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Hunter v. State

Court of Appeals of Arkansas, Division III

April 26, 2017



          Terrence Cain, for appellant.

          Leslie Rutledge, Att'y Gen., by: Evelyn D. Gomez, Ass't Att'y Gen., for appellee.

          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).

         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 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.)

         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. 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 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 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 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. § 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 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 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 ...

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