                                Cite as 2017 Ark. App. 256

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                     No. CR-15-577



                                                 Opinion Delivered   April 26, 2017

   MICHAEL HUNTER                       APPEAL FROM THE COLUMBIA
                              APPELLANT COUNTY CIRCUIT COURT
                                        [NO. 14 CR-13-60]
   V.
                                                 HONORABLE DAVID W. TALLEY,
   STATE OF ARKANSAS                             JR., JUDGE
                                 APPELLEE
                                                 AFFIRMED AS MODIFIED;
                                                 REMANDED TO CORRECT THE
                                                 SENTENCING ORDER


                          BRANDON J. HARRISON, Judge

        In 2013 the State charged Hunter with one count of engaging in a continuing

criminal enterprise. Specifically, it alleged that Hunter had “violated a felony provision of

the Uniform Controlled Substance Act, namely, the Delivery of a Controlled Substance-

Cocaine and Methamphetamine.” The State claimed that the violation was part of a

continuing series of two or more felony offenses: delivery of cocaine and delivery of

methamphetamine. It further alleged that Hunter acted in concert with five or more people

when he committed “these violations” and that Hunter received substantial income from

the operation. The conduct was alleged to have occurred between 2006 and 2013. The

State later amended its criminal information to include a habitual-offender enhancement,

Ark. Code Ann. § 5-4-501(a)(1) (Supp. 2007).



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       The case went to a bench trial on 8 April 2014 before the Columbia County Circuit

Court, and a sentencing order was entered on 28 April 2015. The sentencing order reflects

that the circuit court convicted Hunter of one count of engaging in a continuing criminal

enterprise and sentenced him to 70 years’ imprisonment in the Arkansas Department of

Correction and an additional 10 years’ suspended imposition of sentence (SIS) for that count.

Hunter appeals the April 2015 sentencing order and the related conditions of the SIS.

                               I. The Evidence Against Hunter

       We first address Hunter’s challenge to the sufficiency of the evidence. He argues

that the State did not prove every element of Arkansas’s continuing-criminal-enterprise

statute beyond a reasonable doubt and goes through each of the twenty-one trial witnesses’

testimony. The standard of review for whether the verdict is based on sufficient evidence

is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier

of fact could have found that the State proved the essential elements beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307 (1979). Direct or circumstantial evidence may

provide substantial evidence to support a verdict. Campbell v. State, 2009 Ark. 540, 354

S.W.3d 41. Substantial evidence is that evidence which is of sufficient force and character

that it will, with reasonable certainty, compel a conclusion one way or the other, without

resorting to speculation or conjecture. Id. Circumstantial evidence alone may constitute

substantial evidence. Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). When

circumstantial evidence alone is relied upon to support a conviction, it must indicate the

accused’s guilt and exclude every other reasonable hypothesis.             Id.   Only when




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circumstantial evidence requires the fact-finder to speculate and conjecture is it insufficient

as a matter of law. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991).

                              A. The Primary Felony Offense

       Arkansas Code Annotated section 5–64–405 (Supp. 2013), which is the continuing-

criminal-enterprise statute, provides that

       (a) A person commits the offense of engaging in a continuing criminal
           enterprise if he or she:


              (1) Violates any provision of this chapter that is a felony, except §§ 5–
              64–419 and 5–64–441; and

              (2) The violation is a part of a continuing series of two (2) or more
              felony offenses of this chapter, except §§ 5–64–419 and 5–64–441:

                     (A) That are undertaken by that person in concert with five (5)
                     or more other persons with respect to whom that person
                     occupies a position of organizer, a supervisory position, or any
                     other position of management; and

                     (B) From which that person obtained substantial income or
                     resources.

       Because no exception applies in this case, the first element the State must prove under

Ark. Code Ann. § 5–64–405 is that Hunter committed a felony under the Controlled

Substances Act. See Hughey v. State, 310 Ark. 721, 723, 840 S.W.2d 183, 184 (1992). We

call this the “primary felony offense.” And we infer from the record as a whole that the

primary offense occurred when Hunter delivered 0.8048 grams of methamphetamine to

Rachel Cole in 2007. (We must infer this because the State does not pointedly identify the

primary offense for statutory-analysis purposes.)




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       The State says it proved that Hunter was “engaged in at least two instances of the

Class Y felony delivery of controlled substance, one Class C felony delivery of a controlled

substance, one Class C felony delivery of a counterfeit substance, and multiple counts of

operating a drug premises.” Failing to identify a primary felony offense, the State says only

that the evidence showed that Hunter “committed the requisite underlying felonies and

these felonies were, no doubt, part of a series of a CCE.” For due-process reasons, we reject

the State’s use of underlying offenses (against Hunter) that were not named in the criminal

information. We also remind the State that a prosecutor’s closing arguments should not be

cited as substantial evidence supporting Hunter’s conviction. Lawyers’ arguments are not

evidence. Ligon v. Stilley, 2010 Ark. 418, 371 S.W.3d 615.

       Moving on . . . Hunter argued in his motions to dismiss, as he does here, that “at

most” the State proved that he introduced callers to the person who eventually sold drugs

and that there is no credible evidence that he delivered methamphetamine—only that he

“may have possessed” it. Simply possessing a controlled substance is not a qualifying offense

under the continuing-criminal-enterprise statute. See Ark. Code Ann. § 5–64–405 and –

419.

