{ "id": 1869805, "name": "Wayne DEAN v. STATE of Arkansas", "name_abbreviation": "Dean v. State", "decision_date": "1987-07-20", "docket_number": "CR 87-31", "first_page": "75", "last_page": "82", "citations": [ { "type": "official", "cite": "293 Ark. 75" }, { "type": "parallel", "cite": "732 S.W.2d 855" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "255 Ark. 870", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725083 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/255/0870-01" ] }, { "cite": "263 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672639 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0549-01" ] }, { "cite": "670 S.W.2d 434", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1984, "opinion_index": 0 }, { "cite": "282 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740879 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0563-01" ] }, { "cite": "280 Ark. 577", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744808 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0577-01" ] }, { "cite": "290 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873753 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0046-01" ] }, { "cite": "285 Ark. 73", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877722 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0073-01" ] }, { "cite": "258 Ark. 1015", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1621193 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/258/1015-01" ] } ], "analysis": { "cardinality": 522, "char_count": 10556, "ocr_confidence": 0.887, "pagerank": { "raw": 1.1929047965760263e-07, "percentile": 0.5917985952076743 }, "sha256": "8cbbe984252bf70192b35d63dcc16350467cf7211571d7d6f3c1f67ae8a313a2", "simhash": "1:92cd8c166f0bb9e8", "word_count": 1756 }, "last_updated": "2023-07-14T18:33:58.592079+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Purtle and Newbern, JJ., dissent." ], "parties": [ "Wayne DEAN v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe appellant, Wayne Dean, was convicted of the \u201csale\u201d of a controlled substance. He contends on appeal that he was convicted of a crime that does not exist because \u201cdelivery\u201d of a controlled substance is what is prohibited by statute. We affirm his conviction.\nOn July 1, 1986, Dean was charged with the sale of a controlled substance (amphetamine), in violation of Ark. Stat. Ann. \u00a7 82-2617 (Supp. 1985). The information was amended to charge him with the sale of cocaine. The trial was held September 8,1986, and at the close of the state\u2019s evidence, Dean moved for a directed verdict on the grounds that sale of a controlled substance is not a violation of \u00a7 82-2617. The trial court denied this motion. After the jury\u2019s verdict of guilty was returned, Dean filed a motion for new trial based on the same grounds. This motion was also denied.\nOn appeal, Dean argues it was error for the trial court to deny his motions for directed verdict and new trial. Dean also objects to a jury instruction and the verdict form; to the sufficiency of the evidence against him; and to the admission into evidence of what he contends was hearsay testimony by an undercover agent.\nSection 82-2617 provides:\n(a) Except as authorized by this Act it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.\nArkansas Stat. Ann. \u00a7 82-2601 (Supp. 1985) defines \u201cdeliver\u201d as follows:\n(f) \u201cDeliver\u201d or \u201cDelivery\u201d means the actual, constructive or attempted transfer from one 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.\nThe information charged Dean with \u201csale\u201d of a controlled substance in violation of \u00a7 82-2617. Likewise, the verdict form stated Dean was guilty of \u201csale\u201d of a controlled substance, and the judgment and commitment form reflected that he had been convicted of \u201csale\u201d of a controlled substance. In addition, at the arraignment, the trial judge explained to Dean that he was charged with the \u201csale\u201d of a controlled substance and Dean stated that he understood the charges against him. During opening and closing arguments, however, the prosecutor referred to Dean\u2019s having \u201cdelivered\u201d the drugs and the jury was instructed using the statutory language of \u201cdelivery.\u201d\nIn arguing that he was charged with a crime that does not exist, Dean relies on Fant v. State, 258 Ark. 1015, 530 S.W.2d 364 (1975). In that case, Doris Fant and James Gadd were charged with delivery of a controlled substance. They argued that the evidence did not support the verdict because their actions did not constitute the offense charged. Fant and Gadd argued the \u201cprocuring agent\u201d defense, stating that delivery was made by them only as an agent for the purchaser or seller. This court rejected that argument explaining that the definition of \u201cdelivery\u201d includes the actual delivery of a controlled substance in exchange for money, whether or not there is an agency relationship. We then stated: \u201cThe Arkansas statute does not prohibit sale. It prohibits \u2018delivery\u2019 as defined by the statute. . .\u201d It is this latter language that Dean relies on in his argument that \u201cselling\u201d controlled substances is not a crime in Arkansas. We disagree.\nIn Fant, the appellants were arguing that, since they were merely the agents for the purchaser and the seller, they were not guilty of selling the controlled substance themselves. This court rejected that argument, pointing out that the \u201csale\u201d of the controlled substance is not the crime, the delivery is, as defined in the statute, and they had delivered the controlled substance. Here, the reverse argument is being made and it must fail for the same reasons. Dean is arguing that there was no proof he delivered the controlled substances and there is no prohibition in the statute against selling. As stated in Fant, what is prohibited by \u00a7 82-2617 is \u201cdelivery\u201d which is the actual or constructive transfer of a controlled substance in exchange for money or anything of value. \u00a7 82-2601. A \u201csale\u201d is defined in Webster\u2019s Third New International Dictionary as \u201ca contract transferring the absolute or general ownership of property from one person . . . to another for a price.\u201d It is readily apparent that the definition of \u201csale\u201d is included in the definition of \u201cdelivery\u201d as both involve a transfer of an item in exchange for money. While the information should have stated \u201cdelivery,\u201d we fail to see how Dean could be prejudiced by the use of the different term. Our statement in Fant, that the Arkansas statute does not prohibit sale, was offered in a different context, but was nevertheless too broad, and obviously misleading.