{ "id": 1885485, "name": "Thomas WOMACK v. STATE of Arkansas", "name_abbreviation": "Womack v. State", "decision_date": "1990-01-29", "docket_number": "CR 89-171", "first_page": "193", "last_page": "200", "citations": [ { "type": "official", "cite": "301 Ark. 193" }, { "type": "parallel", "cite": "783 S.W.2d 33" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "288 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721896 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0444-01" ] }, { "cite": "300 Ark. 13", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886818 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0013-01" ] }, { "cite": "626 S.W.2d 940", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1755038 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/274/0550-01" ] }, { "cite": "278 Ark. 578", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748287 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0578-01" ] }, { "cite": "298 Ark. 438", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889888 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0438-01" ] }, { "cite": "297 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891439 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0296-01" ] }, { "cite": "470 U.S. 1085", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330208, 11329984, 11330983, 11330696, 11330793, 11331149, 11330606, 11330896, 11330417, 11330321, 11330133, 11330041, 11330524 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/470/1085-04", "/us/470/1085-01", "/us/470/1085-12", "/us/470/1085-09", "/us/470/1085-10", "/us/470/1085-13", "/us/470/1085-08", "/us/470/1085-11", "/us/470/1085-06", "/us/470/1085-05", "/us/470/1085-03", "/us/470/1085-02", "/us/470/1085-07" ] }, { "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": "405 U.S. 427", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722669 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0427-01" ] }, { "cite": "280 Ark. 291", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744785 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0291-01" ] }, { "cite": "264 Ark. 298", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669048 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0298-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-2-209", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "298 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889899 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0163-01" ] }, { "cite": "298 Ark. 335", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889887 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0335-01" ] }, { "cite": "301 Ark. 91", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885463 ], "weight": 5, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0091-01" ] } ], "analysis": { "cardinality": 654, "char_count": 11742, "ocr_confidence": 0.907, "pagerank": { "raw": 2.02044681426079e-07, "percentile": 0.7453320637612463 }, "sha256": "1ced3ac8a5e1eaa89803eeea109e88d56b2005f41f5e65d76808594a4ccca6fd", "simhash": "1:8aec9860481c50fa", "word_count": 2030 }, "last_updated": "2023-07-14T21:23:07.951222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hickman, J., concurs." ], "parties": [ "Thomas WOMACK v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe appellant, Thomas Womack, was convicted of two counts of delivery of cocaine and one count of delivery of marijuana and sentenced to forty years imprisonment and a fine of $50,000. For reversal, Womack contends that (1) he established the defense of entrapment by a preponderance of the evidence; (2) that the trial court erred in overruling his objection to hearsay testimony; (3) that the trial court erred in denying his motion for directed verdict based upon the State\u2019s failure to properly identify him at trial; and (4) that the court erred in allowing testimony concerning a criminal charge other than the one for which he was being tried. We find no error and affirm.\nFrom February 2, 1988, until October 25, 1988, Arkansas State Police conducted an undercover drug operation in Ouachita County. Mark Tokie, an undercover agent employed by PLE, a private law enforcement firm, was hired by the LTV plant in East Camden to identify drug dealers and make buys on company property when possible.\nThe plan was that Tokie would work a month at LTV to \u201cfit in\u201d with and meet employees who were involved with drugs and work in cooperation with the police authorities in the area.\nTokie met Mike Nix on the first day he worked. Approximately six weeks later, Nix sold him marijuana. This was around April 15, 1988. On several occasions thereafter, Tokie \u201chit Nix up\u201d for marijuana, and around the first week of May he had a conversation with Nix \u201cabout buying bigger amounts.\u201d On May 6, Nix introduced Tokie to Womack, an electrician at the plant, and told him (Tokie), \u201cHere\u2019s the guy you need to talk to.\u201d Prior to this time, Tokie had no information that Womack was selling or using drugs.