Cite as 2014 Ark. App. 474
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-1121
DALE HARVEY BROWN Opinion Delivered September 17, 2014
APPELLANT
APPEAL FROM THE VAN BUREN
COUNTY CIRCUIT COURT
[NO. CR-12-116]
V.
HONORABLE CHARLES E.
CLAWSON, JUDGE
AFFIRMED; REMANDED WITH
STATE OF ARKANSAS INSTRUCTIONS TO CORRECT
APPELLEE SENTENCING ORDER
PHILLIP T. WHITEAKER, Judge
Appellant Dale Brown was charged with one count of manufacturing more than four
ounces but less than twenty-five pounds of marijuana, a Class C felony. A Van Buren
County jury convicted him of the offense and sentenced him to three years’ suspended
imposition of sentence. On appeal, Brown raises two arguments. His first is a two-pronged
challenge to the sufficiency of the evidence, arguing that the State 1) failed to prove that
marijuana is a Schedule VI controlled substance, and 2) failed to prove that he manufactured
the weight of marijuana necessary for a Class C felony. In his second point, Brown asserts
that the circuit court erred in allowing the State to introduce the crime laboratory analyst’s
report into evidence.
Cite as 2014 Ark. App. 474
I. Sufficiency of the Evidence
Brown’s first argument on appeal is that the trial court erred in denying his motion
for a directed verdict. A directed-verdict motion is a challenge to the sufficiency of the
evidence. Populis v. State, 2011 Ark. App. 334; Draper v. State, 2010 Ark. App. 628, 378
S.W.3d 191. When reviewing a challenge to the sufficiency of the evidence, the appellate
court will affirm the conviction if there is substantial evidence to support it, when viewed
in the light most favorable to the State. Populis, supra. Substantial evidence is evidence that
is of sufficient force and character that it will, with reasonable certainty, compel a conclusion
one way or another without resort to speculation or conjecture. Id.
In the first point of his two-part challenge to the sufficiency of the evidence, Brown
argues that the circuit court erred in denying his motion for directed verdict. In making that
motion at trial, Brown argued that there had been “no testimony that what [the crime-lab
analyst] analyzed and determined was a Schedule VI controlled substance within the meaning
of the Arkansas criminal statutes.” The court overruled the motion, and the following
colloquy then occurred:
DEFENSE: Judge, does that specifically include the fact that one of the elements is
that he manufactured a Schedule VI controlled substance? There’s been
no testimony with regard to this being a Schedule VI controlled
substance.
STATE: As a matter of law, marijuana is a Schedule VI controlled substance.
The court can make that finding as a matter of law. That’s a legal
conclusion to be made, not a factual conclusion.
COURT: My ruling includes that finding, yes, sir.
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On appeal, Brown continues to argue that the State failed to introduce proof of an
element of the offense with which he was charged: i.e., that marijuana is a Schedule VI
controlled substance. We disagree, however, because our supreme court has specifically
rejected this argument. In Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995), the
court held as follows:
Our law is well-established that courts may take judicial notice of agency
regulations adopted pursuant to law, and that it is not necessary to formally introduce
the regulations into evidence for the court to do so. Arkansas courts have long taken
judicial notice of the State Health Department’s regulations classifying controlled
substances into particular schedules. As observed in Johnson [v. State, 6 Ark. App. 78,
638 S.W.2d 686 (1982)], the Director of the State Health Department is given
authority to designate controlled substances pursuant to Ark. Code Ann. § 5-64-201
(Repl. 1993). Section 5-64-201 requires the Director’s schedules to be adopted in
accordance with the Arkansas Administrative Procedure Act, Ark. Code Ann. §§ 25-
15-201 to -214 (Repl. 1992 & Supp. 1993). Thus, the schedule of controlled
substances is a regulation promulgated by a state agency pursuant to statute and in
accordance with state procedural requirements. The schedule or agency regulation is
a part of the substantive law the trial court must determine and then apply to the facts
of the case before it.
Id. at 585, 892 S.W.2d at 505–06 (citations omitted). See also Lively v. State, 25 Ark. App.
198, 201, 755 S.W.2d 238, 240 (1988) (holding that it was unnecessary for the State to offer
evidence that cocaine was listed by the Health Department as a Schedule II controlled
substance or that cocaine is classified by the legislature as a narcotic drug).
Brown nonetheless argues that even if, during the colloquy on the directed-verdict
motion, the State asked the circuit court to take judicial notice of the fact that marijuana is
a Schedule VI controlled substance, the State failed to ask the circuit court to instruct the
jury that it had taken notice of an adjudicative fact in accordance with Arkansas Rule of
Evidence 201(g). This argument is without merit. In Lively, supra, this court held that Rule
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201 governs judicial notice only of adjudicative facts, and the controlled-substance statute and
regulations involved in that case “[did] not constitute ‘adjudicative facts.’” Lively, 25 Ark.
App. at 201, 755 S.W.2d at 239–40; see also United States v. Gould, 536 F.2d 216, 219–20 (8th
Cir. 1976) (holding that Federal Rule of Evidence 201(g) extends only to adjudicative facts,
not legislative facts, which are “established truths, facts or pronouncements that do not
change from case to case but apply universally” and that are not “fact[s] which would
traditionally go to the jury”). As such, Brown’s argument is without merit.