\nAlthough the word \u201csale\u201d was erroneously used, the information stated that Dean had violated \u00a7 82-2617, which is the correct statute. We have explained that it is enough if the information sufficiently informs the defendant of the charge or charges so that a defense can be prepared. Mayer v. State, 285 Ark. 73, 685 S.W.2d 143 (1985). In Mayer, thecourtfound there was never any doubt what charge the appellant faced and so the accused was not misled or her defense impaired. The same can be said in this case. The information sufficiently informed Dean that he was charged with transferring a controlled substance in exchange for money. He was not misled by the information, nor was his defense impaired.\nFor the foregoing reasons, we hold that the information charging Dean was sufficient and affirm the trial court\u2019s denial of his motions for directed verdict and new trial. As Dean\u2019s arguments about the jury instruction and verdict form are based on the same premise, these points are also without merit.\nDean next challenges the sufficiency of the evidence to show that he delivered a controlled substance. This argument was not raised by Dean before the trial court and accordingly we will not consider it on appeal. Johnson v. State, 290 Ark. 46, 716 S.W.2d 202 (1986).\nDean also contends that the trial court erroneously permitted an undercover agent to testify as to hearsay. The agent, Investigator Lambert, testified that he and another investigator were working in an undercover apartment when they received a telephone call from co-defendant, Tammy Stevens. Shortly after the call, Dean and Stevens came to the apartment. The investigators talked to Dean about buying some amphetamine or \u201ccrystal\u201d. Dean said he could get the drugs and then, after making a phone call in their presence, accepted $280 from the investigator. Dean and Stevens left to purchase the drugs. About two hours later, Stevens returned alone and delivered cocaine. Lambert testified during the trial as follows:\nQ: At the time that the narcotics was delivered to you, you didn\u2019t see Mr. Dean, is that right?\nA: That is correct.\nQ: Okay. Did you ascertain his whereabouts?\nA: Yes, sir.\nQ: And who from?\nA: Tammy Stevens.\nQ: And where was he at?\nA: She advised he was down in the car.\nThe state argues this statement was not hearsay, but rather was an admission by a party-opponent, defined by A.R.E. 801(d) (2) (v) as a statement offered against a party made by a co-conspirator during the course and in furtherance of the conspiracy.\nWe disagree with the state\u2019s argument. Stevens\u2019 statement was not an admission by a party-opponent. In Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983) we discussed the admissibility of statements made by appellants Spears and Cassell. We explained that because neither appellant implicated the other in these statements, they were each admissible as their own admissions. Here, the opposite is true. Stevens\u2019 statement that Dean was in the car was not her own admission of involvement, but rather was a statement implicating Dean in the delivery. Since it does not fit within this definition of statements which are not hearsay, and since it was offered to prove the truth of the matter asserted \u2014 that Dean was in the car \u2014 it was inadmissible. We do not reverse for this error, however, because it was not prejudicial to Dean in light of the other evidence against him. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). As we recounted earlier, there was testimony from the investigators that Dean came to the undercover apartment with Stevens, agreed to sell drugs to the undercover agents, made a telephone call in their presence, accepted money for the drugs from the agents, and left with Stevens to procure the drugs, promising to return to the apartment with the controlled substances. The fact that only Stevens returned does not affect the sufficiency of the evidence to convict Dean. In Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978), we found the following evidence sufficient:\nThe State\u2019s proof was to the effect that on both the occasions that were involved an undercover agent of the police telephoned Foxworth and arranged for the purchase of heroin at a specified washateria. On the first occasion Foxworth and Janelle Hamilton drove up to the washateria together, and Ms. Hamilton made the actual sale. On the second occasion, only Ms. Hamilton came to the washateria and made the sale. It is immaterial that Foxworth did not take part in the actual sales, for the jury could readily infer that he and Ms. Hamilton were acting together.\nHere, the jury could also readily infer that Dean and Stevens were acting together. All that is required is that the evidence tends in some degree to connect Dean with the delivery and rises above a mere suspicion of guilt. Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974). The evidence was sufficient to support Dean\u2019s conviction without the statement by Investigator Lambert.\nAccordingly, Dean\u2019s conviction is affirmed.\nPurtle and Newbern, JJ., dissent.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "John I. Purtle, Justice,\ndissenting. The majority commits grave error by holding that the hearsay statement is harmless error. It is the only evidence which supports this conviction.", "type": "dissent", "author": "John I. Purtle, Justice," }, { "text": "David Newbern, Justice,\ndissenting. The majority quotes a\ndefinition of \u201csale\u201d as being a \u201ccontract\u201d for transfer. It then quotes Ark. Stat. Ann. \u00a7 82-2601 (f) to define \u201cdelivery\u201d as actual, constructive, or attempted transfer. They are not the same, therefore, I dissent.", "type": "dissent", "author": "David Newbern, Justice," } ], "attorneys": [ "Attaway & Shumaker, by: Rick C. Shumaker, for appellant.", "Steve Clark, Att\u2019y Gen., by: Robert A. Ginnaven III, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Wayne DEAN v. STATE of Arkansas\nCR 87-31\n732 S.W.2d 855\nSupreme Court of Arkansas\nOpinion delivered July 20, 1987\nAttaway & Shumaker, by: Rick C. Shumaker, for appellant.\nSteve Clark, Att\u2019y Gen., by: Robert A. Ginnaven III, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0075-01", "first_page_order": 103, "last_page_order": 110 }