                                Cite as 2015 Ark. App. 212

                ARKANSAS COURT OF APPEALS
                                     DIVISION IV
                                     No. CR-14-652


LASETTE McDOUGAL                                Opinion Delivered   APRIL 1, 2015
                              APPELLANT
                                                APPEAL FROM THE MISSISSIPPI
V.                                              COUNTY CIRCUIT COURT,
                                                CHICKASAWBA DISTRICT
                                                [NO. CR-11-45]
STATE OF ARKANSAS
                                APPELLEE        HONORABLE BARBARA HALSEY,
                                                JUDGE

                                                AFFIRMED



                             DAVID M. GLOVER, Judge


       On July 25, 2011, Lasette McDougal pled guilty to the underlying offenses of criminal

attempt to manufacture methamphetamine and possession of drug paraphernalia with intent

to use. He was sentenced to seven years in the Arkansas Department of Correction on the

possession charge. On the criminal attempt to manufacture methamphetamine charge, he

received five years’ suspended imposition of sentence. On April 24, 2013, the State filed a

petition to revoke the suspended sentence, alleging that McDougal delivered

methamphetamine on two occasions on September 18, 2012. The revocation hearing was

held on two days in February and May 2014. At the conclusion of the hearing, the trial

court revoked McDougal’s suspended sentence, finding that he had violated its terms and

conditions. This appeal followed, with McDougal contending 1) the trial court erred in

revoking his suspended sentence as to the first alleged drug transaction because there was a
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lack of substantial evidence of his involvement and because the testimony of Kenneth Webb

was unreliable and not credible; 2) the trial court erred in revoking his suspended sentence as

to the second alleged drug transaction because there was a lack of substantial evidence—the

video relied upon by the prosecution did not show drugs, and the testimony of Kenneth

Webb was unreliable and not credible; and 3) the trial court erred in admitting into evidence

matters relating to the alleged drugs and relying upon testimony relating to the alleged drugs

because there was a lack of substantial evidence showing a proper chain of custody and

represented a denial of his right to confront witnesses. We affirm.

                                          Background

       The drug transactions that formed the basis for revoking McDougal’s suspended

sentence were part of an undercover operation. Kenneth Webb was serving as a confidential

informant for ATF and the drug task force. Webb testified that on September 18, 2012, he

made arrangements with McDougal to buy some methamphetamines; that McDougal

instructed him to come to his apartment in Blytheville; that before he went there, officers

searched him for drugs and contraband; that he was outfitted with a video camera, and a video

was made of the operations; that in the first transaction, his initial contact was with McDougal

but another person, “Kevin,” gave him the drugs; that he asked Kevin if McDougal that sent

him out there to him, and Kevin said, “yes”; and that he gave Kevin $260 and received an

“8-ball” and some methamphetamine in return. Webb testified that the second transaction

took place at Larry’s Grocery on the same date; that the second transaction was also

videotaped; that McDougal actually met him that time and brought him the drugs; that the


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video showed McDougal leaning into the vehicle to hand him $100 worth of

methamphetamine; that Webb turned the drugs over to law enforcement; and that, in

summary, McDougal sold him drugs on two separate occasions on September 18, 2012.

       Robert Ephlin, a lieutenant with the Mississippi County Sheriff’s Department, testified

that he was involved with the September 18, 2012 drug operation involving Webb and

McDougal. He corroborated Webb’s testimony that Webb was searched, that the vehicle he

used was provided by ATF and was also searched; that neither Webb nor the vehicle had

contraband; that after the first buy, Webb turned over a small baggie of suspected

methamphetamine to Agent Becker; and that it was field-tested, weighed, initialed by Webb,

placed in an evidence bag, and turned over to Lieutenant Ephlin. Lieutenant Ephlin testified

he was also present when Webb was sent to make the second undercover buy on September

18; that the second buy took place at Larry’s Grocery; that Webb, McDougal, and Agent

Becker were shown in the video; and that after the buy, Webb turned over a small baggie of

methampehtamine. He described the procedures that were followed in identifying and

transporting the evidence to the crime lab.

       Other officers also testified and corroborated various parts of the undercover operation.

Felisia Lackey and Kelly Jarrell, chemists with the State Crime Lab, testified about receiving

the two sets of evidence at issue in this case in a sealed condition; that their testing showed

the substances to be methamphetamine and dimethyl sulfone. Both sets of evidence were

admitted over McDougal’s objections, which challenged the chain of custody because no

witness was available to testify about initially receiving the evidence at the crime lab.