                                    1. The trial testimony

       The court’s review of the record shows the following. Rachel Cole testified at trial

as a State’s witness. She said that she worked with law-enforcement officer Michael

Caldwell in 2007 and that she twice tried to buy drugs from Hunter. The first time she

called Michael Hunter he told her to go to the Ponderosa, a trailer house that Hunter used.




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There, she bought drugs from Derek Hunter, the defendant’s brother, 1 using money that

Officers Wilson and Caldwell provided. Cole explained that she had known Michael Hunter

all her life, recognized his voice on the telephone, and that during their telephone

conversation she and Michael had discussed the price of drugs and what she wanted. She

further explained that she gave Derek Hunter $100 at the Ponderosa and that he handed

her a rock-like substance, which she later gave to Officer Caldwell. Cole also testified about

another time she called Michael Hunter, and he told her to go to a trap house on Dempsey;

there she bought drugs from Cadetric Box. During the course of the direct examination,

the State stipulated that Cole didn’t “know what she bought. She’s not a chemist.”

       On cross-examination, Cole said that these purchases occurred in September 2007

and that she had started working with Officers Caldwell and Wilson in exchange for the

dismissal of an aggravated-robbery charge. She clarified that when she talked to Michael

Hunter she told him that she wanted to buy some crack cocaine and that “he told me to

meet him at the Ponderosa.” When asked if Michael Hunter sold her any drugs, she said

“No.” Cole explained that the transaction was recorded because she was wearing a wire.

No recording was introduced as evidence. 2

       Officer Michael Caldwell testified that he had worked narcotics for the Magnolia

Police Department since 2007, that he was also currently assigned to an FBI task force, and



       1
       Other witnesses identified Derek as Michael Hunter’s mother’s boyfriend. So it
seems there are two Dereks in this case: Derek Hunter and Derek Coleman.
       2
      A bench conference was held where the court ruled that the missing-recording issue
was “moot” after hearing arguments that the recording had been lost or destroyed.

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that he was an agent with the Drug Task Force. Officer Caldwell stated, in part, that the

Ponderosa was located at 131 Columbia 56 and that it was a “location where Michael

Hunter and other individuals dealt drugs.” His conclusion was based on police interviews

of numerous people. He explained that he and Officer Robert Wilson met with Rachel

Cole on 19 September 2007. They told Cole to go straight to the Ponderosa and come

back to a prearranged location. Officer Caldwell said they provided buy money to Cole.

Cole returned to the prearranged location and gave the officers “the suspected

methamphetamines.” Officer Caldwell explained that the suspected meth was delivered to

the Arkansas State Crime Lab and identified State’s Exhibit 13 as the lab-submission report

he had signed. He connected State’s Exhibit 13 with State’s Exhibit 14—the latter exhibit

being the crime-lab report showing that suspected methamphetamine submitted was in fact

0.8048 grams of methamphetamine dimethyl sulfone. Hunter expressly waived on the

record any right he may have had that a “crime lab person” testify during trial and agreed

to the crime-lab report being admitted as evidence against him. Officer Caldwell testified

that he did not arrest Hunter in 2007, but continued to surveil him for the next six to seven

years. According to Officer Caldwell, Michael Hunter’s usual mode of operation was to

use a third party to deliver the drugs.

       The Chief of Police of Waldo, Arkansas, Robert Philson, testified that he knew

Hunter personally and spoke with Hunter on 28 March 2010 and asked him about some

arrests that had been made the day before. During the conversation, Philson said that

Hunter admitted that he sold drugs to take care of his family and “put some women on the




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side and pay bills” and that he was arrested with “large sums” of cash in Greenville, Texas,

as he was journeying to buy drugs in Dallas.

       FBI Special Agent Forrest Avery Benham testified that he talked to Hunter after a

search warrant had been executed in March 2013 at Hunter’s residence in Waldo, Arkansas.

Hunter told Agent Benham that he would obtain approximately one-half to one ounce of

methamphetamine weekly from a family member who was a supplier and that “he did not

feel comfortable trafficking in narcotics with just anyone.” Based on his conversation with

Hunter, Agent Benham estimated Hunter had been earning about $250 per week for the

past three years from selling a one-half ounce of meth. Hunter indicated that, before that

three-year period, he had obtained narcotics from a man in Dallas, Texas. Agent Benham

testified that Hunter showed him where the drugs he sold were hidden at the house on 205

Angela.

       On cross-examination, Agent Benham said Hunter had indicated that he received

between thirteen and twenty-seven grams of methamphetamine a week and that Agent

Benham considered that a “fair amount of narcotics” for Waldo, Arkansas, although Hunter

indicated to Agent Benham that he was “just trying to get by and that he had financial

challenges.” On redirect examination, Agent Benham said he estimated Hunter had earned

a total of $39,000 in tax-free income over the past three years.

       Another witness for the State, Barry Poindexter, testified that he met Hunter at a

John Deere dealership in Magnolia, Arkansas around the end of 2004 or 2005. He explained

that he developed a business relationship with Hunter by buying methamphetamine from

him and then reselling it. He started off with small amounts, and as time went by, worked

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up to a quarter ounce (seven grams). Poindexter testified that between 2007 and 2012 he

bought drugs from, or was given drugs by, Hunter more than twenty times. He said that

these buys took place “everywhere,” including the Ponderosa. Poindexter explained, in

part, that the Ponderosa was a trailer house that Hunter owned. He also said that whenever

a drug transaction occurred, wherever it was, it would begin with a call to Hunter, although

it was not always to the same telephone number. He said that he had dealt with twenty to

thirty different individuals, but mainly with Derek Coleman and Ricky Biddle, following a

telephone call to Hunter inquiring about drugs. He said that when he would call Hunter,

Hunter would tell him to call another number and that other number “was him [meaning

Hunter.]” They would talk “business and prices” and Hunter would tell Poindexter where

to wait, and “they would bring me the drugs.” He confirmed that he was “recruited to be

a drug dealer for D.D. Hunter.” 3

                    2. The testimony and the continuing-criminal-enterprise statute

       The statute in force in 2007 when the methamphetamine delivery to Cole was

alleged to have occurred provided that the State must prove that Hunter knowingly or

purposely delivered methamphetamine.             Ark. Code Ann. § 5–64–401 (Supp. 2007).

