McDougal v. State

Cite as 2015 Ark. App. 212
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-14-652
LASETTE McDOUGAL Opinion Delivered APRIL 1, 2015
APPELLANT
APPEAL FROM THE MISSISSIPPI
V. COUNTY CIRCUIT COURT,
CHICKASAWBA DISTRICT
[NO. CR-11-45]
STATE OF ARKANSAS
APPELLEE HONORABLE BARBARA HALSEY,
JUDGE
AFFIRMED
DAVID M. GLOVER, Judge
On July 25, 2011, Lasette McDougal pled guilty to the underlying offenses of criminal
attempt to manufacture methamphetamine and possession of drug paraphernalia with intent
to use. He was sentenced to seven years in the Arkansas Department of Correction on the
possession charge. On the criminal attempt to manufacture methamphetamine charge, he
received five years’ suspended imposition of sentence. On April 24, 2013, the State filed a
petition to revoke the suspended sentence, alleging that McDougal delivered
methamphetamine on two occasions on September 18, 2012. The revocation hearing was
held on two days in February and May 2014. At the conclusion of the hearing, the trial
court revoked McDougal’s suspended sentence, finding that he had violated its terms and
conditions. This appeal followed, with McDougal contending 1) the trial court erred in
revoking his suspended sentence as to the first alleged drug transaction because there was a
Cite as 2015 Ark. App. 212
lack of substantial evidence of his involvement and because the testimony of Kenneth Webb
was unreliable and not credible; 2) the trial court erred in revoking his suspended sentence as
to the second alleged drug transaction because there was a lack of substantial evidence—the
video relied upon by the prosecution did not show drugs, and the testimony of Kenneth
Webb was unreliable and not credible; and 3) the trial court erred in admitting into evidence
matters relating to the alleged drugs and relying upon testimony relating to the alleged drugs
because there was a lack of substantial evidence showing a proper chain of custody and
represented a denial of his right to confront witnesses. We affirm.
Background
The drug transactions that formed the basis for revoking McDougal’s suspended
sentence were part of an undercover operation. Kenneth Webb was serving as a confidential
informant for ATF and the drug task force. Webb testified that on September 18, 2012, he
made arrangements with McDougal to buy some methamphetamines; that McDougal
instructed him to come to his apartment in Blytheville; that before he went there, officers
searched him for drugs and contraband; that he was outfitted with a video camera, and a video
was made of the operations; that in the first transaction, his initial contact was with McDougal
but another person, “Kevin,” gave him the drugs; that he asked Kevin if McDougal that sent
him out there to him, and Kevin said, “yes”; and that he gave Kevin $260 and received an
“8-ball” and some methamphetamine in return. Webb testified that the second transaction
took place at Larry’s Grocery on the same date; that the second transaction was also
videotaped; that McDougal actually met him that time and brought him the drugs; that the
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video showed McDougal leaning into the vehicle to hand him $100 worth of
methamphetamine; that Webb turned the drugs over to law enforcement; and that, in
summary, McDougal sold him drugs on two separate occasions on September 18, 2012.
Robert Ephlin, a lieutenant with the Mississippi County Sheriff’s Department, testified
that he was involved with the September 18, 2012 drug operation involving Webb and
McDougal. He corroborated Webb’s testimony that Webb was searched, that the vehicle he
used was provided by ATF and was also searched; that neither Webb nor the vehicle had
contraband; that after the first buy, Webb turned over a small baggie of suspected
methamphetamine to Agent Becker; and that it was field-tested, weighed, initialed by Webb,
placed in an evidence bag, and turned over to Lieutenant Ephlin. Lieutenant Ephlin testified
he was also present when Webb was sent to make the second undercover buy on September
18; that the second buy took place at Larry’s Grocery; that Webb, McDougal, and Agent
Becker were shown in the video; and that after the buy, Webb turned over a small baggie of
methampehtamine. He described the procedures that were followed in identifying and
transporting the evidence to the crime lab.
Other officers also testified and corroborated various parts of the undercover operation.
Felisia Lackey and Kelly Jarrell, chemists with the State Crime Lab, testified about receiving
the two sets of evidence at issue in this case in a sealed condition; that their testing showed
the substances to be methamphetamine and dimethyl sulfone. Both sets of evidence were
admitted over McDougal’s objections, which challenged the chain of custody because no
witness was available to testify about initially receiving the evidence at the crime lab.
