Ruben Marmolejo was convicted in a jury trial for being an accomplice to delivery of methamphetamine and was sentenced to twenty-five years’ imprisonment and a fine of $15,000. As his sole point on appeal, Marmolejo contends that the trial court abused its discretion by admitting evidence of prior bad acts under Arkansas Rule of Evidence 404(b). We hold that any error in the admission of the evidence was harmless, and we affirm.
The charge against Marmolejo resulted from an undercover officer’s purchase ofmethamphetamine at the home of Tyler West on February 16, 2006, when Marmolejo and Cody Poole were there. Marmolejo filed a motion in limine to exclude anticipated testimony by West and Detective Andy Lee, an undercover narcotics investigator, that Marmolejo had been West’s drug supplier in the past. The State argued at the pretrial hearing that West’s testimony would establish his credibility and explain why the case proceeded as it did. According to the State, West’s testimony would explain “why a drug transaction was set up with Ruben Marmolejo, and why he was contacted and these events were set into motion as a whole. The State believes it is necessary in order to establish its case today that Ruben Marmolejo was an accomplice to the delivery in question.” The State also anticipated, in order to establish why the officers “proceeded as they did,” bringing out through Detective Lee’s testimony “that West told him he could set him up with one of his suppliers and that he named that supplier as Ruben Marmolejo.”1
Marmolejo responded that being West’s past supplier was not relevant to the question of what happened inside the house when Poole delivered the drugs on February 16, 2007. He also argued that any probative value of proof of his previous relationship with West would be grossly outweighed by the prejudicial effect of testimony “in the very beginning” that Marmolejo was a drug dealer.
The court ruled that the testimony would be allowed, stating as follows:
The reason I think that it is relevant is that we have to assume the defense will not present any defense. The burden in this case is on the prosecution to prove its case beyond a reasonable doubt and that the credibility of the State’s witnesses has a bearing on burden and whether they can meet it.
I think that to grant the motion in limine is, in essence, forcing the prosecution to try its case in a vacuum. If their case develops, as I think it is going to develop, you have this Tyler West making assurances to Andy Lee of what he can do and why. Then you have Tyler West making contact with Mr. Marmolejo. I think the testimony is admissible to show a state of mind and to explain his actions. Otherwise, as I said, you have got the State trying to prove its case in a vacuum.
The prosecutor informed the jury during opening statements that West told investigators “he could set up a drug deal with his supplier and he named that supplier as Ruben Mar-molejo.” As the State’s first witness, Detective Lee testified that West was “very cooperative” on February 16, 2006, when officers executed a search warrant at West’s residence, where Lee had made other drug buys. Lee testified that West said he owed Marmolejo $1300 for fifteen grams of methamphetamine West had taken to his residence after stealing it from Marmolejo. Lee stated, “West agreed to work with us and set us up with two of his suppliers. He identified Cody Poole and Ruben Marmolejo as the suppliers.” The trial court then instructed the jury that the testimony was being allowed into evidence, not as proof that Marmolejo had been a drug dealer or supplier at some previous time, but only to explain West’s state of mind and the actions he took, should the jury believe the testimony.
Lee testified that the following events occurred in his presence at West’s residence. West telephoned two people, whom he identified as Marmolejo and Poole, to arrange a delivery of methamphetamine that same night. Marmolejo and Poole arrived at the residence in Marmolejo’s van. Poole began negotiating with Lee but looked to Marmolejo for approval or disapproval of the prices discussed, which Marmolejo gave by nodding or shaking his head. Lee then negotiated directly with Marmolejo, settling on $2400 for two ounces of methamphetamine. Poole handed the tape-wrapped drugs to West, who handed them to Detective Lee Kelley, who handed them to Lee, who confirmed the weight with Marmolejo and Poole before giving the money to Poole. Mar-molejo was present the entire time. Lee testified, “Based upon my experience and training, Ruben Marmolejo was definitely in control of this drug transaction.”
West testified that he was “busted” when the search warrant was executed at his house. He stated, “I discussed with the officers making a buy with Ruben Marmolejo. He is a dealer.” The court then directed the jury’s attention to the limiting instruction previously given during Detective Lee’s testimony. The court instructed the jury that, similarly, West’s testimony about his relationship with Marmolejo was allowed for the limited purpose of explaining West’s state of mind and what action he took that evening, and not as proof that Marmolejo was a drug dealer or had done previous dealings.