“Deliver” or “delivery” means the “actual, constructive, or attempted transfer from one (1)

person to another of a controlled substance or counterfeit substance in exchange for money

or anything of value, whether or not there is an agency relationship.” Ark. Code Ann. §




       3
           Several witnesses said Hunter is also known as D.D.


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5-64-101(6). Delivery of less than 28 grams of methamphetamine was classified as a Class

Y felony for “any purpose other than disposition.” Ark. Code Ann. § 5-64-401(a)(1)(A)(i).

       As we said earlier, Hunter argues that he did not deliver the drugs. But the circuit

court, sitting as the fact-finder, could have reasonably found that Hunter constructively

transferred methamphetamine to Cole.          Although Hunter did not meet Cole when

delivering the drugs—nor was he physically present when the meth was transferred—he did

participate in the drug transaction by arranging the price and the location for Cole to buy

methamphetamine. Cole arrived at the Ponderosa, a known drug location, and received

drugs from Derek at the price and location Hunter had prearranged. This circumstantial

evidence, combined with Hunter’s admission to law-enforcement agents that he was a drug

dealer, and Poindexter’s testimony about the Ponderosa and Hunter’s method of operation,

is substantial evidence that Hunter constructively delivered methamphetamine to Cole on

19 September 2007.

      B. Continuing Series of Two or More Felony Controlled Substance Offenses

       The second element of the continuing-criminal-enterprise statute the State must

prove is that the course of illicit conduct spanned a definite period of time; and a “series” is

established by proof of three or more related violations. Hughey, 310 Ark. at 723–24, 840

S.W.2d at 184 (internal citation omitted). The Arkansas Supreme Court has said that

“[u]nder the wording of our statute element two is met if there are two felonies under the

act in addition to the felony committed by the defendant.” Id. So the State had to prove

that the primary offense was part of a continuing series of two or more other felony-drug

offenses. Again, Hunter’s sole argument on this element is that the State failed to prove that

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he delivered methamphetamine. We hold that there was sufficient proof that Hunter

constructively delivered methamphetamine to Anna Estes in 2009 and Donnell Burnell in

2011.

                                  1. Delivery to Anna Estes

        Anna Estes testified that she was an unwilling witness for the State. The caveat

having been spoken, she then told the court that she went to the Ponderosa numerous times

to buy drugs from either Hunter or through one of his associates. She also said that she had

a sexual relationship with Hunter and was herself a drug addict. According to Estes, she

would text Hunter, he would tell her where to go, and someone would deliver drugs to her

car. Estes said that she went to the Ponderosa “a lot” between 2007 and 2009 to buy drugs.

        On 6 October 2009, Estes was “busted” by Officer Caldwell. She reportedly told

Caldwell that she got the drugs from D.D. in Waldo and was delivering them to a friend,

Greg Fuller. Estes explained that she was selling drugs at the time to support her habit and

that she would hold the drugs for 3–4 days before she sold them. Although she was arrested

for selling methamphetamine, Estes received a “break” with a reduced charge and addiction

treatment.

        On cross-examination, Estes explained that the break she received from the

prosecuting attorney did not include testifying against Michael Hunter. When she was

arrested by Officer Caldwell, Estes was also selling ecstasy pills, though she had bought them

from someone other than Hunter. Estes clarified that she was arrested in October 2009 but

did not make a deal with the prosecuting attorney until 23 June 2011, which included nolle

prossed charges. Estes told the court that when she purchased drugs from Hunter, “they

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took place anywhere,” including a hamburger place or in the middle of the street in Waldo.

Prior to the transactions, Estes would communicate through text messaging with a person

she thought to be Hunter, though she was not certain it was him. Hunter never appeared

at any of the drug transactions, according to Estes, and he never personally handed her drugs.

She also denied that Hunter sent her to a location to buy drugs.

       On redirect examination, Estes explained that Hunter provided her with a number

to call or text for drugs and that he would text her a new number when he changed phones.

On recross, she stated that she did not know for sure who gave her the phone number that

she testified Michael Hunter had given her. But on redirect she said that she had no reason

to believe it was anyone other than Hunter.

       Officer Caldwell testified that Hunter used tracphones and that he used other

people’s phones in the course of his drug dealing.        Officer Caldwell stated that law

enforcement identified one phone that was actually registered to Hunter. He explained that

on 6 October 2009 he came into contact with a man named Greg Fuller during a search of

a residence in Magnolia, Arkansas. Fuller had a phone and was in the process of arranging

a purchase of methamphetamine and ecstasy from Anna Estes. Officer Caldwell assumed

Fuller’s identity and exchanged texts with Estes wherein she agreed to deliver ecstasy and

methamphetamine to a certain location. Officer Caldwell surveilled the area and when

Estes arrived, he arrested her.