\nOn the same day, Tokie and Womack went out to Womack\u2019s truck. Womack smoked and Tokie simulated smoking marijuana, which was supplied by Womack. At trial, Womack\u2019s version of the facts was radically different from that of the State. He testified that Tokie brought up the subject of marijuana, suggested he use it to help his back problems, and then supplied it for them to smoke. According to Womack, Tokie told him he would like to locate some marijuana, and he (Womack) told Tokie he would \u201clook around and see if he could find some.\u201d\nTokie and Womack spoke again on May 18. At 8:00 p.m. on May 31, Tokie and Womack met to conduct a drug transaction. Tokie followed Womack to a road leading to Womack\u2019s residence. Womack stopped on the road, got out of his truck, approached Tokie, and told him that they should do business on the road because his mother-in-law was living with him and his wife. Womack went back to his truck and returned with a shoebox containing ten bags of marijuana. Tokie paid him $80.00 for two half-ounces bags.\nOnce again, Womack\u2019s version of the facts was quite different from that of the State. Womack testified that Tokie bought all of the marijuana in the shoebox and that he (Womack) put the money in a sack and laid it in a ditch to be retrieved by a guy from Bearden, who had brought the marijuana to him. Womack also stated that he made no money out of the deal but that he did get a \u201cbud\u201d of marijuana to smoke.\nOn July 10, Womack called Tokie and told him he had an \u201ceight ball\u201d of cocaine for him. They had discussed this transaction earlier in the week. Tokie and Womack met again at the same place where the previous buy had occurred. They got out of their vehicles and talked for a short time. Womack placed three ounces of cocaine on the front seat of his truck. Tokie heard someone else coming down the road and picked up the cocaine and put it in his pocket.Womack said, \u201cDon\u2019t be alarmed. He\u2019s probably looking for some stuff, too.\u201d Tokie paid Womack $260 and took the cocaine.\nAccording to Womack, the individual from Bearden placed the cocaine on the seat of his (Womack\u2019s) truck, and Tokie placed $260 on the seat of the truck and took the cocaine. The man from Bearden, who was hiding in the woods, got the money. Womack testified that he did not touch the cocaine.\nOn July 16, Womack called Tokie and told him he had two and one-half grams of cocaine that he wanted to sell. There was no prior plan or conversation to set up this transaction. The two men agreed that Womack would come over and deliver drugs to Tokie in his apartment. While Womack was in the apartment, he asked Tokie for a drink of water. When Tokie opened up the cupboard to get a glass for him, Womack put the cocaine in the cupboard. Tokie paid Womack $200 for the cocaine.\nTokie testified that his relationship with Womack was purely business in nature.\nENTRAPMENT\nWomack contends that he established the affirmative defense of entrapment by a preponderance of the evidence. In examining appellant\u2019s argument, it is obvious that his allegation of error is, in fact, that the trial court should have directed a verdict at the conclusion of the State\u2019s case on the ground that entrapment was established as a matter of law.\nEntrapment is an affirmative defense, upon which the defendant bears the burden of proof by a preponderance of the evidence. Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990); McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989). Entrapment occurs when a law enforcement officer or any other person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Ark. Code Ann. \u00a7 5-2-209 (1987). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id.\n\u201cEntrapment as a matter of law is established only if, viewing the evidence in a light most favorable to the State, there is no factual issue to be decided.\u201d Wedgeworth, supra; Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978). See also Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). Otherwise, entrapment is a question of fact for the jury to resolve. Wedgeworth, supra.\nHere, there were factual issues to be decided by the jury as to whether or not the conduct of the authorities and the person acting in cooperation with them would have caused a law-abiding citizen to possess and deliver cocaine and marijuana. See Wedgeworth, supra. The trial court was correct in refusing to direct a verdict in favor of Womack.\nHEARSAY TESTIMONY\nWomack argues that the trial court erred in overruling his objection to hearsay testimony.\nOn direct examination, Mark Tokie testified that he made a purchase of marijuana from Mike Nix on April 15. This was before Tokie met Womack. When the prosecuting attorney asked Tokie about his conversation with Nix concerning buying larger amounts of marijuana from another person, defense counsel objected on hearsay grounds, and the trial court sustained the objection. Tokie then testified concerning his meeting with Nix and his introduction to Womack. The following exchange then occurred:\nProsecutor: What happens in this meeting?