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Hill v. State

Court of Appeals of Arkansas, Division III

January 24, 2018

2018 Ark.App.
v.
STATE OF ARKANSAS APPELLEE BRAD L. HILL APPELLANT

         APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-15-390] HONORABLE BILL PEARSON, JUDGE

          King Law Group PLLC, by: Natalie S. King, for appellant.

          One brief only.

          KENNETH S. HIXSON, JUDGE.

         Appellant Brad L. Hill appeals after he was convicted by a Pope County jury of possession of a controlled substance and delivery of a schedule I or schedule II controlled substance not methamphetamine or cocaine and sentenced as a habitual offender to serve a total of 240 months in the Arkansas Department of Correction. Appellant's attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court Rule 4-3(k) (2017) and Anders v. California, 386 U.S. 738 (1967), asserting that this appeal is wholly without merit. The motion is accompanied by an abstract and addendum of the proceedings below, alleged to include all objections and motions decided adversely to appellant, and a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of this court mailed a copy of counsel's motion and brief to appellant's last-known address informing him of his right to file pro se points for reversal; however, he has not done so.[1] Consequently, the attorney general has not filed a brief in response. We grant counsel's motion to withdraw and affirm the convictions.

         Appellant was charged by felony information with two counts of delivery of a schedule I or schedule II controlled substance not methamphetamine or cocaine. A jury trial was held on June 8, 2016.

         At trial, Narcotics Investigator Tony Haley testified that he used a confidential informant, Shannon Scissom, in order to set up two controlled buys of heroin from appellant. The first controlled buy occurred on July 8, 2015. Investigator Haley testified that he had searched Scissom immediately before and after the controlled buy. Agent Michael Owen Evans testified that he is employed by the Russellville Police Department and that he had searched Scissom's vehicle immediately before the buy to verify that there was not any money or controlled substances contained in the vehicle. Investigator Haley testified that he then equipped Scissom with two electronic-monitoring devices and gave her $240 to purchase heroin from appellant. Investigator Haley and Agent Evans observed appellant enter and exit Scissom's vehicle, and Scissom gave the heroin she purchased with the $240 to Agent Evans. Because the electronic recordings were unusable because Scissom's radio was playing too loudly during the transaction, Investigator Haley asked Scissom to set a second controlled buy.

         The second controlled buy took place the next day, July 9, 2015. Scissom was searched immediately before and after by Investigator Haley, and Agent Evans searched her vehicle. Scissom was equipped with two electronic-monitoring devices and given $100 to buy heroin from appellant. Investigator Haley and Agent Evans observed appellant enter and exit Scissom's vehicle, and Scissom gave the heroin she purchased and the two electronic monitoring devices to Agent Evans. Scissom was compensated by law enforcement for her assistance.

         The electronic recordings from both transactions were admitted into evidence at trial. Scissom testified and confirmed that she had, in fact, purchased heroin from appellant on July 8 and 9, 2015. Lauren McDonald, a forensic chemist at the Arkansas State Crime Laboratory, testified that the substances obtained tested positive for heroin and that heroin was a schedule I controlled substance. The first substance obtained weighed 1.9676 grams, and the second substance obtained weighed 0.8754 grams.

         Appellant moved for a directed verdict arguing that the State failed to meet its burden to prove that he delivered a controlled substance and that he knowingly or willfully did so as defined in the statute on either count, without any further specific argument. The trial court denied his motion, and appellant testified on his own behalf. Appellant refuted the testimony presented by the State and contended that Scissom was actually selling him heroin despite her testimony. He contended that Scissom was framing him and had hidden the heroin in her bra so that law enforcement would not discover it during the searches before the controlled buys. After his testimony, he renewed his motion for a directed verdict, and the trial court denied his motion.

         After all evidence was presented, the jury found appellant guilty of one count of possession of a controlled substance and one count of delivery of a schedule I or schedule II controlled substance not methamphetamine or cocaine, and appellant was sentenced as a habitual offender to serve a total of 240 months in the Arkansas Department of Correction. This appeal followed.

         Appellant's counsel explains that any challenge to the sufficiency of the evidence based on appellant's motion for a directed verdict or renewed motion for a directed verdict would be wholly without merit. Arkansas Rule of Criminal Procedure 33.1 (2017) provides,

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at ...

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