DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-1418

January 16, 2002

CHRISTINA MICHELLE CARRINGTON AN APPEAL FROM CLEVELAND

APPELLANT COUNTY CIRCUIT COURT

[CR99-95]

V. HON. LARRY CHANDLER, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Following a trial by jury, Christina Michelle Carrington was convicted of delivery of a controlled substance and sentenced to thirty years' imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, counsel for appellant filed a motion to withdraw on the grounds that an appeal of the case is without merit. Along with his motion, counsel for appellant filed a brief addressing everything in the record that might arguably support an appeal, including an explanation why any adverse rulings were not meritorious grounds for an appeal. Although the clerk of the court provided appellant with a copy of counsel's brief, and notified her of her right to file pro se points of appeal, appellant has not done so. Consequently, the State has chosen not to file a reply. We have reviewed the record and thebrief prepared by counsel, and conclude that the requirements of Rule 4-3(j) have been satisfied. The appeal is without merit. Thus, we grant counsel's motion to withdraw and affirm appellant's conviction.

On April 13, 1999, Terry Clark, an officer with the Thirteenth Judicial District Drug Task Force, received a telephone call that a confidential informant was willing to introduce the officers to a person in Rison, Arkansas, who was selling crystal methamphetamine. Clark and a fellow deputy met the informant outside of Rison. Clark and the informant drove into town in the informant's vehicle, with Clark on the passenger side. They pulled into the back of the residence and parked on the street. Appellant came up to the car, holding a baby, and the informant introduced Clark as her cousin. Clark leaned over to where he could see appellant, told appellant that he wanted a gram of crystal methamphetamine, and gave appellant the drug buy money. Appellant retrieved the methamphetamine from her pocket and gave it to Clark, who told appellant that he would return later after he tried out the methamphetamine. Appellant indicated that was fine.

At trial, Clark relayed the events leading up to the buy, as well as the buy. Clark positively identified appellant as the person to whom he delivered money and from whom he received methamphetamine. Following Clark's testimony, the State closed its case-in-chief. Appellant did not move for a directed verdict and chose not to present a defense. The defense rested, and again, appellant did not move for a directed verdict. During closing arguments, the deputy prosecutor made the following comments:

I mean, she may appear to be a sympathetic individual, but, ladies and gentlemen, she is a pusher. That's what it boils down to. She was selling dope. This one sale wasn't the only sale she made. You heard the officer's testimony. The informant hadbought from her a number of times and [the officer] worked out a deal to come back and buy again. This isn't an isolated incident. She was a supplier. She was making her living selling -

Counsel for appellant asked to approach and objected to the argument. He also asked the court for an admonition. The court sustained the objection and told the jury to disregard the prosecutor's statement. The prosecutor continued his argument as follows:

Ladies and gentlemen, I apologize for overstating my case. I did, but there is no evidence that she was making her living doing this. I didn't mean to, like I say - go beyond the facts I told you from the start of this case[.] You'll make your decision from the facts and the evidence as it comes from the witness.

Following deliberation, the jury found appellant guilty and recommended that she serve a term of thirty years' imprisonment in the Arkansas Department of Correction. In the sentencing phase, counsel for appellant asked the court to consider imposing a lesser sentence. The court declined to do so, noting that appellant chose to take her chances with the jury instead of pleading to the court with or without a recommendation from the prosecutor.

