Hunter v. State , 2017 Ark. App. LEXIS 263 ( 2017 )

Cite as 2017 Ark. App. 256
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-577
Opinion Delivered April 26, 2017
MICHAEL HUNTER APPEAL FROM THE COLUMBIA
APPELLANT COUNTY CIRCUIT COURT
[NO. 14 CR-13-60]
V.
HONORABLE DAVID W. TALLEY,
STATE OF ARKANSAS JR., JUDGE
APPELLEE
AFFIRMED AS MODIFIED;
REMANDED TO CORRECT THE
SENTENCING ORDER
BRANDON J. HARRISON, Judge
In 2013 the State charged Hunter with one count of engaging in a continuing
criminal enterprise. Specifically, it alleged that Hunter had “violated a felony provision of
the Uniform Controlled Substance Act, namely, the Delivery of a Controlled Substance-
Cocaine and Methamphetamine.” The State claimed that the violation was part of a
continuing series of two or more felony offenses: delivery of cocaine and delivery of
methamphetamine. It further alleged that Hunter acted in concert with five or more people
when he committed “these violations” and that Hunter received substantial income from
the operation. The conduct was alleged to have occurred between 2006 and 2013. The
State later amended its criminal information to include a habitual-offender enhancement,
Ark. Code Ann. § 5-4-501(a)(1) (Supp. 2007).
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The case went to a bench trial on 8 April 2014 before the Columbia County Circuit
Court, and a sentencing order was entered on 28 April 2015. The sentencing order reflects
that the circuit court convicted Hunter of one count of engaging in a continuing criminal
enterprise and sentenced him to 70 years’ imprisonment in the Arkansas Department of
Correction and an additional 10 years’ suspended imposition of sentence (SIS) for that count.
Hunter appeals the April 2015 sentencing order and the related conditions of the SIS.
I. The Evidence Against Hunter
We first address Hunter’s challenge to the sufficiency of the evidence. He argues
that the State did not prove every element of Arkansas’s continuing-criminal-enterprise
statute beyond a reasonable doubt and goes through each of the twenty-one trial witnesses’
testimony. The standard of review for whether the verdict is based on sufficient evidence
is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier
of fact could have found that the State proved the essential elements beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307 (1979). Direct or circumstantial evidence may
provide substantial evidence to support a verdict. Campbell v. State, 2009 Ark. 540, 354
S.W.3d 41. Substantial evidence is that evidence which is of sufficient force and character
that it will, with reasonable certainty, compel a conclusion one way or the other, without
resorting to speculation or conjecture. Id. Circumstantial evidence alone may constitute
substantial evidence. Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). When
circumstantial evidence alone is relied upon to support a conviction, it must indicate the
accused’s guilt and exclude every other reasonable hypothesis. Id. Only when
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circumstantial evidence requires the fact-finder to speculate and conjecture is it insufficient
as a matter of law. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991).
A. The Primary Felony Offense
Arkansas Code Annotated section 5–64–405 (Supp. 2013), which is the continuing-
criminal-enterprise statute, provides that
(a) A person commits the offense of engaging in a continuing criminal
enterprise if he or she:
(1) Violates any provision of this chapter that is a felony, except §§ 5–
64–419 and 5–64–441; and
(2) The violation is a part of a continuing series of two (2) or more
felony offenses of this chapter, except §§ 5–64–419 and 5–64–441:
(A) That are undertaken by that person in concert with five (5)
or more other persons with respect to whom that person
occupies a position of organizer, a supervisory position, or any
other position of management; and
(B) From which that person obtained substantial income or
resources.
Because no exception applies in this case, the first element the State must prove under
Ark. Code Ann. § 5–64–405 is that Hunter committed a felony under the Controlled
Substances Act. See Hughey v. State, 310 Ark. 721, 723, 840 S.W.2d 183, 184 (1992). We
call this the “primary felony offense.” And we infer from the record as a whole that the
primary offense occurred when Hunter delivered 0.8048 grams of methamphetamine to
Rachel Cole in 2007. (We must infer this because the State does not pointedly identify the
primary offense for statutory-analysis purposes.)
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The State says it proved that Hunter was “engaged in at least two instances of the
Class Y felony delivery of controlled substance, one Class C felony delivery of a controlled
substance, one Class C felony delivery of a counterfeit substance, and multiple counts of
operating a drug premises.” Failing to identify a primary felony offense, the State says only
that the evidence showed that Hunter “committed the requisite underlying felonies and
these felonies were, no doubt, part of a series of a CCE.” For due-process reasons, we reject
the State’s use of underlying offenses (against Hunter) that were not named in the criminal
information. We also remind the State that a prosecutor’s closing arguments should not be
cited as substantial evidence supporting Hunter’s conviction. Lawyers’ arguments are not
evidence. Ligon v. Stilley, 2010 Ark. 418, 371 S.W.3d 615.
Moving on . . . Hunter argued in his motions to dismiss, as he does here, that “at
most” the State proved that he introduced callers to the person who eventually sold drugs
and that there is no credible evidence that he delivered methamphetamine—only that he
“may have possessed” it. Simply possessing a controlled substance is not a qualifying offense
under the continuing-criminal-enterprise statute. See Ark. Code Ann. § 5–64–405 and –
419.
