preserved for our review. When the State attempted to introduce the
drugs into evidence, appellant objected based on the lack of proof of chain of custody and
his inability to confront Detective Sears. However, the circuit court failed to make a ruling
on the confrontation issue, stating that it was a different issue. To preserve a Confrontation
Clause argument on appeal, a defendant must obtain a ruling from the circuit court.11 Here,
appellant failed to get a ruling on his confrontation argument at the time of his initial
objection; therefore, his directed-verdict motion encompassing the argument was not
enough to preserve it for our review.
However, assuming arguendo that the directed-verdict motion was enough to preserve
the argument, we would affirm. In denying appellant’s directed-verdict motion, the circuit
court found that cross-examination of Detective Sears would be of no significance and would
not give any other new information because Detective Sears had nothing to do with the case
other than to take the drugs from the Malvern Police Department to the crime lab for the
purpose of testing. Essentially, the circuit court found that Detective Sears was not a
necessary witness for purposes of confrontation in this case. Given the facts, we agree.
11
Bertrand v. State, 363 Ark. 422, 214 S.W.3d 822 (2005).
8
Appellant also argues that the circuit court erred by admitting the crime-lab report
into evidence over his objection. During the testimony of Mr. Williams, appellant objected
to the State’s attempt to introduce the crime-lab report into evidence. More specifically,
appellant objected to the lack of proof of the chain of custody as to the drugs. The circuit
court overruled the objection, having found substantial compliance by the State. Appellant
argues that this ruling was in error.
The purpose of establishing a chain of custody is to prevent the introduction of
evidence that has been tampered with or is not authentic.12 Authentication requirements
are satisfied if the circuit court, in its discretion, concludes that the evidence presented is
genuine and that, in reasonable probability, it has not been tampered with or altered in any
significant manner.13 It is not necessary that the State eliminate every possibility of
tampering.14 Minor uncertainties in the proof of chain of custody are matters to be argued
by counsel and weighed by the jury, but they do not render the evidence inadmissible as a
matter of law.15 Proof of the chain of custody for interchangeable items like drugs or blood
needs to be more conclusive.16
12
Hawkins v. State, 81 Ark. App. 479, 105 S.W.3d 397 (2003).
13
Raquel-Dieguez v. State, 2015 Ark. App. 626, 475 S.W.3d 585.
14
Matlock v. State, 2019 Ark. App. 470, 588 S.W.3d 152.
15
Hawkins, supra.16
Duff v. State, 2018 Ark. App. 112, 540 S.W.3d 738.
9
Appellant argues that the circuit court erred by receiving into evidence contraband
that was not properly authenticated due to a marked difference in the two weights testified
to by Deputy Ledbetter and Mr. Williams. He also contends that the State failed to establish
authenticity when it did nothing more than trace the route of the envelope. Because
appellant failed to specifically challenge the weight discrepancy before the circuit court, that
portion of the argument is not properly before us. The circuit court was satisfied that the
drugs tested were the same drugs that had been found in appellant’s jacket pocket. Deputy
Ledbetter testified that he placed the drugs in the envelope, sealed it, filled out a chain-of-
custody form on the envelope, and put it in the evidence locker to be transported to the
crime lab. Detective Savage testified that Detective Sears took the envelope to the crime lab.
Mr. Williams testified that he received the sealed envelope and opened it to test its contents.
He then sealed it again so it could be returned to the evidence locker, placing his initials on
the envelope. All three witnesses testified that the envelope admitted at trial was the same
envelope that contained the drugs taken from appellant. The circuit court was satisfied that
the envelope’s contents had not been tampered with and found that there was substantial
compliance with the chain-of-custody requirements.17 We find no error and affirm.
Affirmed.
VIRDEN and GRUBER, JJ., agree.
17
To the extent appellant contends that the evidence was inadmissible because he was
unable to confront Detective Sears, it is not preserved because appellant failed to get a ruling
on that issue when he objected.
10
Gregory Crain, for appellant.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.
11