Hernandez-Diaz v. State

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          APPEAL FROM THE PRAIRIE COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 59SCR-17-14], HONORABLE TOM HUGHES, JUDGE

         James Law Firm, Little Rock, 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.

         OPINION

         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.

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          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 ...