NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

GLENN BELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-832

SEPTEMBER 4, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 96-1513]

HONORABLE DAVID BOGARD, CIRCUIT JUDGE

AFFIRMED

The trial court sentenced appellant to three years' imprisonment following his conviction by a Pulaski County jury of possession of drug paraphernalia. After the jury was released, the trial court considered the State's petitions for revocation of appellant's probation for two previous convictions. It was stipulated that the evidence in the trial of the matter for which appellant was just convicted would serve as the evidence for proving the allegations contained in the two petitions to revoke probation. The court found by a preponderance of the evidence that the allegations in both petitions were sustained and revoked appellant's probation on both convictions. The court then sentenced appellant to ten years' imprisonment for each of the cases and directed that the sentences be served concurrent with each other but consecutive to the three year sentence imposed for possession of paraphernalia . Appellant asserts eight points on appeal. We find no error and affirm.

Facts

On or about January 11, 2000, a confidential informant reported to the Little Rock Police Department that the informant had engaged in a drug transaction at a residence located at 2814 State Street with an individual named Paul. Little Rock Police used this information to obtain a searchwarrant for the residence. The warrant was executed by the SWAT team of the Little Rock Police Department and entry was gained through the front door on January 14, 2000.

Three individuals were found in the residence including appellant, Kimberly Wiley, and Robert Curlett. A crack pipe, cocaine, and other contraband were also found. Appellant was found in the kitchen area and was arrested along with the other two individuals on charges of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and maintaining a drug premises.

Point I: Whether the trial court erred by not ordering the disclosure of the confidential informant.

The warrant in this case was based in part upon statements of a confidential informant. The informant indicated he had made contact with a male using the name "Paul" regarding a drug transaction at the residence where appellant was arrested. Appellant claims that he has no known nickname of "Paul" and that there was no record evidence of the "Paul" reference linked to appellant. He argues that the lack of a specific connection between the name "Paul" and himself required the trial court to order the disclosure of the confidential informant to allow appellant an opportunity to investigate the exculpatory nature of information possessed by the confidential informant. Specifically, appellant contends that if the confidential informant had been disclosed, he would have been able to interview the informant with respect to the person using the name "Paul."

Under Ark. R. Crim.(P)17.5(b) (2001), the State is not required to disclose an informant's identity where his identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the accused. The general rule is that the identity of the informant should be disclosed only when the informant is a witness to or a participant in the criminal incident. Brownv. State, 310 Ark. 427, 430, 837 S.W.2d 457, 459 (1992). Disclosure of the identity of the informant is not required where the accused is charged only with possession of contraband, and the informant merely supplies information leading to the issuance of a search warrant. Jackson v. State, 283 Ark. 301, 303, 657 S.W.2d 820, 822 (1984).

The informant in this case supplied information to law enforcement who obtained a search warrant at a particular house. When the warrant was executed, appellant was found in possession of drug paraphernalia in that same house. Appellant does not articulate how a more accurate identification of the individual "Paul" would lead to exculpatory evidence. We hold that under these circumstances, the trial court did not err by refusing to order the State to disclose the identity of the informant, and accordingly, affirm.

Point II: Whether the trial court erred by allowing Kimberly Wiley to testify.

Appellant argues that the State failed to disclose all of a Kimberly Wiley's prior convictions. He complains that the State untimely supplied information to him regarding the witness's convictions on the day before trial and that the State's information failed to include an additional charge of misdemeanor bribery discovered by appellant's investigator. Appellant presented no evidence, other than counsel's explanation of the investigator's discovery, regarding the misdemeanor bribery charge. Nothing in the abstract suggests that the prosecution had in its possession any information concerning a bribery case against the witness. Appellant claims that it was reversible error for the judge to allow the witness to testify.

To determine whether a reversible discovery violation occurred, the appellate court examines whether the appellant was prejudiced by the prosecutor's failure to disclose and will not reverse absent a showing of prejudice. Hicks v. State, 340 Ark. 605, 612, 12 S.W.3d 219, 223 (2000). "Evidence which only attacks the credibility of other testimony is not grounds for a newtrial." Taylor v. State, 299 Ark. 123, 126, 771 S.W.2d 742, 744 (1989) (finding that failure to disclose accomplice's misdemeanor conviction was not reversible error where State disclosed prior felony conviction).

Appellant argues that the witness should have been precluded from testifying because the State should not be rewarded for their untimely discovery of evidence by being allowed to use the same at trial. Although the trial judge refused to allow testimony regarding a bribery charge which was not supported by appropriate documentation, the witness testified to her numerous convictions, including drug related offenses, prostitution, and theft. Under these facts, we cannot say that appellant has shown either a discovery violation or prejudice.

Point III: Whether the trial court erred by denying appellant's motion for a mistrial.