In the second part of his sufficiency argument, Brown contends that the circuit court
should have directed a verdict as to the Class-C-felony component of the charge and instead
found him guilty of, at most, a Class A misdemeanor pursuant to Arkansas Code Annotated
section 5-64-439(b)(3) (Supp. 2013). That statute provides that the manufacture of marijuana
is a Class C felony if a person manufactures more than four ounces but less than twenty-five
pounds, including an adulterant or diluent. Section 5-64-439(b)(1) makes the manufacture
of marijuana a Class A misdemeanor if the amount manufactured is less than fourteen grams.
We find no merit to Brown’s argument based on the evidence introduced at trial.
Officers with the Twentieth Drug Crime Task Force seized twenty-one marijuana plants
from Brown’s property. The plants were taken to the Drug Task Force office; the leaves
were stripped from the stems and spread out to dry for several days; and the resulting
material, along with a smoking pipe and some loose leaves found in a bowl in Brown’s
house, were packed into separate zip-lock evidence bags and labeled as E-1A and B, E-3, E-
4, and E-5.The evidence bags were then sent to the crime lab for analysis. Once the bags
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arrived at the crime lab, analyst Felicia Lackey took samples from each of the bags and
performed three separate tests to determine whether the substance in the bags was marijuana.
The test results showed that each bag contained marijuana. Lackey’s laboratory report further
showed that the total aggregate weight of the material in the evidence bags was 407.7 grams,
or 14.381 ounces. On cross-examination, Lackey testified that, in testing the materials
submitted to the crime lab, she used .3 grams from each evidence bag, for a total of 1.5 grams
that were tested.
On appeal, Brown specifically argues that Lackey’s testimony conclusively established
only that there were 1.5 grams of marijuana. Brown maintains that the circuit court should
therefore have granted his motion for directed verdict as to the felony designation of the
offense, because 1.5 grams falls below the 4 ounces necessary to sustain a Class C felony
conviction.
There is no merit to this argument. In light of the laboratory report, it is clear that
there was sufficient evidence to support Brown’s conviction for manufacturing more than
four ounces of marijuana. Although Brown argues in his second point on appeal that
Lackey’s report should not have been introduced, when we consider an appeal where
sufficiency of the evidence is an issue and there are also arguments that certain evidence
introduced during trial was inadmissible, we consider all the evidence, even that which may
have been erroneously admitted at trial. Woods v. State, 2013 Ark. App. 739, 431 S.W.3d
343; Ryan v. State, 30 Ark. App. 196, 199, 786 S.W.2d 835, 837 (1990). For these reasons,
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it is clear that there was sufficient evidence to support Brown’s conviction for manufacturing
more than four ounces of marijuana.
II. Evidentiary Ruling
In his second point on appeal, Brown argues that the circuit court should not have
allowed the State to introduce Lackey’s report into evidence. Brown objected to the
introduction of Lackey’s report at trial, arguing that it was irrelevant because she had already
testified about the contents of the report. He further argued that the “report doesn’t match
up with what her testimony is” because she testified that she tested a sample but never said
what the aggregate weight of the marijuana was. The circuit court overruled Brown’s
objection.
On appeal, Brown continues his argument that the report was not relevant under the
Arkansas Rules of Evidence and in light of Lackey’s testimony. We review trial court
decisions to admit evidence under an abuse of discretion standard. Guydon v. State, 344 Ark.
251, 39 S.W.3d 767 (2001); McCastle v. State, 2012 Ark. App. 162, 392 S.W.3d 369.
The Arkansas Rules of Evidence define the relevancy of evidence and its admissibility
in court. Arkansas Rule of Evidence 401 defines “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” Rule 402
provides that “[a]ll relevant evidence is admissible, except as otherwise provided by statute
or by these rules or by other rules applicable in the courts of this State. Evidence which is not
relevant is not admissible.” Ark. R. Evid. 402. Although relevant, evidence may be excluded
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if its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. Ark. R. Evid. 403.
We find no error in the introduction of Lackey’s laboratory report. The report was
relevant under Rule 401 because the weight of the marijuana was an element of the offense.
Ark. Code Ann. § 5-64-439(b)(3). Because the report was relevant, it was admissible under
Rule 402. Moreover, there was no basis for excluding the report under Rule 403 because
it was not cumulative, as Lackey did not specifically testify about the aggregate weight of the
marijuana. Finally, the report may have been prejudicial to Brown, insofar as it supplied
proof of an element of the offense; however, as the supreme court has repeatedly pointed
out, evidence offered by the State in a criminal trial is likely to be prejudicial to the
defendant to some degree, otherwise it would not be offered. Vance v. State, 2011 Ark. 243,
at 23, 383 S.W.3d 325, 341; Rounsaville v. State, 2009 Ark. 479, at 12, 346 S.W.3d 289, 296.
The prejudicial nature of the evidence did not outweigh its probative value. Accordingly,
we conclude that the circuit court did not abuse its discretion in allowing the State to
introduce the report into evidence.
As a final matter, we note a discrepancy between the jury’s sentencing
recommendation of thirty-six months’ suspended imposition—which the circuit court
accepted and memorialized on the original sentencing order—and the amended sentencing
order, which sentences Brown to thirty-six months in the Arkansas Department of
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Correction, with thirty-six months suspended. We remand to the circuit court to enter an
amended sentencing order that clearly reflects Brown’s sentence.
Affirmed; remanded with instructions to correct sentencing order.
GRUBER and VAUGHT, JJ., agree.
Hancock Law Firm, by: Charles D. Hancock, for appellant.
Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
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