Owens v. State

Cite as 2017 Ark. App. 109

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-768

Opinion Delivered: February 22, 2017
KEVIN SPENCER OWENS, SR.
APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
V. SMITH DISTRICT
[NO. 66FCR-15-459,66FCR-15-1003,
STATE OF ARKANSAS AND 66FCR-15-1005]
APPELLEE
HONORABLE STEPHEN TABOR,
JUDGE

AFFIRMED

MIKE MURPHY, Judge

On June 10, 2016, Kevin Spencer Owens, Sr., was convicted by a jury of three

counts of delivery of methamphetamine and sentenced to twenty-three years’

imprisonment. On appeal, he argues that the trial court erred by (1) granting the State’s

motions in limine precluding him from questioning the criminal informant about his prior

convictions and sentences; (2) prohibiting him from eliciting testimony from four witnesses

about his family and work history; and (3) allowing the State’s rebuttal witness to testify.

We find no error and affirm.

I. Background

In November 2014, the Fort Smith police set up a controlled buy with Owens

through a paid criminal informant. In exchange for $100, the criminal informant, who had

a long criminal history, purchased an eighth of an ounce of methamphetamine from Owens
Cite as 2017 Ark. App. 109

for $250. The police provided the money for the purchase to the informant, and he wore a

wire during the transaction.

The criminal informant set up another controlled buy in January 2015. This time,

the informant introduced Owens to an undercover police officer, David Stewart, who made

the purchase. Stewart, while wearing a wire, purchased about half an ounce of meth for

$750. For facilitating the delivery, Stewart let Owens keep 1/16 of an ounce of the meth.

Stewart set up a third controlled buy directly with Owens in February 2015 for

another half ounce. Owens received 1/16 of an ounce of meth as payment for the delivery

on that occasion, as well.

Owens was charged with three counts of delivery of methamphetamine. At trial,

Owens argued the affirmative defense of entrapment, contending the police and the

informant lured or baited Owens to commit the crime by preying on his addiction when

they tempted him with meth in exchange for delivering the drugs.

II. Entrapment

Entrapment occurs when a law-enforcement officer or any person acting in

cooperation with a law-enforcement officer induces the commission of an offense by using

persuasion or other means likely to cause a normally law-abiding person to commit the

offense. Ark. Code Ann. § 5-2-209 (Repl. 2013). Conduct merely affording a defendant an

opportunity to commit an offense does not constitute entrapment. Id. When proving the

affirmative defense of entrapment, a defendant is allowed reasonable latitude in presenting

whatever facts and circumstances he claims constitute an entrapment, subject to ordinary

rules of admissibility. E.g., Young v. State, 308 Ark. 647, 651, 826 S.W.2d 814, 816 (1992).

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Evidence having any tendency to make the existence of entrapment more probable is

admissible. See, e.g., id.; Ark. R. Evid. 401.

III. Standard of Review

Trial courts are afforded wide discretion in evidentiary rulings. McCoy v. State, 354

Ark. 322, 325, 123 S.W.3d 901, 903 (2003). Specifically, in issues relating to the admission

of evidence under Arkansas Rule of Evidence 401, we have held that a trial court’s ruling

is entitled to great weight and will not be reversed absent an abuse of discretion. Id. Abuse

of discretion is a high threshold that does not simply require error in the trial court’s

decision, but requires that the trial court act improvidently, thoughtlessly, or without due

consideration. Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004).

IV. Motions in Limine

Prior to trial, the State filed two motions in limine seeking to prohibit Owens from

attacking the credibility of the criminal informant through his convictions that were more

than ten years old and from eliciting testimony about the sentences the informant received

for those convictions. The trial court granted the motions, and Owens argues this was in

error. Owens contends he was not seeking the testimony for impeachment purposes, but

instead because the testimony was independently relevant to his entrapment defense under

Arkansas Rule of Evidence 401.

Owens asserts the informant’s criminal history and sentences were necessary to

determine what the informant may have told Owens to establish he was not a snitch or a

cop, thereby persuading or inducing Owens to commit the crime.

