Cotter woman’s appeal of drug conviction denied

Photo: Rachel Callaway

A Cotter woman sentenced to 10 years in prison for being involved in the sales of more than 20 grams of methamphetamine to a person working with law enforcement has had her appeal turned down.

Fifty-two year-old Rachel Callaway was found guilty and sentenced to 10 years in prison last year. She filed her notice of appeal July 18, 2019.

The decision of the Arkansas Court of Appeals was released Wednesday.

According to the probable cause affidavit, Callaway was accused of being involved in the sale of methamphetamine in two transactions, May 7 and
May 9, 2018.

Several investigators with the 14th Judicial District Drug Task Force monitored both sales.

A bench trial was held May 21, 2019 before Circuit Judge Gordon Webb during which the defense argued that while Callaway had been present during the two drug sales, she had played more of a passive, middleman role than active participant in the delivery of the methamphetamine.

Callaway’s attorney, Deputy Public Defender Sam Pasthing, said it was then 37-year-old Duane Burr who actually had the drugs in his possession and set the price to be paid.

Pasthing told the court his client did not handle the methamphetamine or take the money in either transaction. Testimony indicated Callaway and the confidential informant had gone to Burr’s home along Circle Drive where the meth and money actually changed hands.

Pasthing cited several prior cases he said indicated the “middleman” must play a more active role in the actual sale of the drug to sustain a delivery charge. He told the court, “leading someone to drugs is not delivering drugs.”

During the bench trial last May, Pasthing cited several cases he wanted the court to review before deciding guilt or innocence, or determining Callaway’s sentence.

Fourteenth Judicial District Prosecutor David Ethredge said from the evidence presented during the bench trial there could be “no doubt” Callaway was one of the pivotal players in the two drug deals. The Court of Appeals agreed with the prosecution. In the decision turning down Callaway’s appeal, Appeals Court Judge Robert Gladwin wrote, “We disagree with Callaway’s assertion that her level of involvement was insufficient to support her delivery of methamphetamine conviction.”

Judge Gladwin said Callaway “had done much more that merely introduce the (confidential informant) to the actual seller.”

Callaway’s actions in the two drug sales cast her more in the role of “agent and accomplice of the seller,” not a passive onlooker, Judge Gladwin wrote.

The court threw out Callaway’s argument concerning her conviction of using a cellphone to set up the two controlled buys from Burr. Judge Gladwin wrote that the issue was not raised in Callaway’s motion for a directed verdict and could not be first raised on appeal.

The defense has also contended Callaway did not ake money from the sales, but Ethredge told the court when the confidential informant left Burr’s
residence after the second buy, Callaway stayed behind with him.

Ethredge indicated there had been an opportunity for money to pass hands between Callaway and Burr at that time.

He said while the defense claimed she received no money for the two drug deals, no evidence had been offered to prove the contention.

Audio and video recordings of the two transactions were made using a “wire” worn by the confidential informant.

The audio and videotapes were played during the bench trial.

The confidential informant took the stand and testified about Callaway’s actions in setting up the two drug sales.

Ethredge contended based on the comments made on recordings of the two transactions, Callaway “knew exactly what she was doing. Duane Dunn and Rachel Callaway were both involved in selling methamphetamine,” the prosecutor told the court.

The confidential informant said she did not know Burr and testified Callaway had to direct her to the man’s house.

Things almost went haywire as Callaway and the confidential informant drove to Dunn’s house during one of the drug buys. A Mountain Home policeman pulled their vehicle over for a minor traffic offense. He was told to back off by investigators involved in the drug investigation and let Callaway and the informant go with a verbal warning.

After the stop, Callaway told the informant, “That’s the first time I ever got stopped that I didn’t go to jail.” At another point, Callaway asked to borrow the phone used to record the transactions. She wanted to call the Public Defenders’ Office and did make the call without discovering the phone was actually a “wire” being used by the confidential informant.

As the bench trial wound down, Callaway was asked if she wanted to testify. She declined.

Pasthing moved for a directed verdict at the bench trial’s conclusion, a standard procedure in which defense attorneys allege the state has not introduced sufficient evidence to convict, and the court should dismiss the charges.

Judge Webb said no. He ruled the state had put on “more than sufficient evidence that a finder of fact (judge or jury) could reach a conclusion based on that evidence.”

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