APPEAL
FROM THE PRAIRIE COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO.
59SCR-17-14] HONORABLE TOM HUGHES, JUDGE.
James
Law Firm, by: Michael Kiel Kaiser and William O.
"Bill" James, Jr., for appellant.
Leslie
Rutledge, Att'y Gen., by: Karen Virgina Wallace,
Ass't Att'y Gen., for appellee.
ROBERT
J. GLADWIN, JUDGE.
Yuniesky
Hernandez-Diaz was convicted on July 2, 2018, in the Prairie
County Circuit Court of fleeing and possessing a controlled
substance with the purpose to deliver. He argues that there
was insufficient evidence to support the fleeing conviction
and that his case must be remanded for correction of clerical
errors in the sentencing order. The State opposes his
sufficiency argument but concedes that the errors in the
sentencing order should be corrected. We affirm and remand to
correct clerical errors in the sentencing order.
I.
Facts
Hernandez-Diaz
was charged by criminal information with possessing more than
twenty-five pounds of marijuana and felony fleeing. At his
trial, William Basore, a K9 police officer with the Hazen
Police Department, testified that he had been patrolling the
interstate on December 21, 2016, when he observed
Hernandez-Diaz's vehicle cross the fog line. Basore
activated his lights and siren, but Hernandez-Diaz increased
his speed to 115 miles an hour and did not stop. Basore
called for backup, and he testified that Hernandez-Diaz
continued "on the south side or the shoulder of the
interstate to pass cars going that way. When he couldn't
get over to the south side, he would continuously pass cars
using both shoulders." The chase continued for about
twenty-two miles. The Arkansas State Police were contacted,
and officers deployed spike strips as Hernandez-Diaz
approached, and he hit the strips, deflating his front tires.
Hernandez-Diaz continued for another two miles before veering
off the roadway and crashing in the woods. He jumped out of
his vehicle on the passenger side and ran into the woods,
leaving behind a black bag filled with what later was
discovered to be baggies of marijuana. After Basore's
police dog helped to follow and apprehend him, Hernandez-Diaz
complied with the officers, and he was taken to jail.
Officers then searched his vehicle, finding several large
bags of marijuana in the backseat.
Conley
Busselle, an investigator for the Central Arkansas Drug Task
Force, testified that he assisted the Hazen police and
retrieved the marijuana for processing. He photographed it,
weighed it, placed it in boxes, and took it to the Arkansas
State Crime Lab for analysis. He said that the marijuana in
its packaging weighed 27.4 pounds and that he had weighed
each bag separately. The packaging was vacuum-sealed freezer
bags. Dan Hedges, a forensic scientist for the Arkansas State
Crime Lab, testified that the evidence tested positive for
marijuana. He said that he had weighed the bags labeled 1
through 14 of the twenty-six bags of evidence and that an
approximate weight for the entirety of the marijuana was
23.97 pounds.
Hernandez-Diaz
moved for a directed verdict at the close of the State's
evidence, arguing that insufficient evidence was presented by
the State to prove possession of a controlled substance in
excess of twenty-five pounds and that all the elements of
fleeing had not been met because the officers' testimony
did not establish that anyone was put at risk. The trial
court denied the motion.
II.
Sentencing Order
The
jury found Hernandez-Diaz guilty of fleeing by means of a
vehicle under certain circumstances manifesting extreme
indifference to the value of human life, purposely operating
the vehicle in a manner that created a substantial danger of
death or serious physical injury. Further, the jury found him
guilty of possessing less than twenty-five pounds of
marijuana with the intent to deliver. However, the sentencing
order reflects that he was convicted of possessing more than
twenty-five pounds of marijuana and fleeing on foot rather
than by vehicle. This appeal timely followed.
III.
Standard of Review
Arkansas
law treats motions for directed verdict as challenges to the
sufficiency of the evidence. Holloway v. State, 2011
Ark.App. 52. When the sufficiency of the evidence is
challenged in a criminal conviction, our court views the
evidence in the light most favorable to the verdict and
considers only the evidence supporting it. Adkins v.
State, 371 Ark. 159, 264 S.W.3d 523 (2007). We will
affirm if the finding of guilt is supported by substantial
evidence. Id. Substantial evidence is evidence of
such sufficient force and character that it will, with
reasonable certainty, compel a conclusion one way or the
other, without resorting to speculation or conjecture.
Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905.
IV.
Fleei ...