ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

GLEN EDWARD RABB

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-01010

September 26, 2001

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. CR 99-238-2A, CR 2000-5-2]

HON. SAM B. POPE,

CIRCUIT JUDGE

AFFIRMED

Glen Edward Rabb was found guilty by an Ashley County jury of conspiracy to deliver a controlled substance, methamphetamine, and sentenced to 276 months' imprisonment in the Arkansas Department of Correction. Appellant challenges the sufficiency of the evidence to sustain his conviction of conspiracy, the trial court's jurisdiction, the trial judge's failure to recuse, and several evidentiary rulings. We find no error and affirm the trial court.

In October of 1998, police in Orange County, California, arrested appellant for possession of methamphetamine with intent to deliver. The arrest was pursuant to a search of his property that yielded six pounds of methamphetamine, approximately $60,000 cash, one pound of marijuana, and several documents. The documents led police to Monticello, Arkansas, and ultimately to appellant's home that he had purchased with Kathy Rabb, his estranged wife. Following the lead, California police officers flew to Arkansas on October 28, 1998, to continue the investigation with the assistance of the Monticello Police Department.

On October 29, 1998, Orange County officers executed a search warrant on appellant's Arkansas residence. The search revealed $4,000 in cash and $14,000 in appellant's bank account, but no drugs. On November 13, 1998, the Orange County officers returned to Arkansas to search the residence for any items they may have missed during the initial search. The second search uncovered approximately six ounces of methamphetamine, postal scales, a .22 caliber rifle, over 200 syringes, documents, and over $350,000 in cash. Based on the evidence collected, appellant was charged (along with his estranged wife) with conspiracy to deliver methamphetamine. In a severed trial, Ms. Rabb was convicted of possession with intent to deliver and conspiracy to deliver methamphetamine. See Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001).

The appellant first challenges the sufficiency of the evidence supporting his conspiracy conviction. A motion for directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). The Arkansas Rules of Criminal Procedure require that a motion for directed verdict be brought at the conclusion of the evidence presented by the prosecution and again at the close of the case ... ." Ark. R. Crim. P. 33.1 (2001). Additionally, in order to preserve a sufficiency argument for appeal, appellant is obligated to renew his motion for directed verdict at the close of any rebuttal case the State may present. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Rankin v. State, 329 Ark. 379, 948 S.W.2d (1997).

Here, appellant made a directed verdict motion at the close of the State's case and at the end of the case-in-chief. However, appellant failed to renew the motion after the State's rebuttal evidence was presented. Therefore, the appellant did not make his challenge at "the close of the case," and we are procedurally barred from considering the argument on appeal.

Appellant next challenges the trial court's denial of his motion to dismiss for lack of jurisdiction. Appellant argues that no proof existed that he had conspired to commit a crime againstthe State of Arkansas. The State contends that this argument is essentially a sufficiency of the evidence argument and should be summarily rejected because appellant failed to properly preserve the argument for appeal. However, because the appellant made a timely pre-trial motion on the issue, which was considered (after the State's proof was presented) and ultimately rejected by the trial court, the issue is preserved.

Although jurisdiction must be proven beyond a reasonable doubt before a conviction may be obtained, see Ark. Code Ann. § 5-1-111(a)(2) and (3) (Repl. 1997), the State is not required to prove jurisdiction unless evidence is admitted that affirmatively shows that the court lacks jurisdiction. See Ark. Code Ann. § 5-1-111(b); Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985). Appellant argues that because all criminal acts allegedly committed by him occurred in California, jurisdiction was not proven by the State.

Even assuming that appellant's guilty plea in California is affirmative evidence that Arkansas lacks jurisdiction, Ark. Code Ann. § 5-1-104(a)(4)(Repl. 1997) provides:

***

Arkansas Code Annotated section 5-64-401(a) (Repl. 1997) prohibits a person from delivering a controlled substance, and section 5-64-101(f) defines "delivery" as the "actual, constructive, or attempted transfer from one (1) 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[.]" Finally, Ark. Code Ann. § 5-3-401 provides that:

commission of any criminal offense:

(1) He agrees with another person or other persons:

(B) That he will aid in the planning or commission of that criminal offense; and

(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.

Here, the criminal offense underlying the conspiracy was possession of methamphetamine with the intent to deliver. In order to establish sufficient proof to maintain jurisdiction, the evidence must show that appellant entered into an agreement with another person (his wife) to commit the crime of delivery of methamphetamine and that one of them did at least a minimal act (in Arkansas) in furtherance of that agreement. See Jones v. State, 45 Ark. App. 28, 871 S.W.2d 403 (1994). The State may prove a conspiracy with circumstantial evidence and inferences drawn from the conspirators' conduct. See Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992).