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Standard of Review
To revoke probation, the trial court must find by a preponderance of the evidence that
the defendant inexcusably violated a condition of probation. Harris v. State, 2015 Ark. App.
51. The State has the burden of proof but need prove only one violation. Id. We will not
reverse the trial court’s decision to revoke unless it is clearly against a preponderance of the
evidence. Id. When the determination of a preponderance of the evidence turns on questions
of credibility and weight, we defer to the superior position of the trial court to decide these
matters. Id.
The First Transaction
With respect to the first drug transaction, McDougal contends that the trial court erred
in revoking his suspended sentence on that basis because there was a lack of substantial
evidence of his involvement and because the testimony of Kenneth Webb was unreliable and
not credible. We disagree.
In reviewing revocation matters, our court employs a clear-error review, Harris, supra,
not a substantial-evidence review as asserted by McDougal. In addition, it is up to the trial
court to weigh the evidence and determine witness credibility.
We find no clear error in the trial court’s finding that McDougal was involved in the
first sale of drugs to Webb. Webb testified that he arranged the sale with McDougal and that
“Kevin,” the man who actually handed the drugs to Webb, confirmed he had been told to
do so by McDougal. Webb also testified that he paid $260 for the drugs, and Agent Ephlin
testified that Webb and the vehicle he used were searched before the sale to make sure there
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was no contraband. State Crime Lab chemists testified that the substance was
methamphetamine and a cutting agent.
The Second Transaction
With respect to the second transaction, McDougal contends that the trial court erred
in finding that it provided a basis for revocation because there was a lack of substantial
evidence—the video relied upon by the prosecution did not show drugs and the testimony
of Kenneth Webb was unreliable and not credible. We disagree.
As mentioned previously, we employ a clear-error standard in reviewing revocation
matters, not a substantial-evidence standard. In addition, it is up to the fact-finder, which was
the trial court in this instance, to assess witness credibility and the weight to be given
evidence. Testimony concerning the second transaction provided evidence that Webb
obtained that set of drugs from McDougal himself and that he paid McDougal $100 for it.
Moreover, Agent Ephlin similarly testified about Webb and the vehicle being searched for
contraband prior to the sale, and testimony from the State Crime Lab chemists established that
the second set of drugs was also established to be methamphetamine. We find no clear error
in the trial court’s decision concerning the second drug transaction.
The Chain of Custody
For his final challenge to the trial court’s revocation of his suspended sentence,
McDougal contends that the trial court erred in admitting into evidence matters relating to
the alleged drugs and relying upon testimony relating to the alleged drugs because there was
a lack of substantial evidence showing a proper chain of custody and represented a denial of
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his right to confront witnesses. Again, we disagree.
First, as noted by the State, McDougal did not preserve a confrontation argument, so
we will not address that portion of his argument for the first time on appeal.
Second, there is no merit to the chain-of-custody argument. The Arkansas Rules of
Evidence are not strictly applicable in revocation proceedings. Ark. R. Evid. 1101(b)(3).
Even if they were, the purpose of establishing a chain of custody is to prevent the introduction
of evidence that is not authentic or that has been tampered with. Bowerman v. State, 2014
Ark. App. 221. To prove authenticity of evidence in a criminal trial, which would be under
more stringent requirements than is necessary for a revocation hearing, the State must
demonstrate a reasonable probability that the evidence has not been altered in any significant
manner. Id. To allow introduction of physical evidence, it is not necessary that every
moment from the time the evidence comes into the possession of a law-enforcement agency
until it is introduced at trial be accounted for by every person who could have conceivably
come in contact with the evidence during that period. Id. It is necessary only that the trial
court, in its discretion, be satisfied that the evidence presented is genuine and, in reasonable
probability, has not been tampered with. Id.
Here, McDougal contends that there was a “break in the chain of custody, as no
testimony was presented regarding who received the evidence at the state crime lab and what
that person did with the evidence.” Sergeant John Frazier of the Blytheville Police
Department testified that he handed the evidence to a female who worked in receiving at the
lab, and two crime-lab chemists testified that they received the evidence from their lab
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technicians in a sealed condition. We find no abuse of the trial court’s considerable discretion
in admitting this evidence.
Affirmed.
GLADWIN, C.J., and HOOFMAN, J., agree.
Charles E. Ellis, for appellant.
Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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