       According to Officer Caldwell, Estes told him that she had gotten the

methamphetamine from Michael Hunter and the ecstasy from another individual. Caldwell

then placed the recovered substances into evidence and submitted it to the Arkansas State

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Crime Lab. He testified that State’s Exhibit 11 is a lab-submission sheet that is consistent

with the numbers that go with the laboratory report that is State’s Exhibit 12. State’s Exhibit

12 shows that one of the substances recovered was 1.4142 grams of methamphetamine and

the other substance was four pills of benzylpiperazine (BZP). Anna Estes is listed as the

suspect on the report.

       When Hunter allegedly delivered the meth to Estes in October 2009, the State had

to prove that Hunter knowingly or purposely delivered the methamphetamine. Ark. Code

Ann. § 5-64-401 (Supp. 2009). “Deliver” or “delivery” means the actual, constructive, or

attempted transfer from one (1) person to another of a controlled substance or counterfeit

substance in exchange for money or anything of value, whether or not there is an agency

relationship. Ark. Code Ann. § 5-64-101(6).

       The State put on sufficient proof that Hunter constructively delivered

methamphetamine to Estes. In addition to his admissions to law-enforcement agents about

being a drug dealer that we have already recited, the circuit court heard that Estes frequently

went to the Ponderosa (and other locations) to buy drugs as directed by Hunter to buy

drugs. It was up to the circuit court to credit Estes’s testimony as it saw fit to do. While

circumstantial, there was sufficient proof that it was Hunter who constructively transferred

methamphetamine to Estes; and Estes, in turn, attempted to resell the meth to Greg Fuller

but was instead arrested by Officer Caldwell, who recovered the methamphetamine. We

reject Hunter’s argument that he cannot be guilty of delivering methamphetamine to Estes

because he did not physically deliver the drugs.




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                               2. Delivery to Donnell Burnell

      Donnell Burnell, a felon, testified for the State that he agreed to make buys for Agent

Crawford of the Drug Task Force. He recalled some work involving Michael Hunter,

whom Burnell calls D.D. He testified that he knew Hunter’s voice on the phone and had

known Hunter for years. Burnell called Hunter, and Hunter told him to meet him at the

Lee Biddle Trailer Park. Burnell explained that Cory Briggs had given him Hunter’s

number and that the call was about buying some hard meth or “ice.” When Burnell arrived

at the Lee Biddle Trailer Park, he saw Hunter there but did not speak with him. Corey

Briggs handed Burnell “ice,” and Burnell handed Briggs $305 that Officer Crawford had

given him.

       On cross-examination, Burnell said that the entire conversation he had with Hunter

on the phone was recorded. Burnell later explained that the first telephone call he made to

Hunter requesting “ice” was not recorded, but a second call was.

      Detective Shawn Crawford testified that he recruited Burnell to assist him in the

Hunter investigation. Detective Crawford explained that Burnell was “into some trouble”

himself for delivering controlled substances. Crawford said that one phone call Burnell

made was not recorded. Burnell was furnished with electronic-surveillance equipment and

$325 of buy money from the sheriff’s buy fund and sent “on his way.”

      After Burnell bought the drugs, he met Detective Crawford at a prearranged location

and returned the recording equipment and suspected narcotics. Detective Crawford placed

the drugs Burnell gave him in an evidence bag and sealed it. The crime-lab submission

sheet for that evidence bag, which Detective Crawford signed, was admitted as State’s

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Exhibit 2, without objection. The offense date is listed as 08/17/2011 and the suspect’s

name is listed as Corey Briggs. State’s Exhibit 7, a crime-lab report, was introduced without

any testimony about it and without objection. State’s Exhibit 7 has the same case numbers

and offense date (08/17/2011) as State’s Exhibit 2 and reflects that the substance was 3.2348

grams of dimethyl sulfone methamphetamine.

       Officer Caldwell testified that he had listened to an audio tape of Donnell Burnell

and believed the voices on the tape to be Burnell’s and Michael Hunter’s. State’s Exhibit 5

is a recorded call made on 17 August 2011. The recording begins with “[a]pproximate time

is 5:54. Sergeant Michael Caldwell with Detective Shawn Crawford. The C.I. [Burnell] is

about to make a phone call to D.D.” The call is essentially about Hunter directing Burnell

on how to get to Lee Biddle Trailer Park. There is no mention of drugs.

       State’s Exhibit 6 is the August 17 video recording. It captured a conversation

between Burnell and Corey Briggs about money and driving past the trailer park. A

conversation between Burnell and Sergeant Caldwell and Detective Crawford follows.

Burnell says that D.D. “won’t come out that trailer” and that “he sent Corey to handle it

man.” The officers confirmed on the recording that D.D. (Hunter) arranged for the drugs

to be delivered to Burnell by Corey Briggs and that he was present at the trailer.

       Here, Hunter again argues that he did not deliver methamphetamine to Burnell.

Under the statute in place when Hunter allegedly delivered drugs to Burnell, a person who

delivers two grams (2g) or more but less than ten grams (10g) by aggregate weight, including

an adulterant or diluent, of methamphetamine or cocaine upon conviction is guilty of a

Class B felony. Ark. Code Ann. § 5-64-422 (Supp. 2011). The definition of delivery

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remains unchanged: “Deliver” or “delivery” means the actual, constructive, or attempted

transfer from one (1) person to another of a controlled substance or counterfeit substance in

exchange for money or anything of value, whether or not there is an agency relationship.

Ark. Code Ann. § 5-64-101(6).

