ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

RALPH NELSON WELLS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-996

September 3, 2003

APPEAL FROM THE DREW

COUNTY CIRCUIT COURT

[CR2001-56-3A]

HONORABLE R. BYNUM

GIBSON, CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Ralph Nelson Wells, was charged with the offense of possession of cocaine with intent to deliver. The case involved a drug sale between appellant and a confidential informant named Jimmy Botsford. The buy was coordinated with the Tenth District Drug Task Force, and a search warrant was obtained to search appellant's vehicle when he returned from Texas with the cocaine for Botsford. At trial, appellant did not deny that he sold cocaine to Botsford, but rather relied upon the affirmative defense of entrapment. He was tried by a jury and found guilty of the offense. He was sentenced to serve 180 months in the Arkansas Department of Correction. We affirm the conviction.

For his first point of appeal, appellant contends that the trial court erred in refusing to suppress the evidence obtained as a result of the nighttime search of his vehicle. His argument, however, focuses on the accuracy of two assertions made in the affidavit supporting the warrant rather than on the fact that it was a nighttime search. Although in making his argument to the trial court appellant did not cite Franks v. Delaware, 438 U.S. 154 (1978), it was relatively clear that he included a Franks argument at trial, thus preserving the issue for appeal. See State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). We find no error.

Our supreme court recently clarified the appropriate standard of review in cases where the trial court denies a defendant's motion to suppress evidence: "Our standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court." Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003). As we explained in Wyatt v. State, 75 Ark. App. 1, 54 S.W.3d 549 (2001), the United States Supreme Court concluded in the case of Franks v. Delaware, 438 U.S. 154 (1978), that if a defendant shows by a preponderance of the evidence that the affidavit contained a false statement by the affiant that was made knowingly and intentionally or with reckless disregard for the truth, then the false material is excised, and if the remaining content does not establish probable cause to support a search warrant, then the search warrant must be voided and the fruits of the search suppressed. Moreover, when an affidavit for a search warrant is based, in whole or in part, on hearsay, the affiant must set forth particular facts bearing on the informant's reliability, and shall disclose, as far as practicable, the means by which the information was obtained. Heaslet v. State, 77 Ark. App. 333, 74 S.W.3d 242 (2002); Ark. R. Crim. P. 13.1(b). The failure to establish the informant's veracity and bases of knowledge, however, is not a fatal defect if the affidavit viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place. Id.; Ark. R. Crim. P. 13.1(b).

Here, the affidavit supporting the search warrant provided in pertinent part:

The reliability of said informant is established by: To these affiants' knowledge this CI has no pending criminal charges, nor has CI been convicted of any felonies or misdemeanor[s], but has been convicted of speeding one time. CI has admitted to purchasing cocaine, and using cocaine, and to assisting in the delivery of drugs in the past. CI has not received any payment for this information. And all contact by CI with Wells in which this affidavit relies was observed by affiants.

(Emphasis added.)

Appellant contends that the affidavit was erroneous in two ways, both of which relate to the confidential informant's reliability: 1) by stating that there were no criminal charges pending against the confidential informant when Botsford's ex-wife had contacted law enforcement officials in Hamburg, alleging that Botsford had stolen and forged checks on their account; and 2) by stating that the confidential informant received no payment for the information that he provided when he actually received $500 from the drug task force.

Concerning the statement that Botsford had no pending charges, George Philley, a narcotics officer and one of the affiants for the search warrant, testified that he asked the confidential informant, Jimmy Botsford, why he was willing to work with the drug task force "since he had no charges against him." Moreover, Botsford himself testified, "I had no charges pending against me at that time. To date, I have not been charged with any crime." With respect to the $500 payment, Philley testified:

At the time this took place, Mr. Botsford was not paid by the Drug Task Force. He was paid after the fact, approximately four or five days later, maybe a week later. He was not paid specifically for this case. We had discussed this case with Mr. Botsford. No mention of any type of money was ever mentioned to him. . . . I paid him for another reason. That reason wasn't for making this buy. Not in its entirety. The money wasn't given to him for the buy that he done on Nelson Wells. The money was given to him - - He wanted to leave town. I give him or the Drug Task Force give him five hundred dollars so he could get out of town and with the understanding that he would return and provide further assistance to us and further narcotics deals or future narcotics deals.

In short, determining the accuracy of the matters contained in the affidavit involved credibility determinations by the trial court, and appellant did not make a substantial preliminary showing under Franks that false statements, made knowingly and intentionally or with reckless disregard for the truth, were included in the affidavit supporting the search warrant. Therefore, our review of the totality of the circumstances reveals no clear error by the trial court.

For his second point of appeal, appellant contends that the trial court erred in refusing to grant a continuance or mistrial because of the failure of the State to hand over tapes of conversations between Wells and the informant. We disagree.

This issue is based upon appellant's contention that the State engaged in discovery violations concerning the alleged existence of taped conversations. However, whether the issue is viewed as a discovery violation, a refusal to grant a continuance, or a refusal to grant a mistrial, the standard is one of abuse of discretion. See generally Smith v. State, ____ Ark. _____, 98 S.W.3d 433 (Feb. 20, 2003); Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). We find no abuse of that discretion.

As acknowledged by appellant, "This case presents a somewhat unusual situation because of the dispute about whether the missing evidence existed at all. Obviously this makes it more difficult to prove prejudice." In a preliminary hearing just prior to trial, the court pointedly asked the State's attorney, "Have you asked your agency, DTF and all the police officers involved, have you asked them for any evidence that they have, exculpatory of any type, that you intend to use?" The State responded:

The DTF agents, as soon as I heard what Mr. Botsford was saying, I went to them immediately. I asked them if there were any other tapes, if there were any other statements, and they said no, there never were any of those. Everything they did was in a room with three or four DTF agents. So it's going to be one man saying one thing and another man saying another thing, as far as if any of that exists.

(Emphasis added.)

In short, appellant's "proof" of the existence of this evidence amounted to vague allegations, and the State represented that the officers had clearly denied the existence of such evidence. The trial court exercised its discretion in refusing to grant a continuance or a mistrial on that basis, and we find no abuse of that discretion.

Affirmed.

Neal and Crabtree, JJ., agree.