1. The trial testimony
The court’s review of the record shows the following. Rachel Cole testified at trial
as a State’s witness. She said that she worked with law-enforcement officer Michael
Caldwell in 2007 and that she twice tried to buy drugs from Hunter. The first time she
called Michael Hunter he told her to go to the Ponderosa, a trailer house that Hunter used.
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There, she bought drugs from Derek Hunter, the defendant’s brother, 1 using money that
Officers Wilson and Caldwell provided. Cole explained that she had known Michael Hunter
all her life, recognized his voice on the telephone, and that during their telephone
conversation she and Michael had discussed the price of drugs and what she wanted. She
further explained that she gave Derek Hunter $100 at the Ponderosa and that he handed
her a rock-like substance, which she later gave to Officer Caldwell. Cole also testified about
another time she called Michael Hunter, and he told her to go to a trap house on Dempsey;
there she bought drugs from Cadetric Box. During the course of the direct examination,
the State stipulated that Cole didn’t “know what she bought. She’s not a chemist.”
On cross-examination, Cole said that these purchases occurred in September 2007
and that she had started working with Officers Caldwell and Wilson in exchange for the
dismissal of an aggravated-robbery charge. She clarified that when she talked to Michael
Hunter she told him that she wanted to buy some crack cocaine and that “he told me to
meet him at the Ponderosa.” When asked if Michael Hunter sold her any drugs, she said
“No.” Cole explained that the transaction was recorded because she was wearing a wire.
No recording was introduced as evidence. 2
Officer Michael Caldwell testified that he had worked narcotics for the Magnolia
Police Department since 2007, that he was also currently assigned to an FBI task force, and
1
Other witnesses identified Derek as Michael Hunter’s mother’s boyfriend. So it
seems there are two Dereks in this case: Derek Hunter and Derek Coleman.
2
A bench conference was held where the court ruled that the missing-recording issue
was “moot” after hearing arguments that the recording had been lost or destroyed.
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that he was an agent with the Drug Task Force. Officer Caldwell stated, in part, that the
Ponderosa was located at 131 Columbia 56 and that it was a “location where Michael
Hunter and other individuals dealt drugs.” His conclusion was based on police interviews
of numerous people. He explained that he and Officer Robert Wilson met with Rachel
Cole on 19 September 2007. They told Cole to go straight to the Ponderosa and come
back to a prearranged location. Officer Caldwell said they provided buy money to Cole.
Cole returned to the prearranged location and gave the officers “the suspected
methamphetamines.” Officer Caldwell explained that the suspected meth was delivered to
the Arkansas State Crime Lab and identified State’s Exhibit 13 as the lab-submission report
he had signed. He connected State’s Exhibit 13 with State’s Exhibit 14—the latter exhibit
being the crime-lab report showing that suspected methamphetamine submitted was in fact
0.8048 grams of methamphetamine dimethyl sulfone. Hunter expressly waived on the
record any right he may have had that a “crime lab person” testify during trial and agreed
to the crime-lab report being admitted as evidence against him. Officer Caldwell testified
that he did not arrest Hunter in 2007, but continued to surveil him for the next six to seven
years. According to Officer Caldwell, Michael Hunter’s usual mode of operation was to
use a third party to deliver the drugs.
The Chief of Police of Waldo, Arkansas, Robert Philson, testified that he knew
Hunter personally and spoke with Hunter on 28 March 2010 and asked him about some
arrests that had been made the day before. During the conversation, Philson said that
Hunter admitted that he sold drugs to take care of his family and “put some women on the
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side and pay bills” and that he was arrested with “large sums” of cash in Greenville, Texas,
as he was journeying to buy drugs in Dallas.
FBI Special Agent Forrest Avery Benham testified that he talked to Hunter after a
search warrant had been executed in March 2013 at Hunter’s residence in Waldo, Arkansas.
Hunter told Agent Benham that he would obtain approximately one-half to one ounce of
methamphetamine weekly from a family member who was a supplier and that “he did not
feel comfortable trafficking in narcotics with just anyone.” Based on his conversation with
Hunter, Agent Benham estimated Hunter had been earning about $250 per week for the
past three years from selling a one-half ounce of meth. Hunter indicated that, before that
three-year period, he had obtained narcotics from a man in Dallas, Texas. Agent Benham
testified that Hunter showed him where the drugs he sold were hidden at the house on 205
Angela.
On cross-examination, Agent Benham said Hunter had indicated that he received
between thirteen and twenty-seven grams of methamphetamine a week and that Agent
Benham considered that a “fair amount of narcotics” for Waldo, Arkansas, although Hunter
indicated to Agent Benham that he was “just trying to get by and that he had financial
challenges.” On redirect examination, Agent Benham said he estimated Hunter had earned
a total of $39,000 in tax-free income over the past three years.
