ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-1369

June 20, 2001

DAVID JAY UPTON APPEAL FROM POLK COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE GAYLE K. FORD,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury found David Jay Upton guilty of one count of possession with intent to use drug paraphernalia, three counts of possession of marijuana, and five counts of delivery of marijuana. He was sentenced to serve a total of thirty-eight years in prison. He argues on appeal that the trial court erred in not granting his directed-verdict motion where there was insufficient evidence of delivery of a controlled substance for something of value; that the trial court erred in not granting his motion for a new trial wherethere was evidence of a juror being partial against him; and that the trial court erred in not granting his motion to dismiss where the State's only purpose in delaying his arrest was in order to gain a tactical advantage over him by letting his crimes accumu late. We disagree and affirm.

Sergeant John Ball testified that on June 8, 1998, he recognized appellant standing on the street and was aware that there was a misdemeanor arrest warrant out for him. Sergeant Ball stated that he searched appellant before placing him under arrest and found in appellant's pocket a bag containing marijuana and a small wooden box with a hollow compartment containing a metal smoking pipe.

Officer Chris Martin testified that on June 23, 1998, he and other officers executed a search warrant at appellant's residence in search of $100.00 of drug task-force buy money. He explained that he had just bought an ounce of marijuana from appellant four hours earlier. Officer Martin stated that they found in appel lant's residence two Ziploc baggies containing hard-pressed marijuana, one set of triple beam scales, one small metal container with assorted paraphernalia, and four marijuana plants approxi mately three feet tall covered by large white containers. Officer Martin further stated that on appellant's person they found a silver roach clip, a small plastic bag containing marijuana androlling papers, $1,190.00 including the $100.00 drug task force money, and a Jennings semi-automatic .22 pistol.

Officer Terry Black testified that he assisted in executing the search warrant on June 23 and that he examined the marijuana plants in appellant's garden. He stated that after he had advised appellant of his rights, appellant readily admitted that he was growing four or five marijuana plants.

Randy Bour, charged as an accomplice in the matter, testified that he was living with appellant when police executed the search warrant on June 23. He stated that he threw a baggie containing other baggies of marijuana, a tin box of paraphernalia, and a set of triple beam scales out a back window. Bour stated that the marijuana he threw out was his but that the .22 pistol found in his bedroom must have belonged to appellant. Bour also testified that he did not know that appellant was growing marijuana in the garden. Undercover officer John Hill testified that he was assigned to do a long-term investigation of appellant. He explained that he befriended appellant and, after what he called a "warming up period," the two eventually discussed trading marijuana for what was purported to be moonshine. Hill testified that he made several of these exchanges with appellant. Hill stated that he also bought marijuana from appellant using drug task force money.

At a hearing on appellant's motion for a new trial, William David Upton, appellant's first cousin, testified that his ex-wife was one of the jurors at appellant's trial and that he could tell by looking at her that she was furious because he had attended appellant's trial in the company of another woman. Mr. Upton stated that his ex-wife likely took her anger at him out on appellant. He testified that he was not present for jury selection but that his ex-wife told him she was going to "forfeit," meaning that she would attempt to be excused from jury duty.

An appeal from the denial of a motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993). We view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the verdict. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).

Appellant argues that the trial court erred in not granting his directed-verdict motion on the delivery counts because the State's only evidence was Officer Hill's testimony which was neither corroborated nor credible.

Credibility is for a jury, not an appellate court, to determine. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Officer Hill's testimony was not required to be corroborated, as he was not an accomplice. See Ark. Code Ann. § 16-89-111(e)(1)(1987). The testimony of one eyewitness is sufficient to sustain a conviction. See Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997) (an undercover police officer's unequivocal testimony identifying defendant as the person from whom she purchased cocaine was sufficient to sustain the jury's verdict and judgment with respect to the delivery conviction). Here Officer Hill testified that he had befriended appellant and had made repeated buys from him over the course of his investigation. There is substantial evidence to support the verdicts.

Next, appellant argues that the trial court should have granted his motion for a new trial because there is a reasonable probability that he was prejudiced by having his cousin's enraged ex-wife sitting on the jury panel.

The granting or denying a new trial lies within the sound discretion of the trial judge whose action will be reversed only upon a clear showing of abuse of that discretion or manifest prejudice to the appellant. Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996). A juror is presumed to be unbiased and qualified to serve, and the burden is on appellant to prove otherwise. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). The moving party must show that the alleged misconduct prejudiced his chances for a fair trial and that he was unaware of this bias until after trial. Owens v. State, 300 Ark. 73, 777 S.W.2d 205(1989). Here appellant was aware of the relationship between the juror and his cousin before trial, and she was nonetheless accepted by appellant without objection. While the State questioned the juror at length about the relationship during voir dire, appellant chose not to question her at all. Finally, appellant has not shown that he was prejudiced by the juror's inclusion on the jury panel. Prejudice will not be presumed. Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993).

Appellant's last contention is that the trial court should have granted his motion to dismiss the charges against him because there was no reason to delay the filing of the current charges other than to gain a tactical advantage over him by letting additional charges accumulate.

He cites no authority for reversal on this point, and we can find none. We therefore must affirm on this point too. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).

Affirmed.

Stroud, C.J., agrees.

Pittman, J., concurs.