       We hold there was sufficient evidence that Hunter constructively delivered

methamphetamine to Burnell in August 2011. There was evidence that Burnell called

Hunter, and Hunter negotiated the price and location. Burnell showed up at the location

(Lee Biddle Trailer Park). Corey Briggs then exchanged methamphetamine for $305 from

the sheriff’s buy fund. These facts, combined with the testimony and other admissions we

have discussed earlier, is substantial evidence of a constructive delivery of methamphetamine

from Hunter to Burnell, through Corey Briggs.

       We therefore affirm on the “second element” of the offense under Hughey—that the

State sustained its burden of proving a continuing series of two or more felony controlled-

substance offenses when it proved that Hunter, at a minimum, constructively delivered

methamphetamine to Anna Estes and Donnell Burnell. 4

                  C. Organizer, Supervisor, or Some Management Role

       The State must also prove Hunter donned the role of organizer, supervisor, or some

managerial position in the criminal enterprise and did so in concert with at least five




       4
         We do not discuss the timing of the deliveries, how the deliveries relate to one
another, and whether they meet the test of being a “continuing series.” Hunter argued the
topic below, but he abandoned it on appeal. The sole argument on this element is that the
State failed to prove that he delivered a controlled substance.
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additional people. Ark. Code Ann. § 5-64-405(2)(A). On appeal, Hunter argues, as he did

in his motion to dismiss at the close of all the evidence that,

               [e]xcluding the law enforcement officers, the State paraded a veritable
       rogue’s gallery of sorry characters before the trial court. Nearly all of them
       testified only because the State forced them to do so; nearly all of them are
       drug addicts, convicted felons, or both; and none of them offered any credible
       evidence that . . . any of the persons from whom they purchased drugs acted
       in concert with, or under the direction or influence of Mr. Hunter.

       In Leavy v. State, the supreme court summarized the management provisions of the

continuing-criminal-enterprise statute this way:

              The government need not establish that the defendant managed five
       people at once, that the five acted in concert with each other, that the
       defendant exercised the same kind of control over each of the five, or even
       that the defendant had personal contact with each of the five. In essence the
       management element is established by demonstrating that the defendant
       exerted some type of influence over another individual as exemplified by that
       individual’s compliance with the defendant’s directions or instruction.

Leavy v. State, 314 Ark. 231, 237, 862 S.W.2d 832, 834 (1993) (internal citation omitted).

                             1. More evidence on Hunter as CEO

       In addition to the testimony we have recited already, more trial testimony is relevant

to this leadership element. Officer Todd Dew of the Magnolia Police Department testified

that he was present when a search warrant was executed on 21 March 2013 at Hunter’s

residence. He explained that he found a total of $1,860 in Hunter’s pants and wallet. Harry

Washington of the Hunt County Sheriff’s Office in Texas testified that he encountered

Hunter as a passenger during a traffic stop on I-30 in April 2011. Hunter had $5,600 in his

tennis shoe.   On 2 June 2011, Officer Washington encountered Hunter again while

conducting consensual searches on a Greyhound bus. Hunter was carrying $10,984 in his

crotch area and that money was seized by the State of Texas.
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       Ashley Ellis testified that she called Hunter in 2011 and told him that she wanted

some methamphetamine and met him at the Ponderosa. When she arrived, Michael Hunter

left the Ponderosa, and Derek Hunter came in and “gave [her] the dope.”

       Saquita Easter, one of Hunter’s girlfriends, testified that Hunter took her to hotels

and on trips to Dallas where they stayed and shopped, that Hunter drove a Suburban with

rims, and that $20,000 to $30,000 in cash was hidden in the vehicle. Easter said that Hunter

would give the cash to a man named Claudie Miller when they got to Dallas. Special Agent

Forrest Avery Benham testified that he knew about Claudie Miller’s case and that Miller

had been indicted by the U.S. Attorney’s Office and convicted of narcotics trafficking.

       Easter also testified that the Ponderosa was where most of the drug transactions took

place. She said that Derek 5 “basically pretty much brought D.D. the money back” during

the drug transactions. She confirmed that John Armstrong would do the same thing—“[h]e

had took something down the road and pretty much just threw it out the window” and

would bring back money to Michael Hunter. Ditto for Dexter Greene. On cross-

examination, Easter confirmed that Hunter would give drugs to Armstrong to deliver and

Armstrong would return with money. The “same thing” would happened with Mr.

Coleman and Mr. Green. She confirmed that she only saw this happen with those three

people.




       5
      It is unclear during this direct examination which Derek—Derek Hunter or Derek
Coleman—Easter is referring to. On cross-examination it is apparent that Easter refers to
Derek Coleman.
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       John David Woodard testified that he would call Hunter and tell him he was looking

for something [methamphetamine] and Hunter would say “Okay. Well, go to the Dairy.”

Woodard would go to the Dairy and somebody would meet him there, usually Derek

Coleman, and Woodard would hand over $100 and receive one gram of meth. On cross-

examination, Woodard testified that Hunter would never tell him who to go see, “[h]e

would just say to go someplace and then somebody would come.”

       Jessica Giles said under oath that she received drugs from Hunter in exchange for

money or sex on a regular basis. On 15 December 2011 she helped Officer Crawford with

his investigation by wearing a recording device and was given $100 in buy money. Giles

went to the Ponderosa, and Hunter tried to get her to have sex with him; she refused and

put money on a counter. According to Giles, Hunter “got nervous” and told her to sit in

the car. A man who called himself J.J. got in the car with her and told her that Hunter had

sent him there to give her drugs. State’s Exhibits 8 and 9 were recordings Giles made at

Officer Caldwell’s request. These exhibits showed that she ultimately bought the drugs

from J.J. Walker.