Another witness for the State, Barry Poindexter, testified that he met Hunter at a
John Deere dealership in Magnolia, Arkansas around the end of 2004 or 2005. He explained
that he developed a business relationship with Hunter by buying methamphetamine from
him and then reselling it. He started off with small amounts, and as time went by, worked
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up to a quarter ounce (seven grams). Poindexter testified that between 2007 and 2012 he
bought drugs from, or was given drugs by, Hunter more than twenty times. He said that
these buys took place “everywhere,” including the Ponderosa. Poindexter explained, in
part, that the Ponderosa was a trailer house that Hunter owned. He also said that whenever
a drug transaction occurred, wherever it was, it would begin with a call to Hunter, although
it was not always to the same telephone number. He said that he had dealt with twenty to
thirty different individuals, but mainly with Derek Coleman and Ricky Biddle, following a
telephone call to Hunter inquiring about drugs. He said that when he would call Hunter,
Hunter would tell him to call another number and that other number “was him [meaning
Hunter.]” They would talk “business and prices” and Hunter would tell Poindexter where
to wait, and “they would bring me the drugs.” He confirmed that he was “recruited to be
a drug dealer for D.D. Hunter.” 3
2. The testimony and the continuing-criminal-enterprise statute
The statute in force in 2007 when the methamphetamine delivery to Cole was
alleged to have occurred provided that the State must prove that Hunter knowingly or
purposely delivered methamphetamine. Ark. Code Ann. § 5–64–401 (Supp. 2007).
“Deliver” or “delivery” means 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. §
3
Several witnesses said Hunter is also known as D.D.
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5-64-101(6). Delivery of less than 28 grams of methamphetamine was classified as a Class
Y felony for “any purpose other than disposition.” Ark. Code Ann. § 5-64-401(a)(1)(A)(i).
As we said earlier, Hunter argues that he did not deliver the drugs. But the circuit
court, sitting as the fact-finder, could have reasonably found that Hunter constructively
transferred methamphetamine to Cole. Although Hunter did not meet Cole when
delivering the drugs—nor was he physically present when the meth was transferred—he did
participate in the drug transaction by arranging the price and the location for Cole to buy
methamphetamine. Cole arrived at the Ponderosa, a known drug location, and received
drugs from Derek at the price and location Hunter had prearranged. This circumstantial
evidence, combined with Hunter’s admission to law-enforcement agents that he was a drug
dealer, and Poindexter’s testimony about the Ponderosa and Hunter’s method of operation,
is substantial evidence that Hunter constructively delivered methamphetamine to Cole on
19 September 2007.
B. Continuing Series of Two or More Felony Controlled Substance Offenses
The second element of the continuing-criminal-enterprise statute the State must
prove is that the course of illicit conduct spanned a definite period of time; and a “series” is
established by proof of three or more related violations. Hughey, 310 Ark. at 723–24, 840
S.W.2d at 184 (internal citation omitted). The Arkansas Supreme Court has said that
“[u]nder the wording of our statute element two is met if there are two felonies under the
act in addition to the felony committed by the defendant.” Id. So the State had to prove
that the primary offense was part of a continuing series of two or more other felony-drug
offenses. Again, Hunter’s sole argument on this element is that the State failed to prove that
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he delivered methamphetamine. We hold that there was sufficient proof that Hunter
constructively delivered methamphetamine to Anna Estes in 2009 and Donnell Burnell in
2011.
1. Delivery to Anna Estes
Anna Estes testified that she was an unwilling witness for the State. The caveat
having been spoken, she then told the court that she went to the Ponderosa numerous times
to buy drugs from either Hunter or through one of his associates. She also said that she had
a sexual relationship with Hunter and was herself a drug addict. According to Estes, she
would text Hunter, he would tell her where to go, and someone would deliver drugs to her
car. Estes said that she went to the Ponderosa “a lot” between 2007 and 2009 to buy drugs.
On 6 October 2009, Estes was “busted” by Officer Caldwell. She reportedly told
Caldwell that she got the drugs from D.D. in Waldo and was delivering them to a friend,
Greg Fuller. Estes explained that she was selling drugs at the time to support her habit and
that she would hold the drugs for 3–4 days before she sold them. Although she was arrested
for selling methamphetamine, Estes received a “break” with a reduced charge and addiction
treatment.
On cross-examination, Estes explained that the break she received from the
prosecuting attorney did not include testifying against Michael Hunter. When she was
arrested by Officer Caldwell, Estes was also selling ecstasy pills, though she had bought them
from someone other than Hunter. Estes clarified that she was arrested in October 2009 but
did not make a deal with the prosecuting attorney until 23 June 2011, which included nolle
prossed charges. Estes told the court that when she purchased drugs from Hunter, “they
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took place anywhere,” including a hamburger place or in the middle of the street in Waldo.
Prior to the transactions, Estes would communicate through text messaging with a person
she thought to be Hunter, though she was not certain it was him. Hunter never appeared
at any of the drug transactions, according to Estes, and he never personally handed her drugs.
She also denied that Hunter sent her to a location to buy drugs.
On redirect examination, Estes explained that Hunter provided her with a number
to call or text for drugs and that he would text her a new number when he changed phones.
On recross, she stated that she did not know for sure who gave her the phone number that
she testified Michael Hunter had given her. But on redirect she said that she had no reason
to believe it was anyone other than Hunter.
Officer Caldwell testified that Hunter used tracphones and that he used other
people’s phones in the course of his drug dealing. Officer Caldwell stated that law
enforcement identified one phone that was actually registered to Hunter. He explained that
on 6 October 2009 he came into contact with a man named Greg Fuller during a search of
a residence in Magnolia, Arkansas. Fuller had a phone and was in the process of arranging
a purchase of methamphetamine and ecstasy from Anna Estes. Officer Caldwell assumed
Fuller’s identity and exchanged texts with Estes wherein she agreed to deliver ecstasy and
methamphetamine to a certain location. Officer Caldwell surveilled the area and when
Estes arrived, he arrested her.