Neither did the court err by denying appellant's motion for a mistrial. Appellant moved for a mistrial based upon the witness's statement that appellant had engaged in the selling of a controlled substance on the day of his arrest. He claims that a mistrial was required because the witness implicated appellant in felony crimes not charged in the information.

Evidentiary matters regarding the admissibility of evidence are within the sound discretion of the trial court, and rulings in this regard will not be reversed absent an abuse of discretion. Rankin v. State, 57 Ark. App. 125, 133, 942 S.W.2d 867, 871 (1997). While evidence of other crimes, wrongs, or acts is not admissible merely to prove bad character of the defendant and to show that his actions conformed to that character, evidence that is independently relevant to the main issue in the case and tending to prove some material point rather than to prove the defendant is a criminal, the evidence may be admissible. Lindsey v. State, 319 Ark. 132, 890 S.W2d 584 (1994).

In this case, the witness testified that appellant and his codefendant sold cocaine at the house on several occasions the day of their arrests. Based upon the original charges, the jury had the dutyto determine whether appellant was guilty of maintaining a drug premises, possessing cocaine with intent to deliver, and/or possessing drug paraphernalia. Therefore, this information was independently relevant to the charges, and its admission was not error.

Point IV: Whether the trial court erred by admitting improper character evidence.

On cross-examination of Ms. Wiley, appellant introduced a handwritten statement that she gave to police that did not mention that appellant sold drugs at the house that day. Appellant's implication was that Ms. Wiley's testimony was a recent fabrication as it was not included in her handwritten statement to the police. On redirect, Ms. Wiley testified that the reason she did not mention appellant in the statement to the police was because she was afraid that appellant and his codefendant would harm her.

The State's introduction of the witness's explanation for her omission was in the form of rehabilitation of the witness, not an attempt to attack appellant's character. Furthermore, the testimony was in direct response to appellant's introduction of the statement that opened the door for the prosecutor's inquiry on redirect. Fairness dictates that the prosecutor be allowed to explore an area of inquiry to clarify any confusion or misapprehension that may have lingered in the jury's minds from defense counsel's examination. See Cooper v. State, 317 Ark. 485, 489, 879 S.W.2d 405, 407 (1999). The trial court did not err in allowing this testimony.

Point V: Whether the trial court erred by allowing Kimberly Wiley to bolster her testimony.

Appellant further argues that the State bolstered the witness's trial testimony, by eliciting the testimony about the reason for her inconsistent statements. See Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993) (stating that ordinarily evidence of a prior consistent statement by the declarant is not admissible to bolster credibility of the declarant because it is hearsay). However,the State's redirect examination merely rebutted appellant's implied charge of recent fabrication. See Ark. R. Evid. 801(d)(1)(ii); Frazier v. State, 323 Ark. 350, 915 S.W.2d 691 (1996). Consequently, the trial court did not err in allowing the testimony.

Point VI: Whether the trial court erred by admitting testimony regarding reverse buys.

Appellant argues that the trial court allowed a Little Rock police officer, John Merritt, to testify regarding his experience with the street value of the drugs, which included his experience with "reverse buy" transactions. In "reverse buy" transactions, undercover police stand on street corners posing as drug dealers in an attempt to apprehend buyers of the contraband. Appellant objected at trial on relevance grounds and argues here that the testimony was wholly irrelevant.

However, the exchange between counsel and the court concludes with appellant's counsel agreeing with the court that the officer was qualified to testify about the street value of cocaine in the area and stipulating to the officer's qualifications. Nothing shows that appellant was prejudiced by the trial court's ruling. Prejudice is not presumed, and we will not reverse absent a showing of prejudice. Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999).

Point VII: Whether the trial court erred by accepting inconsistent verdicts rendered by the jury.

Appellant argues that the jury's finding of guilt on the possession of paraphernalia charge is inconsistent with acquittal of the charges of maintaining a drug premises and possession with intent to deliver. However, "a defendant may not attack the inconsistency of verdicts on separate charges because res judicata does not apply, and more importantly, `the jury is free to exercise its historical power of lenity if it believes that a conviction on one count would provide sufficient punishment.'" Bridges v. State, 327 Ark. 392, 401, 938 S.W.2d 561, 565 (1997)( quoting Jordan v. State, 323 Ark. 628, 631, 917 S.W.2d 164, 165 (1996)).

Point VIII: Whether the trial court erred in revoking appellant's probation on the same evidencewhich supported his conviction and sentence for possession of drug paraphernalia.

Appellant argues that double jeopardy was violated by the court's decision to conduct a revocation hearing simultaneously with the jury trial in this case. He contends that the State should have to elect whether to pursue either the new primary case against appellant or the revocation matter, but the evidence should not be allowed to relate to both. However, Bell agreed to this procedure and "cannot complain on appeal because he received all of the relief he asked for at trial." Rankin v. State, 329 Ark. 379, 389, 948 S.W.2d 397, 402 (1997).

Therefore, finding no merit in appellant's arguments, we affirm.

Pittman and Robbins, JJ., agree.