\nTokie: Mr. Nix brought me up and introduced me to Thomas Womack and he said \u2014\nDefense counsel: Objection.\nThe Court: I\u2019m going to overrule it right now.\nMr. Tokie: All Right. He introduced me to him and he said, \u201cHere\u2019s the guy you need to talk to.\u201d\nDefense counsel: Judge, I object to that.\nThe Court: Well, I\u2019ve overruled that.\nDefense counsel: Save our exceptions. I think it\u2019s hearsay.\nThe State claims that the testimony by Tokie that Nix introduced him to Womack and stated, \u201cHere\u2019s the guy you need to talk to,\u201d was not hearsay since it was not offered for the truth of the matter asserted, but rather to show the basis of how Tokie first met Womack.\nWe need not address whether the testimony was inadmissible hearsay. Even assuming the trial court erred in admitting the testimony, the error was harmless beyond a reasonable doubt in that the prejudicial effect of the testimony was minimal and the evidence of guilt was overwhelming. See Schneble v. Florida, 405 U.S. 427 (1972). A defendant is entitled to a fair trial, not a perfect one. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).\nIDENTITY OF APPELLANT\nWomack asserts that the trial court erred in denying his motion for directed verdict based upon the State\u2019s failure to identify him at trial. We disagree.\n\u201c [A] n element to be proved in every case is that the person who stands before the court in the position of the defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate.\u201d Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Identification of a defendant can be inferred from all the facts and circumstances that are in evidence. Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989).\nIn Becker, we held that there was sufficient proof of identity, stating:\nHere, there were no codefendants; the defendant was tried alone. He was specifically identified as \u201cMr. Becker\u201d and \u201cthe defendant\u201d throughout the trial. The witnesses were eyewitnesses to the robbery, and the fact that none of them pointed out that the wrong man had been brought to trial was eloquent and sufficient proof of identity.\nIn the case at bar, TOkie testified that Womack was the person from whom he purchased marijuana and cocaine. Womack was tried alone and was identified as \u201cMr. Womack\u201d or \u201cThomas Womack\u201d throughout the trial. Furthermore, Tokie was a participant in the drug buys and did not point out that the wrong man had been brought to trial. In sum, this was sufficient proof of identity.\nOTHER CRIMINAL CHARGES\nWomack contends that the trial court erred in allowing testimony concerning a criminal charge other than the one for which he was being tried. This argument is without merit since Womack\u2019s counsel raised the issue by electing to recall Womack to the witness stand on redirect, at which time Womack furnished testimony as to the other charge.\nA bench conference took place during cross-examination of Womack in which the issue of the admissibility of the other charge was addressed by counsel and the court. After a lengthy exchange concerning the admissibility or inadmissibility of facts relating to the \u201cCalhoun County case,\u201d the court stated: \u201cI think they can go into it.\u201d Womack\u2019s counsel replied, \u201cI want to save my exceptions to that ruling. But then based on that ruling, I feel like I must inquire about it.\u201d\nWomack\u2019s counsel then elected to place Womack on the stand for a brief redirect examination:\nQ. Mr. Womack, you are charged with three transactions in this county \u2014 one marijuana, two being cocaine.\nA. (Nods affirmatively).\nQ. Now that\u2019s not the only charges that are against you or is it sir?\nA. No sir.\nThereafter, the State presented testimony of Mark Tokie as a rebuttal witness; however, from our examination of the appendices the testimony has no relationship to the criminal charge other than the one for which Womack was being tried.\nNotwithstanding the fact that the court in its ruling indicated that it thought the State could go into the matter of the other criminal charge, it was Womack who raised the issue of the charge when he testified on redirect examination. He cannot now be heard to complain of that for which he was responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Kaestel v. State, 21A Ark. 550, 626 S.W.2d 940 (1982). See also Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989); Williams v.State, 288 Ark. 444, 705 S.W.2d 888 (1986).\nAffirmed.\nHickman, J., concurs.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Honey & Honey, P.A., for appellant.", "Steve Clark, Att\u2019y Gen., by: R.B. Friedlander, Solicitor General, for appellee." ], "corrections": "", "head_matter": "Thomas WOMACK v. STATE of Arkansas\nCR 89-171\n783 S.W.2d 33\nSupreme Court of Arkansas\nOpinion delivered January 29, 1990\nHoney & Honey, P.A., for appellant.\nSteve Clark, Att\u2019y Gen., by: R.B. Friedlander, Solicitor General, for appellee." }, "file_name": "0193-01", "first_page_order": 223, "last_page_order": 230 }