After the limiting instruction was given, West testified that he had once been a dealer for Marmolejo. Regarding the events of February 16, 2006, West stated that he set up the deal for two ounces of methamphetamine to be delivered and for the $1300 he owed Marmolejo to be picked up. West said that Poole and Marmolejo came to the house, that Poole and Lee argued over the price, that Poole looked at Marmolejo for each price, and that Marmolejo would shake his head to indicate yes or no.
Poole testified that he went to Marmolejo’s house after receiving a telephone call to come, and methamphetamine was in the garage when he arrived. Using scales that were in the garage and tape from Marmolejo’s house, Poole wrapped the drugs into packages. When a call came on Marmolejo’s phone, Poole and Marmolejo traveled to West’s residence to make the deal, with Marmolejo driving his van. Poole handed the drugs to Marmolejo on the way out the door, Marmolejo handed them back on the way to West’s house, and Poole threw two ounces of methamphetamine on the coffee table in West’s living room. Poole testified that during negotiations he was not watching Marmolejo, who was “within feet” behind him for the entire transaction and could hear what was going on.
Detective Lee Kelley testified that he helped execute the search warrant and that West said he could introduce the officers to his suppliers. Kelley testified that West made phone calls to arrange for the delivery of the methamphetamine, that Marmolejo and Poole showed up, that Poole put the drugs on the table, that Lee and Poole initially talked about price, and that Lee began dealing with Marmolejo. Kelley said that Poole looked at Marmolejo to get the “yea or nay” on each price discussed. Kelley testified that Marmolejo, who could see and hear what was going on, watched the entire transaction and agreed with Poole that “the dope would weigh out.” Kelley characterized Marmolejo as “pretty much the main guy” giving the okay on prices and said that “a lot of dealers have guys underneath them that deal for them.”
Evidence of Prior Bad Acts
In issues relating to the admission of evidence under Ark. R. Evid. 401, 403, and 404(b), a trial court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Even when a circuit court errs in admitting evidence, the appellate court will affirm the conviction and deem the error harmless if the evidence of guilt is overwhelming and the error is slight. Eastin v. State, 370 Ark. 10, 257 S.W.3d 58 (2007); Anderson v. State, 71 Ark. App. 200, 33 S.W.3d 173 (2000). To determine if the error is slight, we can look to see if the defendant was prejudiced. Wooten v. State, 93 Ark. App. 178, 217 S.W.3d 124 (2005).
Here, the jury had before it testimony that West arranged for a methamphetamine deal by phoning Marmolejo and Poole. Poole testified that he packaged the methamphetamine in Marmolejo’s garage, using scales that were there and tape from Marmolejo’s house. Poole handed Marmolejo the packaged drugs, Marmolejo handed them back, and Marmolejo drove his van to West’s house for the drug deal. Marmolejo could see and hear the entire transaction in the living room. According to the undercover officers, Marmolejo indicated his approval or disapproval of proposed prices by nodding or shaking his head, the final price was negotiated directly with him, and he confirmed the weight of the drugs.
West testified that he called Marmolejo and set up the deal. Detective Kelley stated that many dealers “have guys underneath them that deal for them” and that Marmolejo was “pretty much the main guy who was giving the okay on prices.” Kelley concluded “without a doubt” that Marmolejo was in charge of the drug deal. Detective Lee testified, based on his experience and training, that “Marmolejo was definitely in control of this drug transaction.”
We hold that, even if testimony referring to Marmolejo as a drug dealer or supplier should have been suppressed, the error was harmless in view of overwhelming proof of guilt as presented through the testimony as summarized above.2 Prejudice is not presumed, and a conviction will not be reversed on appeal absent a showing of prejudice by the defendant. Eastin, supra.
Affirmed.
Pittman, C.J., and Gladwin, Glover, and Vaught, JJ., agree. Griffen, J., dissents.Detective Lee Kelley (Kelley) was involved with Andy Lee (Lee) in the controlled buy, and each gave testimony in this case.
The dissent relies in part upon Phavixay v. State, STS Ark. 168, 282 S.W.3d 795 (2008), in which our supreme court reversed and remanded the appellant’s conviction for delivery of methamphetamine upon holding that evidence of his prior drug transaction was error under Rule 404(b). Because Phavixay did not analyze the issue ofharmless error, it does not guide our present decision.