According to Officer Caldwell, Estes told him that she had gotten the
methamphetamine from Michael Hunter and the ecstasy from another individual. Caldwell
then placed the recovered substances into evidence and submitted it to the Arkansas State
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Crime Lab. He testified that State’s Exhibit 11 is a lab-submission sheet that is consistent
with the numbers that go with the laboratory report that is State’s Exhibit 12. State’s Exhibit
12 shows that one of the substances recovered was 1.4142 grams of methamphetamine and
the other substance was four pills of benzylpiperazine (BZP). Anna Estes is listed as the
suspect on the report.
When Hunter allegedly delivered the meth to Estes in October 2009, the State had
to prove that Hunter knowingly or purposely delivered the methamphetamine. Ark. Code
Ann. § 5-64-401 (Supp. 2009). “Deliver” or “delivery” means 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(6).
The State put on sufficient proof that Hunter constructively delivered
methamphetamine to Estes. In addition to his admissions to law-enforcement agents about
being a drug dealer that we have already recited, the circuit court heard that Estes frequently
went to the Ponderosa (and other locations) to buy drugs as directed by Hunter to buy
drugs. It was up to the circuit court to credit Estes’s testimony as it saw fit to do. While
circumstantial, there was sufficient proof that it was Hunter who constructively transferred
methamphetamine to Estes; and Estes, in turn, attempted to resell the meth to Greg Fuller
but was instead arrested by Officer Caldwell, who recovered the methamphetamine. We
reject Hunter’s argument that he cannot be guilty of delivering methamphetamine to Estes
because he did not physically deliver the drugs.
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2. Delivery to Donnell Burnell
Donnell Burnell, a felon, testified for the State that he agreed to make buys for Agent
Crawford of the Drug Task Force. He recalled some work involving Michael Hunter,
whom Burnell calls D.D. He testified that he knew Hunter’s voice on the phone and had
known Hunter for years. Burnell called Hunter, and Hunter told him to meet him at the
Lee Biddle Trailer Park. Burnell explained that Cory Briggs had given him Hunter’s
number and that the call was about buying some hard meth or “ice.” When Burnell arrived
at the Lee Biddle Trailer Park, he saw Hunter there but did not speak with him. Corey
Briggs handed Burnell “ice,” and Burnell handed Briggs $305 that Officer Crawford had
given him.
On cross-examination, Burnell said that the entire conversation he had with Hunter
on the phone was recorded. Burnell later explained that the first telephone call he made to
Hunter requesting “ice” was not recorded, but a second call was.
Detective Shawn Crawford testified that he recruited Burnell to assist him in the
Hunter investigation. Detective Crawford explained that Burnell was “into some trouble”
himself for delivering controlled substances. Crawford said that one phone call Burnell
made was not recorded. Burnell was furnished with electronic-surveillance equipment and
$325 of buy money from the sheriff’s buy fund and sent “on his way.”
After Burnell bought the drugs, he met Detective Crawford at a prearranged location
and returned the recording equipment and suspected narcotics. Detective Crawford placed
the drugs Burnell gave him in an evidence bag and sealed it. The crime-lab submission
sheet for that evidence bag, which Detective Crawford signed, was admitted as State’s
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Exhibit 2, without objection. The offense date is listed as 08/17/2011 and the suspect’s
name is listed as Corey Briggs. State’s Exhibit 7, a crime-lab report, was introduced without
any testimony about it and without objection. State’s Exhibit 7 has the same case numbers
and offense date (08/17/2011) as State’s Exhibit 2 and reflects that the substance was 3.2348
grams of dimethyl sulfone methamphetamine.
Officer Caldwell testified that he had listened to an audio tape of Donnell Burnell
and believed the voices on the tape to be Burnell’s and Michael Hunter’s. State’s Exhibit 5
is a recorded call made on 17 August 2011. The recording begins with “[a]pproximate time
is 5:54. Sergeant Michael Caldwell with Detective Shawn Crawford. The C.I. [Burnell] is
about to make a phone call to D.D.” The call is essentially about Hunter directing Burnell
on how to get to Lee Biddle Trailer Park. There is no mention of drugs.
State’s Exhibit 6 is the August 17 video recording. It captured a conversation
between Burnell and Corey Briggs about money and driving past the trailer park. A
conversation between Burnell and Sergeant Caldwell and Detective Crawford follows.
Burnell says that D.D. “won’t come out that trailer” and that “he sent Corey to handle it
man.” The officers confirmed on the recording that D.D. (Hunter) arranged for the drugs
to be delivered to Burnell by Corey Briggs and that he was present at the trailer.
Here, Hunter again argues that he did not deliver methamphetamine to Burnell.
Under the statute in place when Hunter allegedly delivered drugs to Burnell, a person who
delivers two grams (2g) or more but less than ten grams (10g) by aggregate weight, including
an adulterant or diluent, of methamphetamine or cocaine upon conviction is guilty of a
Class B felony. Ark. Code Ann. § 5-64-422 (Supp. 2011). The definition of delivery
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remains unchanged: “Deliver” or “delivery” means 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(6).
We hold there was sufficient evidence that Hunter constructively delivered
methamphetamine to Burnell in August 2011. There was evidence that Burnell called
Hunter, and Hunter negotiated the price and location. Burnell showed up at the location
(Lee Biddle Trailer Park). Corey Briggs then exchanged methamphetamine for $305 from
the sheriff’s buy fund. These facts, combined with the testimony and other admissions we
have discussed earlier, is substantial evidence of a constructive delivery of methamphetamine
from Hunter to Burnell, through Corey Briggs.