Sufficiency of the Evidence

Appellant failed to preserve a challenge to the sufficiency of the evidence. Motions for a directed verdict are treated by our court as challenges to the sufficiency of the State's evidence. See Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). On appeal, the issue is whether there is substantial evidence to sustain a verdict. See id. Substantial evidence is evidence that will support a conviction, without a trier of fact being required to resort to mere speculation. See id. Evidence is viewed in the light most favorable to the State, and only evidence that supports a verdict is considered. See id. Rule 33.1 of our Rules ofCriminal Procedure requires a party seeking to challenge the sufficiency of the evidence in a jury trial to move for a directed verdict at the close of the State's evidence and at the close of the case. Additionally, the motion must specifically state the reasons why the party considers the State's evidence inadequate. See Ark. R. Crim. P. 33.1. In the present case, counsel for appellant did not make a motion for a directed verdict at the conclusion of the State's case at the close of all the evidence. Thus, appellant is precluded from challenging the sufficiency of the evidence on appeal. Even so, substantial evidence exists to sustain appellant's conviction. Section 5-64-401 of the Arkansas Code Annotated (Supp. 2001) provides that a person commits a Class Y felony, delivery of a controlled substance, when she delivers less than twenty eight grams of methamphetamine. At trial, agent Clark positively identified appellant as the person to whom he gave drug buy money and from whom he obtained methamphetamine. The State also introduced into evidence a crime lab report that identified the substance Clark received from appellant as being .513 grams of methamphetamine, with trace amounts of ephedrine. The testimony and evidence presented by the State satisfies the substantial evidence requirement.

Pre-Trial Motions

As noted by counsel for appellant, the record does not reveal any pre-trial motions that were decided adversely to appellant. Prior to trial, appellant moved for the State to disclose the identity and address of its confidential informant. The State complied, giving the name and address of the confidential informant. Appellant also moved for the State to present an analyst from the State Crime Laboratory for cross examination. As a result, a subpoena was issued to Nick Dawson of the Arkansas State Crime Laboratory.

Prosecutorial Comments During Rebuttal Closing Argument

In Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996), our supreme court outlined the guidelines governing mistrials in Arkansas as follows:

[A] mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. An admonition is the proper remedy where the assertion of prejudice is highly speculative. . . . This court has held that the failure to request a cautionary instruction or admonition may not inure to the appellant's benefit on appeal.

Id. at 66, 918 S.W.2d at 705-706.

Counsel is given latitude during opening and closing arguments. See Warren v. State, 59 Ark. App. 155, 954 S.W.2d 298 (1997). Consequently, prosecutorial remarks made during closing argument that do not appeal to the jurors' passions will not require mistrial. See id.

The appellant in the present case made a timely objection to the prosecutor's comment during his rebuttal closing argument that appellant made her living selling drugs. She did not seek a mistrial, and instead requested an admonition to the jury. The trial court sustained the objection and complied with appellant's request by telling the jury to disregard the prosecutor's statement. In addition, the prosecutor apologized to the jury and told the jury that he had gone beyond the evidence presented and to limit its decision to the facts and evidence presented by the witness. The admonition to the jury by the trial judge, combined with the apology and admonishment to the jury by the prosecutor, served to cure any possible taint before the jury.

Length of Sentence

During the sentencing phase of the trial, counsel for appellant asked the trial judge to consider a lesser sentence than that recommended by the jury. Counsel argued that the facts in the present case supported a lesser sentence, and that appellant planned to enter a plea of guilty on another count. The trial court declined to do so, and stated that appellant chose to take her chances with the jury. It then imposed a thirty-year sentence. Appellant again requested a reduction in the sentence in a post-trial motion, which noted that the presumptive sentence for appellant's conviction was forty-two months of imprisonment. This motion was also denied.

Presumptive sentences are not applicable in jury trials, and only apply to pleas of guilty and bench trials. See Pickett v. State, 321 Ark. 224, 902 S.W.2d 208 (1995). In Pickett, supra, our supreme court held that our state's sentencing guidelines do not circumvent the right to a trial by jury because the statutory minimum and maximums ranges for a sentence override presumptive sentences. See id.

Following a trial by jury, appellant was convicted of the offense of delivery of a controlled substance, crystal methamphetamine, a Class Y felony that carried a statutory range of ten to forty years' imprisonment. Although she urged in her motion to vacate her sentence that her plea of guilty in a separate drug charge evidenced her sense of remorse and responsibility for her actions, appellant did not enter a plea of guilty in the instant case; instead, as noted by the trial judge, she chose to "take her chances with the jury." She may not now complain about the jury's recommendation of thirty years' imprisonment, which was within the statutory range for the offense she committed.

Affirmed.

Robbins and Roaf, JJ., agree.