Appellant pled guilty in California to possession of methamphetamine with intent to sell, and appellant's wife was convicted in Arkansas of possession of a controlled substance with the intent to deliver. The Arkansas conviction of appellant's wife will satisfy the second prong (overt act) of the analysis. In support of the first prong of its conspiracy case, the State presented the following evidence: that appellant made several trips to his Arkansas residence; that during a six-month period most of the long distance calls from the appellant's Arkansas home were to his California home; that a large amount of money (wrapped in a similar manner) was discovered at each residence; that the methamphetamine discovered at each residence was packaged in a similar manner; that the "pay/owe" sheets found in California had notations referring to his estranged wife in Arkansas; and that one of the money wrappers found at the Monticello residence had appellant's fingerprint on it. Also, the State established that appellant was the likely author of a writing found in a Mason jar that was in the bottom of a bucket at appellant's Arkansas home. A similar writing, written in the same green-colored ink, indicating "Sent Sue eight ounces, 10-21-98," was discovered at appellant's California residence.

Appellant counters that the frequent contact with his estranged wife centered around their daughter, Starr, and that the "Sue" he referred to in the writing was not his wife, but a friend in California. However, the court did not believe appellant's version of the events and we defer to the trial judge on issues of credibility. Tabor v. State, 333 Ark. 429, S.W.2d 227 (1998). Therefore, credible evidence was presented to connect appellant to a crime against the State of Arkansas and the trial court properly exercised jurisdiction over the matter.

For appellant's third point on appeal, he argues that the trial court erred when it allowed the introduction of several writings that were discovered during the searches of his Monticello and California homes. He specifically argues that the trial court violated Rules 401, 402, and 403 of the Arkansas Rules of Evidence by allowing the questionable material into evidence. The State correctly responds that appellant raises the Rule 403 challenge for the first time on appeal and that this argument is not preserved. Jones v. State, 72 Ark. App. 271, 35 S.W.3d 345 (2000). However, we will consider the remaining 401 and 402 challenges, despite the fact that none of these questionable writings were included in the appellant's abstract. The testimony concerning the content and nature of the documents included in the abstract is sufficiently developed to allow this court review the argument on the merits.

Appellant claims that the questionable writings are irrelevant because the expert failed to adequately connect appellant to the documents. The State used the expert's testimony (along with the writings) as part of its proof in the conspiracy charge. The documents helped connect appellantto both residences and to the methamphetamine. Specifically, the documents found were both written in green ink -- one was discovered during the California search, and another was discovered during the Arkansas search -- and, the handwriting expert testified that there were "strong indications" that appellant authored the documents. The "pay/owe" sheet recovered from appellant's California home also had entries that would suggest appellant was doing business in Arkansas.

"Relevant evidence" means evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence, and all relevant evidence is admissible. Ark. R. Evid. 401 and 402. The factual underpinning of an expert's opinion is a matter to be developed on cross-examination and goes to the weight and credibility of the evidence, which is within the province of the jury. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). A trial court's conclusion that evidence is relevant is entitled great weight and will only be reversed if it was an abuse of discretion. Dixon v. State, 311 Ark. 613, 617, 846 S.W.2d 170, 172 (1993). The documents (along with the expert's accompanying testimony) are clearly relevant and the trial court did not abuse its discretion by allowing the information to be considered and weighed by the jury.

In his final allegation of error, appellant asserts that the trial court abused its discretion in not recusing because he had previously presided over the jury trial of the appellant's co-defendant, Kathy Sue Rabb. The decision to recuse is within the trial court's discretion, and that decision will not be reversed absent abuse. Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000). There is a presumption of impartiality and the abuse must be proven by the party seeking to disqualify by showing bias or prejudice on the part of the trial court. Id.

Here, appellant merely argues that the trial judge, according to the Judicial Canons, should have recused because of the knowledge that he gained during the separate trial of Kathy Rabb, or in the alternative because of the "appearance" of partiality.1 The evidence does not support a showing of bias or prejudice on the part of the trial court, and the judge's decision to hear the case was not an abuse of his discretion.

Affirmed.

Robbins and Bird, JJ. agree.

1 Specifically, appellant takes out of context the following statement made by the trial judge in a bond hearing for Kathy Rabb: "[I]t doesn't take a rocket scientist to find probable cause where you've been in Eddie Rabb's house in California and his storage facility in California, found drugs, found money, and he's got property interests here in Monticello."