ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR02-158

September 10, 2003

ARCHILLE CLEMON JENNINGS AN APPEAL FROM MONROE

APPELLANT COUNTY CIRCUIT COURT

[CR99-49]

V. HON. L.T. SIMES, II, JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

Wendell L. Griffen, Judge

This case arises from appellant's conviction of possession of a controlled substance with intent to deliver and simultaneous possession of firearms and controlled substances in Monroe County. Previously, we remanded this case for rebriefing, Jennings v. State, CACR 02-158 (Jan. 22, 2003), but now we can reach the merits of the appeal. Appellant argues that the trial court erred in allowing the introduction of the crime lab report of the controlled substance, on the basis that certain weight-discrepancies raised a reasonable probability that a break in the chain of custody occurred. We disagree and affirm.

A jury convicted appellant, Archille Clemon Jennings, of possession of a controlled substance with intent to deliver and simultaneous possession of firearms and controlled substances. At trial, appellant's counsel objected to the admissibility of the state crime laboratory's report regarding the controlled substance. Appellant challenged the chain of custody because of the discrepancies in the weight of the cocaine in the reporting police officer's submission sheet, the state police report, and the state crime laboratory's report. The circuit court overruled the objection and admitted the report into evidence.

The record shows that the police officer in question, State Police Criminal Investigator Barry Roy, testified at trial regarding the discrepancies. He stated that the laboratory used weighing equipment with greater precision than the police officer's fish scales. In his written report, the officer stated that the cocaine weighed approximately 14.6 grams. In his evidence submission form to the state crime laboratory, the officer labeled the cocaine as weighing approximately 14.3 grams. When questioned concerning this difference, the officer testified that this was due to a typographical error. Finally, the crime lab determined that the cocaine only weighed 8.73 grams.

During trial, the officer reweighed the cocaine in front of the jury, using the exact scales used in the field to weigh the substance. That weighing produced a result of just under fifteen grams. Furthermore, the officer testified regarding his uninterrupted handling of the contraband in question. He stated that he seized the cocaine at the scene, sealed, and labeled it. He testified that he maintained exclusive control over it until he personally submitted it to the crime laboratory.

The trial court admitted the crime laboratory report after expressly pointing out that it had before it the police officer's testimony regarding the uninterrupted chain of custody. The trial resulted in appellant's conviction. He now brings this appeal.

Crime Laboratory Report

Appellant argues that the crime laboratory report should not have been admitted into evidence because the discrepancy in weight indicated in three different documents raised a reasonable probability of a break in the chain of custody. We do not reverse a trial court's ruling on the admissibility of evidence absent a showing that it clearly abused its discretion. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). The purpose of establishing a chain of custody is to prevent the introduction of physical evidence that has been tampered with or is not authentic. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with. Id. It is not necessary for the State to eliminate every possibility of tampering. Id. Minor uncertainties in the chain of custody are matters to be argued by counsel, but they do not render the evidence inadmissible as a matter of law. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997).

In support of his argument, appellant cited to Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). Appellant argued that the actual difference in weight in the present case was substantially greater than that in Guydon. In the latter case, the court stated that the "difference in testimony regarding the weight of State's Exhibit 1 was .1172 of a gram, and the difference regarding State's Exhibit 2 was .0817 of a gram." Guydon, 344 Ark. at257, 39 S.W.3d at 771. The Guydon court pointed out that the slight variation in the weight of the substance could have resulted from the differing sensitivity in the scales used by the officer and the chemist. Id. Specifically, the supreme court in that case found the minor discrepancy insufficient to raise a reasonable probability that a break in the chain of custody occurred. Id. at 258, 39 S.W.3d at 771.

In another case, Crisco v. State, supra, the Arkansas Supreme Court reversed and remanded Crisco's conviction because of the discrepancies in the officer's and the chemist's descriptions of the controlled substance involved. The officer described the substance as an "off-white powder," while the chemist described the drug as a "tan, rock-like substance." 328 Ark. at 389, 943 S.W.2d at 583. In that case, the State argued that the officer's identification of the envelope containing the drug should have been sufficient. Id. The supreme court disagreed and held that the State had to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance. Id.

In a very recent case, our own court held that it was no abuse of discretion to admit certain exhibits concerning marijuana seized in the accused's trunk. Jones v. State, __ Ark. App. __, __ S.W.3d __ (2003). We found that the existing discrepancy between the weights given by the police officers and the chemist admittedly were considerable, namely 17 pounds, but the trial court in that case had available testimony explaining the difference. Id. The police weighed the contraband along with its containers and other items found, while the state crime laboratory weighed the contraband alone. Id. In Jones v. State, we also pointed out that Crisco v. State, supra, did not involve comparable facts, in that Crisco v. State concerned a discrepancy in description, not in weight. Id.

In the present case, we hold that the weight discrepancy does not raise a reasonable probability of a break in the chain of custody and, therefore, that the trial court did not err in admitting the crime lab report into evidence. First, as stated above, the State introduced testimony by the relevant police officer concerning the disputed discrepancy. The court had available testimony by the officer explaining the discrepancy as a result of using different scales. The court even had available an in-court demonstration that showed the amount measured in the state crime lab (namely 8.73 grams) as approximately weighing the same amount as the police report stated (to wit "almost fifteen grams," compared to 14.6 or 14.3 grams stated in the police documents) when using the police scales instead of the lab scales. Appellant did not object to that demonstration, nor does he raise an objection now on appeal.

Second, the trial court also had available before it the officer's testimony establishing that he seized the cocaine at the scene, sealed, and labeled it, as well as maintained exclusive control over it until he personally submitted it to the crime lab. The trial court specifically found that after weighing, the cocaine was locked away until brought to the crime lab, and that the police officer testified that the person who received the cocaine at the lab weighed and labeled it. Notably, appellant never argued that there was any other reason to doubt the chain of custody, such as wrong labels, different appearance of the contraband, or the like. At this point, we are also mindful that the fact finder-in evidentiary matters, this is the judge-weighs witness credibility, not the appellate court. See Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002).

Third, probably the least important and most debatable, the State is correct in stating that the actual weight difference in the present case is greater than that in the Guydon case, but the proportional difference is not. The State computed the weight difference concerning the Guydon Exhibit 1 as 39% (an actual difference of .1172 grams) and in Exhibit 2 as 41% (an actual difference of .0817 grams). In the present case, the difference is 39% (an actual difference of 5.57 grams), using the weight as indicated in the police officer's evidence submission form of 14.3 grams, compared with the lab determination of 8.73 grams. Therefore, we find that Guydon is not as distinct from appellant's case as he would like us to think.

However, as discussed above, the trial court had before it sufficient evidence to find that the chain of custody was not broken and that, consequently, the weight discrepancy, explained by available testimony and in-court demonstration, did not have much significance. Therefore, we hold that the trial court did not abuse its discretion by admitting into evidence the report in question and affirm.

Affirmed.

Gladwin and Bird, JJ., agree.