       Officer Caldwell testified that he had surveilled the now infamous Ponderosa using

confidential sources who would arrive there, get out with vehicles still running, go inside

the Ponderosa, and come out a few seconds later, and report illegal activity.

                       2. The CEO element and pulling it all together

       No single witness (1) testified that Hunter organized, supervised or managed a

criminal enterprise and (2) identified five people who acted in concert with him. But there

was testimony by Saquita Easter that Hunter exerted control over three people: John

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Armstrong, Dexter Greene, and Derek Coleman. And Barry Poindexter agreed that Hunter

had recruited him as a drug dealer. That’s four people.

       The State’s case was additionally based on circumstantial evidence from which the

circuit court could reasonably infer that Hunter was the leader of a drug operation. FBI

Special Agent Forrest Avery Benham testified that Hunter was a dealer who moved a “fair

amount of narcotics” in the area. He based his opinion on the drugs found in Hunter’s

residence and Hunter’s confession to him. Law-enforcement officers also found large

amounts of cash on Hunter’s person in a traffic stop and on a Greyhound bus, which they

implied was consistent with the practice of drug dealers. Easter said that Hunter would take

Miller $20,000 to $30,000 in Dallas. Agent Benham testified that Miller was later convicted

of drug trafficking.    What’s more, the State offered circumstantial evidence that

methamphetamine buyers would call Hunter, and Hunter would direct his various dealers

when and where to meet the buyers with the drugs. The State established this through the

testimony of its witnesses Rachel Cole, Donnell Burnell, Anna Estes, Jessica Giles, John

David Woodard, and Ashley Ellis, among others.

       Here, the circumstantial evidence and direct testimony was sufficient to support the

court’s conclusion that Hunter exerted some type of influence over five (or more) people.

Their compliance with his directions or instructions make the case. In the end, we are

satisfied that the evidence sufficiently supports the conclusion that Hunter’s drug operation

included at least Derek Hunter, Derek Coleman, J.J. Walker, John Armstrong, Dexter

Greene, Cadetric Box, Barry Poindexter, and Corey Briggs—and Hunter was the CEO.




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                  D. Hunter Received Substantial Income From Drug Deals

          As a final point, Hunter argues that the State did not prove beyond a reasonable

doubt that he realized substantial income or resources from an ongoing narcotics enterprise.

We disagree.

          The State presented testimony from Hunter’s past romantic relationships. Ashley

Martin testified that she traded sex for drugs with Hunter and became pregnant by him in

2009. She said that he had a car-detail shop at one time, that he worked, but she did not

ever see him there. According to Martin, Hunter provided about $500–$600 in five years

to support the child she had with him. Kellie Dover testified that Hunter would give her

money from time to time—“$20 here and $30 there”—to support the child they had

together. She said that Hunter had fifteen kids and was not “rolling in a lot of money.”

Dover also testified that Hunter did not have a job. Ava Brown testified that she had a child

with Hunter in 2007 and that he has helped her some financially—“$100, $150 here and

there.”     Taiwashan Satterwhite testified that she and Hunter lived together and had

biological children together. According to Satterwhite, Hunter worked at John Deere “a

long time ago,” but she never saw his paycheck and that he did not pay more than $200 to

$300 a month to help support her and the children. On cross-examination, she said that he

provided her with a used car and that he filed tax returns but did not receive refunds because

“child support took it.”

          Dr. Lupetha Rasheed testified in Hunter’s defense. She said that Hunter was a part

of a social entrepreneurship project, and he worked at a detail shop that she opened in

January 2013. She explained that Hunter made deposits for her business, averaging between

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$2,000 and $3,000 per month, and that the State had wrongly seized some of that money

in a civil-forfeiture action but she could not get the money back because it was being held

as evidence.

       Given all of the testimony we have recited previously, we hold that the State’s proof

was sufficient. The record as a whole supports the conclusion that Hunter was unemployed

or underemployed during most of the seven-year period at issue; yet he was shown to have

had large amounts of cash at various times. Hunter himself admitted receiving income from

selling methamphetamine, and Officer Avery testified that he thought Hunter received

around $39,000 in three years. Easter testified that she saw Hunter with up to $30,000 cash

at one time, and he was stopped by law enforcement on a Greyhound bus with over $10,000

on his person for an unexplained reason. Dr. Rasheed’s body shop was not opened until

2013, the year Hunter was arrested on the continuing-criminal-enterprise charge, and it was

undisputed that he had not been employed at John Deere for a long time. Yet from 2007

to 2013 he provided financial gifts and support to his girlfriends and numerous children and

had large amounts of cash on his person at various times. The circuit court could reasonably

infer that Hunter derived substantial income from selling methamphetamine, and the State

provided sufficient evidence to indicate Hunter’s guilt and exclude every other reasonable

hypothesis. We affirm on this point.

                              II. The Circuit Court’s Sentence

       Sentencing in Arkansas is statutory. Gray v. State, 2014 Ark. 417, 443 S.W.3d 545

(per curiam). No sentence may be imposed unless a statute so permits. Atkins v. State, 2014

Ark. 393, 441 S.W.3d 19. The supreme court has said that an illegal sentence may be

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corrected by the appellate courts on their own initiative. Cook v. State, 46 Ark. App. 169,

878 S.W.2d 765 (1994) (citing Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994)). A

void or illegal sentence is one that fails on its face. Lovelace v. State, 301 Ark. 519, 785

S.W.2d 212 (1990). If a sentence is within the limits set by statute, however, then it is legal.