We therefore affirm on the “second element” of the offense under Hughey—that the
State sustained its burden of proving a continuing series of two or more felony controlled-
substance offenses when it proved that Hunter, at a minimum, constructively delivered
methamphetamine to Anna Estes and Donnell Burnell. 4
C. Organizer, Supervisor, or Some Management Role
The State must also prove Hunter donned the role of organizer, supervisor, or some
managerial position in the criminal enterprise and did so in concert with at least five
4
We do not discuss the timing of the deliveries, how the deliveries relate to one
another, and whether they meet the test of being a “continuing series.” Hunter argued the
topic below, but he abandoned it on appeal. The sole argument on this element is that the
State failed to prove that he delivered a controlled substance.
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additional people. Ark. Code Ann. § 5-64-405(2)(A). On appeal, Hunter argues, as he did
in his motion to dismiss at the close of all the evidence that,
[e]xcluding the law enforcement officers, the State paraded a veritable
rogue’s gallery of sorry characters before the trial court. Nearly all of them
testified only because the State forced them to do so; nearly all of them are
drug addicts, convicted felons, or both; and none of them offered any credible
evidence that . . . any of the persons from whom they purchased drugs acted
in concert with, or under the direction or influence of Mr. Hunter.
In Leavy v. State, the supreme court summarized the management provisions of the
continuing-criminal-enterprise statute this way:
The government need not establish that the defendant managed five
people at once, that the five acted in concert with each other, that the
defendant exercised the same kind of control over each of the five, or even
that the defendant had personal contact with each of the five. In essence the
management element is established by demonstrating that the defendant
exerted some type of influence over another individual as exemplified by that
individual’s compliance with the defendant’s directions or instruction.
Leavy v. State, 314 Ark. 231, 237, 862 S.W.2d 832, 834 (1993) (internal citation omitted).
1. More evidence on Hunter as CEO
In addition to the testimony we have recited already, more trial testimony is relevant
to this leadership element. Officer Todd Dew of the Magnolia Police Department testified
that he was present when a search warrant was executed on 21 March 2013 at Hunter’s
residence. He explained that he found a total of $1,860 in Hunter’s pants and wallet. Harry
Washington of the Hunt County Sheriff’s Office in Texas testified that he encountered
Hunter as a passenger during a traffic stop on I-30 in April 2011. Hunter had $5,600 in his
tennis shoe. On 2 June 2011, Officer Washington encountered Hunter again while
conducting consensual searches on a Greyhound bus. Hunter was carrying $10,984 in his
crotch area and that money was seized by the State of Texas.
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Ashley Ellis testified that she called Hunter in 2011 and told him that she wanted
some methamphetamine and met him at the Ponderosa. When she arrived, Michael Hunter
left the Ponderosa, and Derek Hunter came in and “gave [her] the dope.”
Saquita Easter, one of Hunter’s girlfriends, testified that Hunter took her to hotels
and on trips to Dallas where they stayed and shopped, that Hunter drove a Suburban with
rims, and that $20,000 to $30,000 in cash was hidden in the vehicle. Easter said that Hunter
would give the cash to a man named Claudie Miller when they got to Dallas. Special Agent
Forrest Avery Benham testified that he knew about Claudie Miller’s case and that Miller
had been indicted by the U.S. Attorney’s Office and convicted of narcotics trafficking.
Easter also testified that the Ponderosa was where most of the drug transactions took
place. She said that Derek 5 “basically pretty much brought D.D. the money back” during
the drug transactions. She confirmed that John Armstrong would do the same thing—“[h]e
had took something down the road and pretty much just threw it out the window” and
would bring back money to Michael Hunter. Ditto for Dexter Greene. On cross-
examination, Easter confirmed that Hunter would give drugs to Armstrong to deliver and
Armstrong would return with money. The “same thing” would happened with Mr.
Coleman and Mr. Green. She confirmed that she only saw this happen with those three
people.
5
It is unclear during this direct examination which Derek—Derek Hunter or Derek
Coleman—Easter is referring to. On cross-examination it is apparent that Easter refers to
Derek Coleman.
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John David Woodard testified that he would call Hunter and tell him he was looking
for something [methamphetamine] and Hunter would say “Okay. Well, go to the Dairy.”
Woodard would go to the Dairy and somebody would meet him there, usually Derek
Coleman, and Woodard would hand over $100 and receive one gram of meth. On cross-
examination, Woodard testified that Hunter would never tell him who to go see, “[h]e
would just say to go someplace and then somebody would come.”
Jessica Giles said under oath that she received drugs from Hunter in exchange for
money or sex on a regular basis. On 15 December 2011 she helped Officer Crawford with
his investigation by wearing a recording device and was given $100 in buy money. Giles
went to the Ponderosa, and Hunter tried to get her to have sex with him; she refused and
put money on a counter. According to Giles, Hunter “got nervous” and told her to sit in
the car. A man who called himself J.J. got in the car with her and told her that Hunter had
sent him there to give her drugs. State’s Exhibits 8 and 9 were recordings Giles made at
Officer Caldwell’s request. These exhibits showed that she ultimately bought the drugs
from J.J. Walker.
