Robert Bryan Holt v. State of Arkansas

ar00-055

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOHN F. STROUD, JR.

DIVISION III

ROBERT BRYAN HOLT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-55

September 27, 2000

APPEAL FROM THE GREENE

COUNTY CIRCUIT COURT

[CR99-041]

HONORABLE SAMUEL TURNER, JR., CIRCUIT JUDGE

AFFIRMED

Robert Bryan Holt was found guilty after a jury trial in Greene County Circuit Court of manufacturing methamphetamine. He contends on appeal 1) that the trial court erred in not granting a mistrial based upon the State's alleged reference during closing arguments to his failure to testify, and 2) that the evidence presented at trial was insufficient to support his conviction for manufacturing a controlling substance. We affirm.

Sufficiency of the Evidence

We consider the sufficiency of the evidence before addressing other alleged trial errors. Sera v. State, 341 Ark. 415, ___ S.W.3d ___ (2000). When the sufficiency of the evidence is challenged on appeal of a criminal conviction, we review the evidence, including

any evidence which may have been erroneously admitted, in the light most favorable to the State and affirm if there is substantial evidence to support the verdict. Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992). The issue in the present case is whether there was sufficient evidence to show that appellant unlawfully manufactured, delivered, or possessed methamphetamine with intent to manufacture or deliver. See Ark. Code Ann. § 5-64-401(a) (Supp. 1999).

The State's witnesses at trial were Joshua Pate; Gail and David Holt,1 who are Pate's mother and step-father; and Sergeant Toby Carpenter of the Greene County Sheriff's office. The Holts testified that they requested that the sheriff send someone to their house when they returned after a week's vacation and found "stuff scattered everywhere, bottles and mason jars," and a strange backpack containing a white powdery substance. In the open freezer were fruit jars that Ms. Holt kept in the garage for canning; the jars contained a clear substance that smelled like ammonia or starter fluid. Little bottles of "Mini-Thins" ( a pseudoephedrine) were stuffed into the dryer vent. The lock had been cut off of a storage shed, where the Holts found empty jars, jars containing fluids, cans of starting fluid, empty propane containers, and aluminum foil containing a substance that looked as if it had been cooked. Hanging beneath the house they found a scuba tank and hose, as well as a box fan from their bedroom. Mr. Holt's plumbing torch showed signs of use. Kitchen utensils,

including a spaghetti implement with white, chalky build-up, were outside in the garden. Ms. Holt stated:

I know the defendant; he's been around my house. These boys were raised together. He and Josh were good friends, but Bryan was not to come to my house. Bryan knew he wasn't to come to my house at anytime. Bryan was told that two weeks before. ... Bryan knew he wasn't supposed to be there.

I never saw Bryan at my house, and I never saw him do anything. Bryan has called my house, but was told not to ever phone my house. He was not allowed in my house. Bryan did come to try to get Josh to leave with him and we wouldn't let him.

Joshua Pate testified regarding events that took place at the house the week his parents were gone. After appellant asked if he could cook methamphetamine there, he came over with another individual to do so. Josh let appellant come over, and he stayed all week. Josh and others "were doing" methamphetamine; during that activity the others stuck Josh with the needle because he could not do it himself.

Josh also testified that he saw appellant go outside and bring in fruit jars to be washed. Appellant gave Josh pill bottles to hide, which he put in the dryer vent. Josh stated that although he saw the meth lab in his house and saw a big hot plate, he did not see appellant or anyone else actually manufacture the methamphetamine. Josh stated that he had no doubt, however, based upon conversations with appellant, that appellant indeed had cooked the substance at the house.

Sergeant Toby Carpenter testified that he participated in the investigation at the Holts' house, where it was readily apparent that a methamphetamine laboratory had been set up. He testified that the State sent items from the scene to the state crime laboratory, requestinga comparison of any fingerprints lifted from those items to the fingerprints of five suspects, including appellant. Only appellant's fingerprints were found on any items of evidence, and his prints were found on four items or groups of items later introduced as State's evidence. Included in those items were several jars found in the freezer, which contained methamphetamine, and pill bottles of pseudoephedrine pill bottles, with the bottoms cut. The sergeant explained that bottles cut in that manner are used in the process of manufacturing methamphetamine for "speedy access [to] pour all the pills out into whatever they're going to be soaking them [in]," and that pseudoephedrine and ephedrine "contain the same isomers that are used in the process." On cross-examination, Sergeant Carpenter admitted that he could not say at what point in time the prints had been left on the jars.