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We disagree. It seems rather attenuated that an informant discussing his reputation

should induce or persuade someone to commit a crime. To be fair, it might make a would-

be criminal more likely to trust the informant, but this is not the same thing as inducing one

to act through persuasion. See Ark. Code Ann. § 5-2-209 (Repl. 2013). Furthermore,

Owens could not demonstrate any prejudice on this point, as the jury had already heard,

through the criminal informant’s own testimony during the State’s case-in-chief, that he

had an extensive criminal history. Because the testimony Owens sought to elicit was already

in evidence, he could not demonstrate any prejudice on appeal, and court will not reverse

an evidentiary ruling absent a showing of prejudice. Sauerwin v. State, 363 Ark. 324, 327,

214 S.W.3d 266, 269 (2005).

V. Exclusion of Witnesses

At trial, the court sustained several of the State’s relevancy objections to testimony

regarding Owens’s life history, including his marriage, job history, and interactions with his

children. Owens argues this was relevant to establish that he was a normally law-abiding

person, because the testimony would have established that, prior to 2005 when Owens

became addicted to methamphetamine, he had a solid job, a good marriage, and a good

relationship with his son.

In the context of this case, “relevant” means evidence that had any tendency to make

the existence of entrapment any more or less probable. See Ark. R. Evid. 401. While

evidence may be relevant even though it is somewhat remote in time from the occurrence

of the crime, see Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991), whether or not

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Owens was a good person in 2005 does nothing to demonstrate if he was a normally law-

abiding person ten years later when the crimes were committed.

The balancing of probative value against prejudice is a matter left to the sound

discretion of the trial court, and the court did not abuse its discretion in finding the

testimony too remote and therefore irrelevant in this instance.

VI. Rebuttal Witness

“Deliver” or “delivery” requires actual, constructive, or attempted transfer of a

controlled or counterfeit substance from one person to another in exchange for money or

anything of value, Ark. Code Ann. § 5-64-101(6)(Repl. 2016), and the State had the burden

to prove that occurred here.

It is within the trial court’s discretion whether to admit rebuttal testimony, and the

appellate court will not reverse this determination absent an abuse of that discretion.

Kincannon v. State, 85 Ark. App. 297, 303, 151 S.W.3d 8, 12 (2004). Rebuttal evidence is

evidence that is offered in reply to new matters, even if it overlaps the evidence presented

in the State’s case-in-chief, as long as the testimony is responsive to evidence presented by

the defense. Id. The scope of a rebuttal witness’s testimony is accorded wide latitude and

will not be restricted merely because it could have been presented on direct examination.

Id.

At trial, Owens consistently testified that he did not keep any of the money

exchanged for the methamphetamine, and that he received only a fraction of the drugs as

payment. The State called Paul Smith, the director of the Drug Task Force for Sebastian

and Crawford Counties, to establish that the drugs Owens received for the transaction

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constituted something of value. Owens objected, arguing that, because he never denied

receiving the drugs as payment, the testimony was irrelevant and should have been excluded.

Owens reasons that the evidence of whether payment was received is not relevant

under Rule 401 because “when the defense of entrapment is invoked, it is necessarily

assumed that the act charged was committed,” and “the only relevant issue in the case was

whether or not entrapment had occurred.” He cites Young v. State, 308 Ark. 647, 826

S.W.2d 814, but Young was abrogated in 2011 by Smoak v. State, 2011 Ark. 529, 385 S.W.3d

257, which concluded that a defendant could, in fact, assert the entrapment defense even if

he denies one or more elements of the crime. Despite Owens’s argument on appeal, the

State was never relieved of its burden to prove that he facilitated the transaction in exchange

for money or something of value beyond a reasonable doubt. Owens denied taking any

money but did concede he received drugs as payment. The State put Smith on to testify

that drugs constituted something of value as contemplated by the statute. This is appropriate

rebuttal testimony, and the trial court was not remiss in allowing it.

Affirmed.

WHITEAKER and VAUGHT, JJ., agree.

Danielson Law Firm, PLLC, by: Elizabeth “Betsy” Danielson, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.

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