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                                      Standard of Review

       To revoke probation, the trial court must find by a preponderance of the evidence that

the defendant inexcusably violated a condition of probation. Harris v. State, 2015 Ark. App.

51. The State has the burden of proof but need prove only one violation. Id. We will not

reverse the trial court’s decision to revoke unless it is clearly against a preponderance of the

evidence. Id. When the determination of a preponderance of the evidence turns on questions

of credibility and weight, we defer to the superior position of the trial court to decide these

matters. Id.

                                     The First Transaction

       With respect to the first drug transaction, McDougal contends that the trial court erred

in revoking his suspended sentence on that basis because there was a lack of substantial

evidence of his involvement and because the testimony of Kenneth Webb was unreliable and

not credible. We disagree.

       In reviewing revocation matters, our court employs a clear-error review, Harris, supra,

not a substantial-evidence review as asserted by McDougal. In addition, it is up to the trial

court to weigh the evidence and determine witness credibility.

       We find no clear error in the trial court’s finding that McDougal was involved in the

first sale of drugs to Webb. Webb testified that he arranged the sale with McDougal and that

“Kevin,” the man who actually handed the drugs to Webb, confirmed he had been told to

do so by McDougal. Webb also testified that he paid $260 for the drugs, and Agent Ephlin

testified that Webb and the vehicle he used were searched before the sale to make sure there


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was no contraband. State Crime Lab chemists testified that the substance was

methamphetamine and a cutting agent.

                                    The Second Transaction

       With respect to the second transaction, McDougal contends that the trial court erred

in finding that it provided a basis for revocation because there was a lack of substantial

evidence—the video relied upon by the prosecution did not show drugs and the testimony

of Kenneth Webb was unreliable and not credible. We disagree.

       As mentioned previously, we employ a clear-error standard in reviewing revocation

matters, not a substantial-evidence standard. In addition, it is up to the fact-finder, which was

the trial court in this instance, to assess witness credibility and the weight to be given

evidence. Testimony concerning the second transaction provided evidence that Webb

obtained that set of drugs from McDougal himself and that he paid McDougal $100 for it.

Moreover, Agent Ephlin similarly testified about Webb and the vehicle being searched for

contraband prior to the sale, and testimony from the State Crime Lab chemists established that

the second set of drugs was also established to be methamphetamine.       We find no clear error

in the trial court’s decision concerning the second drug transaction.

                                     The Chain of Custody

       For his final challenge to the trial court’s revocation of his suspended sentence,

McDougal contends that the trial court erred in admitting into evidence matters relating to

the alleged drugs and relying upon testimony relating to the alleged drugs because there was

a lack of substantial evidence showing a proper chain of custody and represented a denial of


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his right to confront witnesses. Again, we disagree.

       First, as noted by the State, McDougal did not preserve a confrontation argument, so

we will not address that portion of his argument for the first time on appeal.

       Second, there is no merit to the chain-of-custody argument. The Arkansas Rules of

Evidence are not strictly applicable in revocation proceedings. Ark. R. Evid. 1101(b)(3).

Even if they were, the purpose of establishing a chain of custody is to prevent the introduction

of evidence that is not authentic or that has been tampered with. Bowerman v. State, 2014

Ark. App. 221. To prove authenticity of evidence in a criminal trial, which would be under

more stringent requirements than is necessary for a revocation hearing, the State must

demonstrate a reasonable probability that the evidence has not been altered in any significant

manner. Id. To allow introduction of physical evidence, it is not necessary that every

moment from the time the evidence comes into the possession of a law-enforcement agency

until it is introduced at trial be accounted for by every person who could have conceivably

come in contact with the evidence during that period. Id. It is necessary only that the trial

court, in its discretion, be satisfied that the evidence presented is genuine and, in reasonable

probability, has not been tampered with. Id.

       Here, McDougal contends that there was a “break in the chain of custody, as no

testimony was presented regarding who received the evidence at the state crime lab and what

that person did with the evidence.” Sergeant John Frazier of the Blytheville Police

Department testified that he handed the evidence to a female who worked in receiving at the

lab, and two crime-lab chemists testified that they received the evidence from their lab


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technicians in a sealed condition. We find no abuse of the trial court’s considerable discretion

in admitting this evidence.

       Affirmed.

       GLADWIN, C.J., and HOOFMAN, J., agree.

       Charles E. Ellis, for appellant.

       Leslie Rutledge, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.




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