Appellant argues on appeal that the evidence was insufficient for the conviction because the evidence that corroborates the testimony of Josh as an accomplice does not connect appellant with the crime to a substantial degree. The State contends that this point was not properly raised below, as it was not the basis of appellant's motion at the close of the State's case. We find that the point was properly raised.

The abstract shows that appellant moved for a directed verdict at the close of the State's case. He argued that the State failed to meet its burden of proof with regard to the elements of the offense of manufacturing a controlled substance, submitting that the State had proved at most that his fingerprints were on several Mason jars confiscated from the scene, but that the time those prints were left on the jars was unknown. He asked that Mr. Pate's credibility be weighed in light of his being a co-defendant, and he noted that aconviction cannot be based solely on the testimony of an accomplice. Appellant argued that the pills referred to were not an illegal substance. Finally, he submitted that the State had not presented any evidence that the contraband was manufactured by the defendant, nor had it shown the purpose for which the substance was manufactured. After a bench conference on an unrelated matter, appellant's counsel stated in open court that the defense rested, and he renewed his motion for a directed verdict. Appellant stated that he renewed his previous motion for directed verdict "on the same grounds with regard to the definition of manufacturing and with regard to each element of the offense. Also, I would like to renew our motion on the basis of the accomplice testimony, now on the fact that a conviction cannot be had solely on the accomplice's testimony."

The emphasized portions of the abstract clearly show that appellant raised the issue of corroborating evidence before the trial court in both motions for directed verdict. Even if additional grounds were raised only in the second motion, however, that would not bar appellate consideration of them. See Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Thus, we turn to the merits of the argument that the evidence was insufficient for the conviction because any evidence corroborating the accomplice's testimony does not connect appellant with the crime to a substantial degree.

Under Ark. Code Ann. § 16-89-111(e) (1987), a felony conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Id. The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, other evidence independently establishes the crime and tends to connect the accused with its commission. Gibson v. State, 326 Ark. 90, 931 S.W.2d 91(1996). The corroborative evidence, which can be circumstantial, must be substantial evidence which is stronger evidence than that which merely raises a suspicion of guilt, but corroboration need not be so substantial in and of itself as to sustain a conviction. Id.

Applying the above test, we eliminate from our review the testimony given by Joshua Pate, the accomplice, and we examine whether what remains of the State's evidence independently establishes the crime and tends to connect appellant with its commission. First, the testimony of Detective Carpenter and Gail and Jim Holt showed that a laboratory had been set up in the Holts' home during their absence and that methamphetamine had been manufactured there; thus, the State's evidence established that the crime of manufacturing methamphetamine had been committed.

Now we must determine whether there was evidence connecting appellant with that crime. Testimony of the police sergeant and the homeowners established that Mason jars kept for the purpose of canning had been moved and had been used in the process of manufacturing, that pill bottles prepared as if to be used in the manufacturing process had been stuffed into the dryer vent, and that appellant did not have permission to be in the Holts' home. The report of the state crime laboratory showed that appellant's fingerprints had been lifted from items found at the location where methamphetamine had beenmanufactured; the record shows that the items were a single Mason jar, a collection of small pill bottles of pseudoephedrine, and a group of three Mason jars.

In Gibson v. State, id., the supreme court found that the requirements of section 16-89-111(e)(1) were not met where the State's evidence, other than the testimony of the accomplice, did no more than place the defendant in a location where marijuana was used and a related crime was discussed. Here, the evidence exclusive of the testimony of Joshua Pate shows that the manufacturing of methamphetamine took place in a house during the absence of the homeowners, that Mason jars were moved from their normal location during the homeowners' absence and were used in the manufacturing process, that appellant knew he was not to be in the house, and that appellant touched pill bottles containing an ingredient used in the manufacturing of methamphetamine and touched jars containing the finished product. We view this evidence as not merely showing that appellant was in the location where methamphetamine was manufactured, but as sufficient to show that he was involved in the commission of the crime itself. Therefore, appellant's conviction for manufacturing methamphetamine is affirmed.

Prosecutor's Remarks

Appellant's remaining point of appeal regards the trial court's denial of appellant's motion for mistrial based upon a comment by the prosecutor in closing arguments. Appellant contends that the comment violated his Fifth Amendment's privilege against self-incrimination. The pertinent portion of the abstract reads as follows:

[Prosecutor]: The only other suggestion that came from the defense in their cross examination was somehow the fingerprints got on there before or after the ether was in the bottles or the meth was on the other equipment. Well, you've heard no testimony that the fingerprints were on there before or after. What you've heard was that- now, you heard the testimony that the defendant handled it--

[Court]: Wait just a minute.

[Bench Conference Held Outside Presence of the Jury]

[Defense Counsel]: Your Honor, he just commented on the defendant's failure to testify.

[Defense Counsel]: We're going to have to move for a mistrial, Your Honor, based on the fact that the prosecuting attorney in his closing argument made reference to the fact that the defendant didn't put on any evidence and didn't testify and that's totally and wholly improper.

[Prosecutor]: I said nothing of the sort. I said there has been no testimony when the defendant's fingerprints were or weren't on the glass jars. I never mentioned him not testifying.

. . . .

[Defense Counsel]: Your Honor, the prosecutor said that there was no testimony from the defense about how the fingerprints were put on there. I would submit that I would agree that it wasn't a direct suggestion or a comment that the defendant didn't testify. But it was a comment that can be interpreted no other way. It was an insinuation that the defendant had some burden of proof or some- that he had to testify.

. . . .

[Prosecutor]: Okay. I said there was no evidence. I was talking in terms of his cross examination of the prosecution's witnesses and the evidence that got out in that regard. I never mentioned the defense- the lack of the defendant testifying. And I don't think there was even an insinuation. There doesn't even need to be a cautionary instruction. There wasn't an insinuation and there certainly was not a direct comment.

[Defense Counsel]: How else would the testimony have gotten there, Your Honor? I didn't call a witness. The defendant didn't testify and I didn't call a witness in the defense. How else could- the insinuation is that we didn't put any evidence forward on that. So therefore, his argument was that they shouldn't consider it because we didn't put any evidence forward. That's a direct insinuation.

Appellant argued additionally that he had been prejudiced by the prosecutor's reference to his failure to testify, that the damage had been done, and that no instruction that the jury disregard the comment would be curative. The trial court denied his motion for mistrial, ruling that the prosecutor was talking about cross-examination rather than commenting about the defendant's failure to testify.

In reviewing whether a prosecutor's comment during closing arguments is an impermissible comment on defendant's failure to testify, a two-step process is involved. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). First, we determine whether the comment itself is an improper comment on the defendant's failure to testify; if this first question is answered affirmatively, we then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Id. It has long been the law in this state and this country that a prosecutor may not draw attention to the fact of, or comment on, a defendant's failure to testify. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). Otherwise, by commenting on his silence, the State makes the defendant a witness against himself and thereby violates the defendant's Fifth Amendment rights; even a veiled reference to the defendant's silence is improper. Id.

In Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995), the defendant argued that, in light of his vigorous cross-examination of State's witnesses, the prosecutor's reference touncontradicted testimony was actually a comment on the defendant's failure to testify. The supreme court rejected his argument and, citing Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990), noted that a remark was not necessarily improper when the State's evidence could have been disputed by evidence other than by the testimony of the accused. In the present case, appellant cross-examined the police sergeant, eliciting the witness's acknowledgment that the time that the fingerprints were left on the jars could not be determined in relation to the time they were used in the manufacturing of methamphetamine. We hold that the trial court did not err in finding that the prosecutor's comment, that no testimony was presented as to when the defendant's fingerprints were placed on the glass jars, went to appellant's cross-examination of the witness and did not infer that appellant should have testified.

Affirmed.

Pittman and Neal, JJ., agree.

1 There is no indication in the briefs or the abstract filed in this case that Gail and David Holt are related to appellant.