Hawkins v. State , 81 Ark. App. 479 ( 2003 )

Karen R. Baker, Judge.

A jury in Hempstead County Circuit Court convicted appellant, Jerry Hawkins, of delivery of a controlled substance, cocaine. He was sentenced to ten years’ imprisonment in the Arkansas Department of Correction and fined $10,000. On appeal, he asserts that the trial court erred when it overruled his objection to the admission of State’s exhibit two, crack cocaine, in that the State failed to establish a chain of custody by not showing with reasonable probability that the evidence had not been altered. We affirm.

Officer David Jones testified that on September 26, 2000, he was working undercover when he approached appellant. He stated to appellant that he was “trying- to score [him] a rock.” Appellant replied, “Well, I can help you out.” The officer handed appellant thirty dollars, and appellant soon returned with two rocks of crack cocaine. The officer placed the substance into a brown envelope, initialed it, and sealed it. At that time, he carried the evidence to lock-up at the South Central Drug Task Force office. It was then delivered to the State Crime Lab by Chief Investigator Linda Card.

Chemist Roy Adams testified that the evidence seemed to be in the same condition as when the lab received it. He described the evidence as “one plastic bag (which I’m talking about the plastic bag inside it) containing one white-off-white, rock-like substance.” Both the chemist and the officer identified the brown envelope as State’s exhibit one, and the crack cocaine as State’s exhibit two. Upon the prosecution’s attempt to offer State’s exhibit one and two into evidence, defense counsel objected. The objection was based on chain of custody. The trial judge overruled the objection to the introduction of the exhibit. The evidence was admitted as a result. Ultimately, appellant was found guilty, sentenced, and fined. This appeal followed.

The purpose of establishing a chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). 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. Id.; Guy don, supra. Proof of the chain of custody for interchangeable items like blood or drugs needs to be more conclusive than for other evidence. Crisco, supra. On review, the appellate court will not reverse a ruling regarding the admission of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. Guydon, supra.

Appellant asserts that the trial court erred when it overruled his objection to the admission of the crack cocaine in that the State failed to establish a chain of custody by not showing with reasonable probability that the evidence had not been altered. The State, on the other hand, asserts that any minor uncertainties with the chain of custody went only to the weight of the evidence.

In Crisco, supra, our supreme court held that the trial court abused its discretion by receiving a substance into evidence that was not properly authenticated. Crisco is distinguishable from the facts presented in this case. In Crisco, the police officer described it as an “off-white powder substance” and the forensic chemist’s description varied significantly, describing it as “one triangular piece of plastic containing a tan rock-like substance.” 328 Ark. at 392, 943 S.W.2d at 584. The court in Crisco stated that:

In the case before us, Crisco hinges his contention of lack of authenticity on the fact that Officer Hanes’s description of the drugs differed significantly from that of the chemist, Michael Stage, in color and consistency. In fact, the chemist admitted that he would not have described the substance as off-white powder. Crisco’s point has merit. True, there was no obvious break in the chain of custody of the envelope containing the plastic bag or conclusive proof that any tampering transpired. Yet, the marked difference in the description of the substance by Officer Hanes and the chemist leads us to the conclusion that there is a significant possibility that the evidence tested was not the same as that purchased by Officer Hanes. This is especially so when we consider that the drug involved is a readily interchangeable substance. Under these circumstances, where the substance at issue has been described differently by the undercover officer and the chemist, we believe the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance.

Id. at 393, 943 S.W.2d at 585 (citations omitted).

However, in McChristian v. State, 70 Ark. App. 514, 20 S.W.3d 461 (2000), this court distinguished Crisco and affirmed the trial court’s admission of the evidence. In McChristian, we stated:

Here, the substance in question was identified by the officer who retrieved it as “six rocks” of what appeared to be crack cocaine, while the chemist’s report described it as “a hard off-white rock-like substance.” While in the Crisco case there was a difference in descriptions of the color and texture of the substance (white powder substance versus tan rock-like substance), here the difference is only in a specific number of rocks versus a reference to “a hard off white rock-like substance.” We view differences in these descriptions, at most, as conflicts in evidence properly weighed by the finder of fact rather than as a failure to prove the authenticity of the cocaine. Furthermore, there were no allegations of tampering. Thus, the State sufficiently established the chain of custody. It is not necessary that the State eliminate every possibility of tampering; instead, the trial court must be satisfied that in all reasonable probability the evidence has not been tampered with.

70 Ark. App. at 518-19, 20 S.W.3d at 464-65 (citations omitted).

In the present case, Officer Jones testified that when he approached appellant and told him that he was “trying to score [him] a rock,” appellant gave him two rocks. The chemist testified that “it was one plastic bag (which I’m talking about the plastic bag inside it) containing one white-off-white, rock-like substance.” As in McChristian, we view any difference in these descriptions as, at most, conflicts in evidence properly weighed by the finder of fact rather than as a failure to prove the authenticity of the cocaine.

Moreover, there was no obvious break in the chain of custody or other conclusive proof that any tampering transpired. Officer Jones testified that he packaged the items that he received from appellant, initialed the package, and sealed it. He stated that he carried the envelope to the South Central Drug Task Force office where it was locked and secured. The evidence was taken to the State Crime Lab by Chief Investigator Linda Card. Roy Adams of the crime lab identified exhibit one and two and testified that the evidence appeared to be in the same condition as it was when the lab received it. This testimony sufficiently establishes the chain of custody for the items. It is not necessary that the State eliminate every possibility of tampering; instead, the trial court must be satisfied that in all reasonable probability the evidence has not been tampered with. See Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). Therefore, we hold the trial court did not err in admitting the crack cocaine into evidence. Accordingly, we affirm.

Affirmed.

Pittman, Gladwin, Robbins, and Bird, JJ., agree. Hart, Griffen, Crabtree, and Roaf, JJ., dissent.