Donald Gene Strom v. State of Arkansas

ar00-137

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CACR00-137

FEBRUARY 21, 2001

DONALD GENE STROM APPEAL FROM THE GRANT

COUNTY CIRCUIT COURT

APPELLANT [CR98-30-1]

v.

HONORABLE PHILLIP SHIRRON,

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE

AFFIRMED

A jury convicted appellant, Donald Gene Strom, of manufacturing a controlled substance (methamphetamine) and possession of drug paraphernalia. Appellant was sentenced to forty years' imprisonment for manufacturing a controlled substance and ten years' imprisonment for possession of drug paraphernalia. The sentences are to run concurrently. Appellant argues two points on appeal. He argues that the evidence was insufficient to support a conviction on either charge and that the trial court erred in failing to declare a mistrial after the prosecutor questioned a witness concerning appellant's alleged prior bad acts. We disagree and affirm.

On May 8, 1998, members of the Grant County Sheriff's Office and the Sheridan Police Department executed a search warrant at the residence of Jimmy and Diane Higgins. Inside the home, the officers discovered evidence of a recent fire in one of the home's bathrooms. Sheriff Bob Adams testified that upon entry into the house he could smell acetone, Coleman fuel, and other odors that are associated with the manufacture of methamphetamine. Based on these odors and the charred bathroom, the officers decided to search the grounds surrounding the house. The officers recovered a bag of coffee filters, a broken glass jar, and a spatula from a trash barrel outside of the house. Nathan Cook, another officer present during the search, testified that he recovered a burned can of acetone, half of a burned funnel, and a burned electric wok. Norman Kemper, a forensic drug chemist with the State Crime Laboratory, testified that he analyzed the coffee filters and discovered that they had lithium carbonate on them. Lithium carbonate is a byproduct of manufacturing methamphetamine. Kemper also testified that the spatula and a glass jar contained methamphetamine and pseudoephedrine, a precursor used in the manufacture of methamphetamine. Kemper also found methamphetamine on some of the coffee filters.

Diane Higgins testified that appellant came to the house on May 7 for a visit. According to Ms. Higgins, someone dropped off appellant and a lady named Devon Hawkins. Ms. Higgins related that appellant did not have anything with him when he knocked on the door. Ms. Hawkins, however, carried a bag that was large enough to carry a change of clothes for her and appellant according to appellant's testimony. Jimmy Higgins testified that appellant was at his home when he arrived from work. Mr. Higgins stated that appellant asked him to cook some dope but that he refused the request. According to Mr.Higgins, he and Ms. Higgins then went to take a shower. Ms. Higgins testified that she had left the shower to take a telephone call in the kitchen when appellant came into the kitchen and the bathroom shouting that the house was on fire. Ms. Higgins threw water on appellant because his clothes were burning, and Mr. Higgins extinguished the fire in the second bathroom. After extinguishing the fire, Mr. Higgins drove appellant to the Jefferson Regional Medical Center where appellant was treated for burns to the face, chest, upper extremities, and hands. Ms. Higgins stayed behind and cleaned the bathroom.

Appellant gave a different recitation of the events leading to his burns. According to appellant, when Mr. Higgins arrived from work, Mr. Higgins asked appellant if he wanted to do a bump of methamphetamine. Appellant stated that he agreed and that he, Mr. and Ms. Higgins, and Ms. Hawkins used syringes to inject the drug. Appellant stated that Mr. and Ms. Higgins then went to take a shower and he and Devon Hankins went in the spare bedroom. According to appellant, Ms. Higgins came running out of her bedroom screaming. Appellant stated that he went to the Higgins's bedroom to see what the problem was and he noticed a bowl of burning liquid in the vanity sink. Appellant testified that he grabbed the bowl to take it outside and that as he was leaving the bathroom, he tripped, spilling the burning liquid on his arms and hands. According to appellant his burns were worsened when Ms. Higgins poured scalding hot water on him in her attempt to extinguish the flames.

I.

At the close of the State's case-in-chief and again at the close of all the evidence, appellant moved for a directed verdict contending that the State had failed to prove that hewas the person manufacturing methamphetamine or in possession of the drug paraphernalia. The trial court denied both motions. For his first point on appeal appellant argues that the evidence was not sufficient to support his convictions.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Killian v. State, 60 Ark. App. 127, 128, 959 S.W.2d 432, 433 (1998). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Id. When reviewing a denial of a directed verdict, we will look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. Darrough v. State, 330 Ark. 808, 810, 957 S.W.2d 707, 708 (1997). We will affirm if there is substantial evidence to support a verdict. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).

Viewing only the evidence that supports the verdict in the light most favorable to the State, we conclude substantial evidence supports appellant's convictions. Arkansas Code Annotated section 5-64-401(a) (Supp. 1999) makes it illegal to manufacture a controlled substance. Manufacture is defined in relevant part to mean the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin or by means of chemical synthesis. Ark. Code Ann. § 5-64-101(m) (Repl. 1997).

In this case, neither Mr. Higgins nor Ms. Higgins testified that he or she actually sawappellant in the bathroom making a batch of methamphetamine when the fire erupted. A conviction, however, may be supported by circumstantial evidence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). When a conviction depends solely on circumstantial evidence the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999). With respect to the exclusion of every other reasonable hypothesis, our supreme court has stated,

This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they maybe, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime, or that no crime has been committed at all.