Officer Caldwell testified that he had surveilled the now infamous Ponderosa using
confidential sources who would arrive there, get out with vehicles still running, go inside
the Ponderosa, and come out a few seconds later, and report illegal activity.
2. The CEO element and pulling it all together
No single witness (1) testified that Hunter organized, supervised or managed a
criminal enterprise and (2) identified five people who acted in concert with him. But there
was testimony by Saquita Easter that Hunter exerted control over three people: John
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Armstrong, Dexter Greene, and Derek Coleman. And Barry Poindexter agreed that Hunter
had recruited him as a drug dealer. That’s four people.
The State’s case was additionally based on circumstantial evidence from which the
circuit court could reasonably infer that Hunter was the leader of a drug operation. FBI
Special Agent Forrest Avery Benham testified that Hunter was a dealer who moved a “fair
amount of narcotics” in the area. He based his opinion on the drugs found in Hunter’s
residence and Hunter’s confession to him. Law-enforcement officers also found large
amounts of cash on Hunter’s person in a traffic stop and on a Greyhound bus, which they
implied was consistent with the practice of drug dealers. Easter said that Hunter would take
Miller $20,000 to $30,000 in Dallas. Agent Benham testified that Miller was later convicted
of drug trafficking. What’s more, the State offered circumstantial evidence that
methamphetamine buyers would call Hunter, and Hunter would direct his various dealers
when and where to meet the buyers with the drugs. The State established this through the
testimony of its witnesses Rachel Cole, Donnell Burnell, Anna Estes, Jessica Giles, John
David Woodard, and Ashley Ellis, among others.
Here, the circumstantial evidence and direct testimony was sufficient to support the
court’s conclusion that Hunter exerted some type of influence over five (or more) people.
Their compliance with his directions or instructions make the case. In the end, we are
satisfied that the evidence sufficiently supports the conclusion that Hunter’s drug operation
included at least Derek Hunter, Derek Coleman, J.J. Walker, John Armstrong, Dexter
Greene, Cadetric Box, Barry Poindexter, and Corey Briggs—and Hunter was the CEO.
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D. Hunter Received Substantial Income From Drug Deals
As a final point, Hunter argues that the State did not prove beyond a reasonable
doubt that he realized substantial income or resources from an ongoing narcotics enterprise.
We disagree.
The State presented testimony from Hunter’s past romantic relationships. Ashley
Martin testified that she traded sex for drugs with Hunter and became pregnant by him in
2009. She said that he had a car-detail shop at one time, that he worked, but she did not
ever see him there. According to Martin, Hunter provided about $500–$600 in five years
to support the child she had with him. Kellie Dover testified that Hunter would give her
money from time to time—“$20 here and $30 there”—to support the child they had
together. She said that Hunter had fifteen kids and was not “rolling in a lot of money.”
Dover also testified that Hunter did not have a job. Ava Brown testified that she had a child
with Hunter in 2007 and that he has helped her some financially—“$100, $150 here and
there.” Taiwashan Satterwhite testified that she and Hunter lived together and had
biological children together. According to Satterwhite, Hunter worked at John Deere “a
long time ago,” but she never saw his paycheck and that he did not pay more than $200 to
$300 a month to help support her and the children. On cross-examination, she said that he
provided her with a used car and that he filed tax returns but did not receive refunds because
“child support took it.”
Dr. Lupetha Rasheed testified in Hunter’s defense. She said that Hunter was a part
of a social entrepreneurship project, and he worked at a detail shop that she opened in
January 2013. She explained that Hunter made deposits for her business, averaging between
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$2,000 and $3,000 per month, and that the State had wrongly seized some of that money
in a civil-forfeiture action but she could not get the money back because it was being held
as evidence.
Given all of the testimony we have recited previously, we hold that the State’s proof
was sufficient. The record as a whole supports the conclusion that Hunter was unemployed
or underemployed during most of the seven-year period at issue; yet he was shown to have
had large amounts of cash at various times. Hunter himself admitted receiving income from
selling methamphetamine, and Officer Avery testified that he thought Hunter received
around $39,000 in three years. Easter testified that she saw Hunter with up to $30,000 cash
at one time, and he was stopped by law enforcement on a Greyhound bus with over $10,000
on his person for an unexplained reason. Dr. Rasheed’s body shop was not opened until
2013, the year Hunter was arrested on the continuing-criminal-enterprise charge, and it was
undisputed that he had not been employed at John Deere for a long time. Yet from 2007
to 2013 he provided financial gifts and support to his girlfriends and numerous children and
had large amounts of cash on his person at various times. The circuit court could reasonably
infer that Hunter derived substantial income from selling methamphetamine, and the State
provided sufficient evidence to indicate Hunter’s guilt and exclude every other reasonable
hypothesis. We affirm on this point.
II. The Circuit Court’s Sentence
Sentencing in Arkansas is statutory. Gray v. State, 2014 Ark. 417, 443 S.W.3d 545
(per curiam). No sentence may be imposed unless a statute so permits. Atkins v. State, 2014
Ark. 393, 441 S.W.3d 19. The supreme court has said that an illegal sentence may be
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corrected by the appellate courts on their own initiative. Cook v. State, 46 Ark. App. 169,
878 S.W.2d 765 (1994) (citing Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994)). A
void or illegal sentence is one that fails on its face. Lovelace v. State, 301 Ark. 519, 785
S.W.2d 212 (1990). If a sentence is within the limits set by statute, however, then it is legal.