Grissom v. State, 2013 Ark. 417. We have an illegal sentence in this case that requires

correction.

                                A. Hunter’s Illegal Sentence

       The plain language of the appealed sentencing order shows that Hunter was given

70 years’ imprisonment in the Arkansas Department of Correction and 10 years’ SIS for one

count of engaging in a continuing criminal enterprise. The order also provides that an 840-

months period of confinement accompanies the SIS. The order thus presents a couple of

problems.     (Given the interrelated nature of the sentencing statutes and our detailed

discussion of them and the order, we have appended the complete four-page sentencing

order to this opinion.)

       Ark. Code Ann. § 5-64-405 (Supp. 2013) provides:

              (b)(1) A person who engages in a continuing criminal enterprise upon
       conviction is guilty of an unclassified felony and shall be sentenced to a term
       of imprisonment up to two (2) times the term otherwise authorized for the
       underlying offense referenced in subdivision (a)(1) of this section and shall be
       fined an amount up to two (2) times that authorized for the underlying offense
       referenced in subdivision (a)(1) of this section.

             (2) For any purpose other than disposition, engaging in a continuing
       criminal enterprise is a Class Y felony.

             (c)(1) A person who violates subsection (a) of this section after a
       previous conviction under subsection (a) of this section has become final upon
       conviction is guilty of an unclassified felony and shall be punished by a term
       of imprisonment not exceeding three (3) times that authorized for the
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       underlying offense referenced in subdivision (a)(1) of this section and a fine
       not exceeding three (3) times the amount authorized for the underlying
       offense referenced in subdivision (a)(1) of this section.

             (2) For any purpose other than disposition, engaging in a continuing
       criminal enterprise is a Class Y felony.
       Here, the sentencing range for a first-time, continuing-criminal-enterprise

conviction is linked to the primary, underlying drug offense—meaning the section (a)(1)

offense. In other words, section (b)(1)’s sentencing range is tethered to the sentencing range

of what we have been calling the primary offense (the section (a)(1) offense charged). And

early on we said the primary offense (the (a)(1) offense)—without any help from the State—

must have been the 2007 Class Y felony delivery of methamphetamine to Rachel Cole.

Under the statute in force when the primary offense was committed, the sentencing range

for delivery of methamphetamine was 10–40 years or life, and a $25,000 fine. See Ark.

Code Ann. § 5-64-401 (now repealed). Arkansas Code Annotated section 5-64-405(b)(1)

provides that the circuit court could imprison Hunter for up to two times the term allowed

for the primary (a)(1) offense (the 2007 Class Y delivery of meth to Rachel Cole). Because

Hunter did not receive life, the maximum time the court could impose was an aggregate

term of 80 years; that number is double the 40-year maximum range for the Class Y felony

for delivering meth to Rachel Cole. Ark. Code Ann. § 5-64-405(b)(1). Hunter’s sentence

is within the statutory limits.

       But the court overstepped its authority when it sentenced Hunter to the 10 years’

SIS for the continuing-criminal-enterprise charge. Arkansas Code Annotated section 5-64-

405 forbids that disposition:

       (e) An offender found guilty of a violation of this section shall not:

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              (1) Have his or her sentence suspended;
              (2) Be placed on probation;
              (3) Have imposition of sentence suspended;
              (4) Have the execution of the sentence deferred;
              (5) Have the sentence deferred; or
              (6) Be eligible for § 16-93-301 et seq.

Ark. Code Ann. § 5-64-405(e)(3) (emphasis added). Arkansas Code Annotated section 5-

4-104(e)(1)(A)(vi) also states that suspended imposition of sentences are not allowed for

continuing-criminal-enterprise convictions. Ark. Code Ann. § 5-64-104 (e)(1)(A) (“The

court shall not suspend imposition of sentence as to a term of imprisonment nor place the

defendant on probation for the following offenses . . . . (vi) Engaging in a continuing

criminal enterprise, § 5-64-405.”). We must therefore strike the 120 months’ SIS portion

of the circuit court’s sentencing order because it is not allowed. We also strike the 840-

month period of confinement accompanying probation or SIS that is marked in the

sentencing order because Hunter could not be placed on probation or SIS for a continuing-

criminal-enterprise conviction.

       Recall the list of prohibited sentences listed in section 5-64-405 (with emphases

added):

       (e) An offender found guilty of a violation of this section shall not:

              (1) Have his or her sentence suspended;
              (2) Be placed on probation;
              (3) Have imposition of sentence suspended;
              (4) Have the execution of the sentence deferred;
              (5) Have the sentence deferred; or
              (6) Be eligible for § 16–93–301 et seq.

       Next, we turn to the habitual-offender enhancement. As we stated earlier, the State

charged Hunter as a habitual offender under Arkansas Code Annotated section 5-4-

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501(a)(1). While the State presented evidence of prior convictions, the circuit court did

not find that Hunter was a habitual offender in its oral rulings. Additionally, the first-offense

(engaging in a continuing criminal enterprise) section in the sentencing order was not

marked to show that Hunter was, in fact, sentenced as a habitual offender. In other words,

the court made no mark in the habitual-offender box (pursuant to Arkansas Code Annotated

section 5-4-501). The third page of the sentencing order, however, identifies “5-4-501

Habitual Offender” as a separate offense, with a separate sentence of 70 years’ imprisonment

and 10 years’ SIS. But nothing in the order indicates whether this habitual-offender

sentence runs consecutive to or concurrent with the first offense (the continuing-criminal-

enterprise conviction). The “total time to be served for all offenses” stated in the appealed

sentencing order is 840 months (70 years).