Bowie v. State, 185 Ark. 834, 841 49 S.W.2d 1049, 1052 (1932). Whether circumstantial evidence excludes every other reasonable hypothesis is usually a question for the jury, and it is only when the evidence leaves the jury solely to speculation or conjecture that it is insufficient as a matter of law. Cristee v. State, 25 Ark. App. 303, 757 S.W.2d 565 (1988); Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985). Jurors are not required to set aside their common sense and may consider evidence in the light of their observations and experiences in the ordinary affairs of life and draw reasonable inferences from circumstantial evidence to the same extent that they could from direct evidence. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987).

Here the evidence presented indicates that appellant asked Mr. Higgins to cook upsome dope and Mr. Higgins refused. According to the testimony of Mr. and Ms. Higgins, not long after appellant requested that Mr. Higgins prepare some methamphetamine, appellant informed them that a fire had erupted in one of their bathrooms and that he was badly burned. Burned evidence recovered from Mr. and Ms. Higgins's home revealed precursors and byproducts of methamphetamine production as well as methamphetamine itself. Moreover, appellant was the only person who suffered burns resulting from the fire. We hold that this record supports the fact-finder's determination that the evidence excluded every other reasonable hypothesis other than appellant's guilt and that appellant's conviction is supported by substantial evidence.

Arkansas Code Annotated section 5-64-403 makes it illegal to possess drug paraphernalia. The term drug paraphernalia includes materials used in manufacturing or injecting a controlled substance. Ark. Code Ann. § 5-64-101(v). The evidence that we have held is sufficient to support appellant's conviction for manufacturing methamphetamine includes evidence of precursors and other materials used in the production of the drug. This evidence is also sufficient to support appellant's conviction for possession of drug paraphernalia.

II.

Appellant's final point on appeal is that the trial court erred in denying his motion for a mistrial after the prosecutor asked Mr. Higgins about his knowledge of appellant manufacturing a controlled substance in the past. During the State's case-in-chief, the following exchange occurred between the prosecutor and Mr. Higgins:

Tell me what happened after you got home that night.

Donald Gene come to me and asked me if I'd cook him some dope at my house and I told him, no, I didn't want him to cook nothing at my house.

Had you been aware of him cooking dope before?

Yes, sir.

Where had he done it before at that you knew of?

At this point appellant objected to the relevance of this line of questioning. The trial court sustained the objection, and the prosecutor continued to examine Mr. Higgins.

All right. Donald Gene had asked you if he could cook dope at your house.

A: Yes, sir.

Q: And what was your response?

A: I told him no.

Q: Now, who all lived in the house? Just you and your wife?

A: Yes, sir.

Q: Did y'all have any children?

A: No, sir.

Q: And was this a house or a mobile home or what?

A: It was a mobile home.

Q: How many bedrooms did it have?

A: Three.

After this exchange of six questions and answers between the prosecutor and Mr. Higgins, appellant asked the trial court for a mistrial because the court could not correct the prejudice caused by the prosecutor asking Mr. Higgins if he knew of appellant cooking dope before. The trial judge denied the motion and no further comment was made concerning the question.

Under our Rules of Evidence, proof of other crimes, wrongs, or acts is not admissible to prove the bad character of a defendant and to show that his actions conformed to that character. Ark. R. Evid. 404(b). See also Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584(1994). Such evidence however may be admitted for purposes other than to show the accused acted in conformity with his bad character such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b). Our supreme court has made it clear that if the introduction of testimony of other crimes, wrongs, or acts is "independently relevant to the main issue - relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal - then evidence of that conduct may be admissible with a proper cautionary instruction by the court." White v. State, 290 Ark. 130, 140, 717 S.W.2d 784, 789 (1986) (quoting Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804, 806 (1954)).

A review of the record reveals that the only purpose in the prosecutor asking Mr. Higgins if he knew of appellant cooking dope before was to create an inference that appellant had manufactured methamphetamine in the past and likely did it on the day in question. This conclusion is supported by the fact that in the face of appellant's objection, the prosecutor made no attempt to justify the question. Totally absent from the record is any contention that the question was meant to establish motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident.

Our supreme court has held that in some circumstances deliberately unfair tactics cannot be cured by anything less than a reprimand in the presence of the jury or a mistrial. See Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983) (where prosecutor in a murder trial interjected by way of a question on cross-examination that the defendant had previously been convicted of raping an eleven-year-old child); Clark v. State, 244 Ark. 772, 427 S.W.2d 172 (1968) (where the prosecutor in the jury's presence went through the pretense of attempting to call the defendant's wife as a witness, knowing that she could not testify against him). Our supreme court has also repeatedly held, however, that motions for mistrial must be made at the first opportunity. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). In Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), the court held that the appellant's motion for mistrial based upon improper comments made by the prosecutor during opening statement was untimely because it was not made at the first opportunity. The court reasoned that it was proper to deny a motion for a mistrial when the request was not made at the first opportunity, even though the motion had been preceded by two defense objections sustained by the trial court. Moreover, the appellant's prior requests for relief were granted.

As in Dixon, appellant in the instant action, objected to the improper testimony on the grounds of relevance and received all the relief that he requested. Appellant waited for the prosecutor to ask another six questions and receive another six answers before requesting a mistrial. Accordingly, the trial court did not err in denying appellant's motion.

Affirmed.

Robbins and Griffen, JJ., agree.