Grissom v. State, 2013 Ark. 417. We have an illegal sentence in this case that requires
correction.
A. Hunter’s Illegal Sentence
The plain language of the appealed sentencing order shows that Hunter was given
70 years’ imprisonment in the Arkansas Department of Correction and 10 years’ SIS for one
count of engaging in a continuing criminal enterprise. The order also provides that an 840-
months period of confinement accompanies the SIS. The order thus presents a couple of
problems. (Given the interrelated nature of the sentencing statutes and our detailed
discussion of them and the order, we have appended the complete four-page sentencing
order to this opinion.)
Ark. Code Ann. § 5-64-405 (Supp. 2013) provides:
(b)(1) A person who engages in a continuing criminal enterprise upon
conviction is guilty of an unclassified felony and shall be sentenced to a term
of imprisonment up to two (2) times the term otherwise authorized for the
underlying offense referenced in subdivision (a)(1) of this section and shall be
fined an amount up to two (2) times that authorized for the underlying offense
referenced in subdivision (a)(1) of this section.
(2) For any purpose other than disposition, engaging in a continuing
criminal enterprise is a Class Y felony.
(c)(1) A person who violates subsection (a) of this section after a
previous conviction under subsection (a) of this section has become final upon
conviction is guilty of an unclassified felony and shall be punished by a term
of imprisonment not exceeding three (3) times that authorized for the
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underlying offense referenced in subdivision (a)(1) of this section and a fine
not exceeding three (3) times the amount authorized for the underlying
offense referenced in subdivision (a)(1) of this section.
(2) For any purpose other than disposition, engaging in a continuing
criminal enterprise is a Class Y felony.
Here, the sentencing range for a first-time, continuing-criminal-enterprise
conviction is linked to the primary, underlying drug offense—meaning the section (a)(1)
offense. In other words, section (b)(1)’s sentencing range is tethered to the sentencing range
of what we have been calling the primary offense (the section (a)(1) offense charged). And
early on we said the primary offense (the (a)(1) offense)—without any help from the State—
must have been the 2007 Class Y felony delivery of methamphetamine to Rachel Cole.
Under the statute in force when the primary offense was committed, the sentencing range
for delivery of methamphetamine was 10–40 years or life, and a $25,000 fine. See Ark.
Code Ann. § 5-64-401 (now repealed). Arkansas Code Annotated section 5-64-405(b)(1)
provides that the circuit court could imprison Hunter for up to two times the term allowed
for the primary (a)(1) offense (the 2007 Class Y delivery of meth to Rachel Cole). Because
Hunter did not receive life, the maximum time the court could impose was an aggregate
term of 80 years; that number is double the 40-year maximum range for the Class Y felony
for delivering meth to Rachel Cole. Ark. Code Ann. § 5-64-405(b)(1). Hunter’s sentence
is within the statutory limits.
But the court overstepped its authority when it sentenced Hunter to the 10 years’
SIS for the continuing-criminal-enterprise charge. Arkansas Code Annotated section 5-64-
405 forbids that disposition:
(e) An offender found guilty of a violation of this section shall not:
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(1) Have his or her sentence suspended;
(2) Be placed on probation;
(3) Have imposition of sentence suspended;
(4) Have the execution of the sentence deferred;
(5) Have the sentence deferred; or
(6) Be eligible for § 16-93-301 et seq.
Ark. Code Ann. § 5-64-405(e)(3) (emphasis added). Arkansas Code Annotated section 5-
4-104(e)(1)(A)(vi) also states that suspended imposition of sentences are not allowed for
continuing-criminal-enterprise convictions. Ark. Code Ann. § 5-64-104 (e)(1)(A) (“The
court shall not suspend imposition of sentence as to a term of imprisonment nor place the
defendant on probation for the following offenses . . . . (vi) Engaging in a continuing
criminal enterprise, § 5-64-405.”). We must therefore strike the 120 months’ SIS portion
of the circuit court’s sentencing order because it is not allowed. We also strike the 840-
month period of confinement accompanying probation or SIS that is marked in the
sentencing order because Hunter could not be placed on probation or SIS for a continuing-
criminal-enterprise conviction.
Recall the list of prohibited sentences listed in section 5-64-405 (with emphases
added):
(e) An offender found guilty of a violation of this section shall not:
(1) Have his or her sentence suspended;
(2) Be placed on probation;
(3) Have imposition of sentence suspended;
(4) Have the execution of the sentence deferred;
(5) Have the sentence deferred; or
(6) Be eligible for § 16–93–301 et seq.
Next, we turn to the habitual-offender enhancement. As we stated earlier, the State
charged Hunter as a habitual offender under Arkansas Code Annotated section 5-4-
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501(a)(1). While the State presented evidence of prior convictions, the circuit court did
not find that Hunter was a habitual offender in its oral rulings. Additionally, the first-offense
(engaging in a continuing criminal enterprise) section in the sentencing order was not
marked to show that Hunter was, in fact, sentenced as a habitual offender. In other words,
the court made no mark in the habitual-offender box (pursuant to Arkansas Code Annotated
section 5-4-501). The third page of the sentencing order, however, identifies “5-4-501
Habitual Offender” as a separate offense, with a separate sentence of 70 years’ imprisonment
and 10 years’ SIS. But nothing in the order indicates whether this habitual-offender
sentence runs consecutive to or concurrent with the first offense (the continuing-criminal-
enterprise conviction). The “total time to be served for all offenses” stated in the appealed
sentencing order is 840 months (70 years).
The bottom-line problem is Hunter was only charged with only one crime:
engaging in a continuing criminal enterprise. And the habitual-offender statute, in the
phrase of the case law, “does not create a distinct additional offense or independent crime
but simply affords evidence to increase the punishment and to furnish a guide for the court
or jury in fixing the final punishment in event of conviction of the offense charged.” Traylor
v. State, 304 Ark. 174, 176, 801 S.W.2d 267, 268 (1990); Ark. Code Ann. §§ 5-4-501 to –
505. The circuit court separately sentenced Hunter to 70 years’ imprisonment and 10 years’
SIS under the “5-4-501 Habitual Offender” statute. But the habitual-offender status is not
a separate crime or offense. So on remand the sentencing order must be corrected to show
that Hunter was convicted of only one offense: engaging in a continuing criminal
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enterprise. We affirm, however, the sentencing order’s statement that the total time Hunter
received as a sentence on all offenses is 840 months (70 years).
B. The Circuit Court’s Upward Deviation from the Sentencing Standards
Hunter’s second point on appeal is that the circuit court abused its discretion when
it deviated upward by 250% from the Arkansas Sentencing Commission’s presumptive
sentence of 240 months’ imprisonment when it sentenced him to 840 months’
imprisonment. We review this point for an abuse of discretion. Whittier v. State, 2015 Ark.
App. 536.
The Arkansas Sentencing Standards recommend similar sentences for similar
offenders, with similar criminal histories. Ark. Code Ann. § 16-90-801 (Repl. 2016). This
helps ensure that sanctions imposed are proportional to the seriousness of the offense of the
conviction and an offender’s criminal history. Ark. Code Ann. § 16-90-801(b), (c).
Applying the sentencing standards is, however, a voluntary process. A circuit court can
deviate from the presumptive sentence without providing a written justification for doing
so. Ark. Code Ann. §§ 16-90-803, –804(a).
Under the voluntary, presumptive standards, there is a grid. Two dimensions of the
grid represent the primary determinants of a sentence—the offense’s seriousness and the
offender’s history. Ark. Code Ann. § 16-90-803(b). The Arkansas Sentencing Commission
classifies the seriousness of engaging in a continuing criminal enterprise as a Level 9 Y
offense. Ark. Code R. 154.00.1-III-1 (Weil 1994). On remand, the seriousness-level box
should be marked level 9, not 8. Offender criminal history is determined by referring to
Arkansas Code Annotated section 16-90-803, which allocates points for different levels of
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prior offenses. Because Hunter’s prior felony records were more than fifteen years old, and
his prior misdemeanor record was more than ten years old, they do not count toward his
criminal history under the presumptive standards. Ark. Code Ann. § 16-90-803(C)(v)(b)–
(c). Consequently, Hunter’s criminal-history score is 0, which is what he argued to the
circuit court during the sentencing hearing. The sentencing order, however, gave Hunter
a mistaken criminal-history score of 2.
Hunter is correct that the presumptive sentence is 240 months (20 years), given his
criminal-history score (0) and the seriousness level of the crime (9). Ark. Code R. 154.00.1-
III-1. On remand, the presumptive sentence listed in the sentencing order (184.80 months)
should be corrected to 240 months. But determining the presumptive sentence for Hunter’s
continuing-criminal-enterprise conviction is not the end of the process. Departure criteria
and procedures are determined by statute. See Ark. Code Ann. § 16-90-804. The circuit
court added 50 years to the presumptive sentence of 20 years. Here is what the court wrote
to support such an upward departure:
The offense was a major controlled substance offense if two or more
of the following are present: (a) Three or more separate transactions involve
sale, transfer or possession with intent; (b) Amounts substantially larger than
the statutory minimum which defines the offense; (c) Offense involved a high
degree of planning or occurred over a lengthy period of time or involved a
broad geographic area; (d) Offender occupied a high position in the drug
distribution hierarch; (e) Offender misused position of trust or status or
fiduciary duty to facilitate commission; (f) Offender has received substantial
income or resources from drug trafficking.
Given the novella-length testimony recited in this opinion against Hunter, and because the
presumptive sentencing standards are merely advisory, we hold that the court did not abuse
its discretion by departing from the presumptive sentence of 20 years’ imprisonment and
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imposing 70 years’ imprisonment against Hunter on the continuing-criminal-enterprise
conviction.
III. Conclusion
Hunter’s continuing-criminal-enterprise conviction—and the circuit court’s decision
to impose a 70-year sentence on that charge—is affirmed. But we remand this case to the
court to correct its sentencing order in some particulars. To summarize, on the continuing-
criminal-enterprise charge, we strike the 120 months’ SIS and the 840-month period of
confinement accompanying the SIS because the statutes do not support those dispositions.
Also on remand, the criminal-history score should be a 0, the seriousness level should be a
9, and the presumptive sentence should be 240 months. Finally, the total sentence imposed
should be 840 months; and there should be no separate offense titled “habitual offender.”
Affirmed as modified; remanded to correct the sentencing order.
HIXSON and BROWN, JJ., agree.
Terrence Cain, for appellant.
Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.
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