Charles Ray Bolton v. State of Arkansas

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

NOT DESIGNATED FOR PUBLICATION

DIVISION II

CHARLES RAY BOLTON

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR-00-881

May 30, 2001

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, ARKANSAS

[99-206]

HON. JOHN FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

Appellant was convicted by a Greene County jury of manufacture of a Schedule II controlled substance, methamphetamine, a class Y felony, simultaneous possession of drugs and firearms, a class Y felony, possession of a controlled substance, a class C felony, and possession of drug paraphernalia, a class C felony. Appellant argues that the trial judge committed reversible error when he failed to direct a verdict in appellant's favor on the charges of manufacture of a controlled substance and simultaneous possession of drugs and firearms. Appellant also argues that the trial court erred in its refusal to grant a mistrial due to allegedly prejudicial remarks made by the prosecutor during closing argument of the sentencing phase. We disagree with appellant and affirm the trial court in all respects.

On August 25, 1999, a sheriff's deputy, Jamie Martin, was on patrol and noticed smoke coming from a pile of burning brush located on appellant's property. Because a burn ban was in effect in Greene County, Martin stopped to inquire about the burning. Appellant was outside, near the burning brush pile, when Martin approached him. Appellant identified himself to the officer. Martin testified that after appellant identified himself, he confirmed with the sheriff's department that there was an affidavit to "pick up" appellant on a theft-

by-receiving investigation. Appellant was told that he would have to come with Martin, and he gave Martin permission to search his person. Appellant was wearing an empty gun holster and a knife holster. Appellant took the knife out of the holster and surrendered it to the officer, then returned the knife holster to his belt. During the search, Martin looked inside the knife holster and found a bag of "white powder substance." The substance weighed 2.9 grams and was identified by the State Crime Lab as methamphetamine.

Martin inquired as to the location of the gun that belonged in the empty gun holster that appellant was wearing. Appellant responded that the gun was in the grass near the burning fire. A Parker .10mm was recovered in some tall grass near the brush pile where appellant was standing when the officer first approached him. The gun hammer was cocked, with a magazine in it, but the gun was not loaded. After he was handcuffed, appellant also told Martin that he was carrying a syringe in his right front pocket. Based on the testimony of Martin, a search warrant was granted to search appellant's home later that evening.

Toby Carpenter, the narcotics investigator for the Greene County Sheriff's Department, testified regarding the search of appellant's home. He testified that a photograph, introduced into evidence by the State, depicted a glass jar in a pantry closet containing a grey sediment that "appears to be a pill soak in a one gallon glass like a dill pickle jar." He also testified that two glass jars, one with clear liquid and one with dark liquid, were found at the scene and were accurately represented by the State's photographs. He further testified that the "large jar smelled strongly of anhydrous ammonia" and that the jar with a clear liquid "is more than likely going to be a pill soak." Carpenter also testified that a photograph of appellant's front porch depicted a light gray colored tank or cylinder that he believed contained anhydrous ammonia.

Carpenter further testified that two rifles were found in appellant's hallway, both loaded with ammunition in the chamber. He testified that a third, unloaded rifle was found in the master bedroom closet. