Larry Sadler v. State of Arkansas

ar02-044

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR02-44

DECEMBER 23, 2002

LARRY SADLER AN APPEAL FROM THE LITTLE APPELLANT RIVER COUNTY CIRCUIT COURT

v. [CR-2000-36]

STATE OF ARKANSAS HONORABLE TED C. CAPEHEART, APPELLEE JUDGE

AFFIRMED

This is an appeal from the circuit court of Little River County where appellant was found guilty of manufacturing methamphetamine and sentenced to 180 months in the Arkansas Department of Correction. On appeal, appellant argues that "the trial court committed reversible error by not granting [his] motion for mistrial based on the prosecutor asking the defendant and his wife questions which did not have a good faith basis." He further contends that "the trial court committed reversible error by failing to grant [his] motion for directed verdict." Finding no error, we affirm.

Preservation of the right against double jeopardy requires that the appellate court considers a challenge to the sufficiency of the evidence before it considers alleged trial error, even though the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 79 S.W.3d 273 (2002). A motion for a directed verdict is a challenge to the sufficiencyof the evidence. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). The test for such motions is whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. We make no distinction between direct and circumstantial evidence when reviewing the sufficiency of the evidence. Ford v. State, 75 Ark. App. 126, 55 S.W.3d 315 (2001). Circumstantial evidence may constitute substantial evidence, but it must exclude every other reasonable hypothesis consistent with innocence. Id. Whether the evidence excludes every hypothesis is left to the jury to determine. Id. Neither do we pass on the credibility of the witnesses; that duty is left to the trier of fact. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

It is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. Ark. Code Ann. § 5-64-401(a)(Supp. 2001). "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. Ark. Code Ann. § 5-64-101(m)(Repl. 1997). Appellant asserts that although the State established that methamphetamine had recently been made on his property and that he fled from law enforcement, his denial of knowledge of the methamphetamine lab required the jury to speculate and rely on conjecture. We disagree.

The jury, as the finder of fact, is not required to believe the testimony of the defendant, Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997), as he is the person most interested in the outcome of the case. See Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999) (the trial court, as the finder of fact, was not obligated to believe the appellant, as he was the person most interested in the outcome of the case). As previously stated, circumstantial evidence may constitute substantial evidence, and the circumstances in this case constituted sufficient evidence to sustain the conviction.

Appellant, on June 22, 2000, approached his residence while a search warrant was being executed. He was spotted by Arkansas State Police Trooper Cleve Barfield, who was providing perimeter security around the residence. Appellant fled the scene and Trooper Barfield gave chase only to find appellant's abandoned pickup truck near a flooded creekbed. Appellant was apprehended and taken into custody almost six months later on December 8, 2000, near Tom, Oklahoma. The inference that Sadler knew the circumstances surrounding the search could be drawn from the fact that he fled from the officers. Flight from the place where a crime has been committed may be considered as evidence of guilt. Dawan v. State, 303 Ark. 217, 795 S.W.2d 50 (1990).

Further, Arkansas State Crime Lab Chemist Linda Burdick testified that the search of appellant's property revealed many items that evidenced the presence of a methamphetamine lab, including quart glass jars, pie plates, coffee filters, gallon cans of solvent, soda bottles, and hot plates. Burdick also testified that "[i]tems found that would indicate a clandestine lab where someone was trying to make meth included a coffee filter with a dark powder, a scientific flask that had a dark residue, and plastic bottles with tubingattached that contained a strong acid." A white powder found at the scene "tested to be 9.701 grams of nicotinamide," which is a B vitamin used "as a cutting agent for methamphetamine and cocaine." Toluene, iron sulphur, and a brown powder tested to be lye and hydrogen peroxide were also found at appellant's house. Burdick noted that these were all items commonly used in manufacturing methamphetamine. She also found a brown powder which tested to be methamphetamine, iodine, and phosphorous. All of these items were found in the search of various buildings on appellant's property. Therefore, the trial court did not err by denying appellant's directed-verdict motions, and we affirm as to this point.

Secondly, appellant argues that the trial court committed reversible error by not granting his motion for mistrial based on the prosecutor asking the defendant and his wife questions which did not have a good-faith basis. A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. Howard v. State, 348 Ark. 471, 74 S.W.3d 600 (2002). The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Id. Among the factors to be considered in determining whether or not a trial court abused its discretion in denying a mistrial motion are whether the prosecutor deliberately induced a prejudicial response, and whether an admonition to the jury could have cured any resulting prejudice. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).

During the direct-examination of appellant's wife, Debbie Sadler, defense counselasked her:

Defense Counsel: Have you ever seen Larry deal with illegal substances?

Witness: No, sir.

Defense Counsel: Try to manufacture?

Witness: No, sir.

Upon cross-examination, the prosecutor asked Mrs. Sadler the following:

Prosecutor: Is it your testimony, Mrs. Sadler, that your husband [had] nothing to do with methamphetamine? He would have nothing to do with the manufacturing of methamphetamines and further, he would have nothing to do with people that are manufacturing or . . . using methamphetamines? Is that a fair statement?

Witness: Yes, sir.

***

Prosecutor: But your testimony, he wouldn't be -- there's no reason for Larry Sadler to be around meth making people?

Defense counsel objected and the trial court overruled the objection, stating, "If she knows, she can answer." The witness replied, "I have no - no, sir." The prosecutor then asked Mrs. Sadler whether or not she knew of a Randy Bivins and whether or not she knew that her husband had been arrested at his home. Mrs. Sadler responded in the negative to both of those questions. The prosecutor then asked Mrs. Sadler if she knew that there was a methamphetamine lab at the Bivins residence where her husband was apprehended. Defense counsel objected and moved for a mistrial. The court asked the prosecutor if his question was one of good faith to which the prosecutor replied that he had the Oklahoma officer present to testify. The court then overruled the objection.

Defense counsel, with the court's permission, revisited the court's "good-faith basis ruling" with a voir dire of Oklahoma Officer Roy Linkswiler. Officer Linkswiler testified that he came into contact with appellant in December of 2000 after the McCurtain County Sheriff's Office received information from the Little River County Sheriff's Office that they had a warrant on him. He stated that they had information to believe that appellant was staying at a residence about a mile and a half north of Tom, Oklahoma. Linkswiler testified that when he drove to the back of the residence, he saw two white males, one of whom was the appellant, running from the back of the residence. He testified that the appellant wore blue jeans and no shirt, and stated that he told the prosecuting attorney that appellant had been arrested at an Oklahoma residence where its owner was arrested for possession of methamphetamine. He further testified that he told the prosecutor that there were some items found at the residence consistent with the manufacture of methamphetamine. The appellant, on the other hand, testified on cross-examination that he had no knowledge that methamphetamine or methamphetamine-making materials were there.

The appellant relies upon Barker v. State, 52 Ark. App. 248, 916 S.W.2d 775 (1996), for the proposition that when there is no good-faith basis or belief for a question, the trial court's denial of a motion should be reversed. However, as the State correctly points out, Barker is inapposite to the case at hand. In Barker, the first question asked by the prosecutor on cross-examination of appellant, during the guilt phase of the trial, was: "Ms. Barker isn't it a fact you've been convicted twice of DWI." Appellant's counsel responded by making a motion for a mistrial, which was subsequently denied. The court found that the trial court, in denying the motion for a mistrial, prejudiced the appellant to the extent that she wasdenied a fair trial. This was due to the fact that there was nothing in the record to suggest that the prosecutor had a good-faith basis for believing that appellant had two prior DWI convictions, when in fact, the record revealed that appellant had only one prior conviction. Here, unlike in Barker, the record demonstrates that the prosecutor had a good-faith basis for his questions based upon appellant's prior statement that he had nothing to do with manufacturing methamphetamine and his wife's prior statement that he would never have anything to do with manufacturing methamphetamine.

Further, even where a defendant gives a negative answer to an isolated, impermissible question, prejudicial or reversible error is not demonstrated. See Williams v. State, 22 Ark. App. 253, 739 S.W.2d 174 (1987). As in Williams, our appellant fails to demonstrate prejudice because the prosecutor asked only one question and the witness gave a brief negative answer. Moreover, the trial court did not abuse its discretion by denying appellant's motions for mistrial because he failed to request an admonishment or demonstrate prejudice. See id. Accordingly, we affirm on this point.

Affirmed.

Stroud, C.J., and Baker, J., agree.