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McDougal v. State

Court of Appeals of Arkansas, Division IV

April 1, 2015

LASETTE McDOUGAL, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT. NO. CR-11-45. HONORABLE BARBARA HALSEY, JUDGE.

Charles E. Ellis, for appellant.

Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

DAVID M. GLOVER, Judge. GLADWIN, C.J., and HOOFMAN, J., agree.

OPINION

Page 864

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 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

Page 865

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 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 ...


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