       The bottom-line problem is Hunter was only charged with only one crime:

engaging in a continuing criminal enterprise. And the habitual-offender statute, in the

phrase of the case law, “does not create a distinct additional offense or independent crime

but simply affords evidence to increase the punishment and to furnish a guide for the court

or jury in fixing the final punishment in event of conviction of the offense charged.” Traylor

v. State, 304 Ark. 174, 176, 801 S.W.2d 267, 268 (1990); Ark. Code Ann. §§ 5-4-501 to –

505. The circuit court separately sentenced Hunter to 70 years’ imprisonment and 10 years’

SIS under the “5-4-501 Habitual Offender” statute. But the habitual-offender status is not

a separate crime or offense. So on remand the sentencing order must be corrected to show

that Hunter was convicted of only one offense:            engaging in a continuing criminal




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enterprise. We affirm, however, the sentencing order’s statement that the total time Hunter

received as a sentence on all offenses is 840 months (70 years).

        B. The Circuit Court’s Upward Deviation from the Sentencing Standards

       Hunter’s second point on appeal is that the circuit court abused its discretion when

it deviated upward by 250% from the Arkansas Sentencing Commission’s presumptive

sentence of 240 months’ imprisonment when it sentenced him to 840 months’

imprisonment. We review this point for an abuse of discretion. Whittier v. State, 2015 Ark.

App. 536.

       The Arkansas Sentencing Standards recommend similar sentences for similar

offenders, with similar criminal histories. Ark. Code Ann. § 16-90-801 (Repl. 2016). This

helps ensure that sanctions imposed are proportional to the seriousness of the offense of the

conviction and an offender’s criminal history.      Ark. Code Ann. § 16-90-801(b), (c).

Applying the sentencing standards is, however, a voluntary process. A circuit court can

deviate from the presumptive sentence without providing a written justification for doing

so. Ark. Code Ann. §§ 16-90-803, –804(a).

       Under the voluntary, presumptive standards, there is a grid. Two dimensions of the

grid represent the primary determinants of a sentence—the offense’s seriousness and the

offender’s history. Ark. Code Ann. § 16-90-803(b). The Arkansas Sentencing Commission

classifies the seriousness of engaging in a continuing criminal enterprise as a Level 9 Y

offense. Ark. Code R. 154.00.1-III-1 (Weil 1994). On remand, the seriousness-level box

should be marked level 9, not 8. Offender criminal history is determined by referring to

Arkansas Code Annotated section 16-90-803, which allocates points for different levels of

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prior offenses. Because Hunter’s prior felony records were more than fifteen years old, and

his prior misdemeanor record was more than ten years old, they do not count toward his

criminal history under the presumptive standards. Ark. Code Ann. § 16-90-803(C)(v)(b)–

(c). Consequently, Hunter’s criminal-history score is 0, which is what he argued to the

circuit court during the sentencing hearing. The sentencing order, however, gave Hunter

a mistaken criminal-history score of 2.

       Hunter is correct that the presumptive sentence is 240 months (20 years), given his

criminal-history score (0) and the seriousness level of the crime (9). Ark. Code R. 154.00.1-

III-1. On remand, the presumptive sentence listed in the sentencing order (184.80 months)

should be corrected to 240 months. But determining the presumptive sentence for Hunter’s

continuing-criminal-enterprise conviction is not the end of the process. Departure criteria

and procedures are determined by statute. See Ark. Code Ann. § 16-90-804. The circuit

court added 50 years to the presumptive sentence of 20 years. Here is what the court wrote

to support such an upward departure:

               The offense was a major controlled substance offense if two or more
       of the following are present: (a) Three or more separate transactions involve
       sale, transfer or possession with intent; (b) Amounts substantially larger than
       the statutory minimum which defines the offense; (c) Offense involved a high
       degree of planning or occurred over a lengthy period of time or involved a
       broad geographic area; (d) Offender occupied a high position in the drug
       distribution hierarch; (e) Offender misused position of trust or status or
       fiduciary duty to facilitate commission; (f) Offender has received substantial
       income or resources from drug trafficking.

Given the novella-length testimony recited in this opinion against Hunter, and because the

presumptive sentencing standards are merely advisory, we hold that the court did not abuse

its discretion by departing from the presumptive sentence of 20 years’ imprisonment and

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imposing 70 years’ imprisonment against Hunter on the continuing-criminal-enterprise

conviction.

                                       III. Conclusion

       Hunter’s continuing-criminal-enterprise conviction—and the circuit court’s decision

to impose a 70-year sentence on that charge—is affirmed. But we remand this case to the

court to correct its sentencing order in some particulars. To summarize, on the continuing-

criminal-enterprise charge, we strike the 120 months’ SIS and the 840-month period of

confinement accompanying the SIS because the statutes do not support those dispositions.

Also on remand, the criminal-history score should be a 0, the seriousness level should be a

9, and the presumptive sentence should be 240 months. Finally, the total sentence imposed

should be 840 months; and there should be no separate offense titled “habitual offender.”

      Affirmed as modified; remanded to correct the sentencing order.

      HIXSON and BROWN, JJ., agree.

       Terrence Cain, for appellant.

       Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.




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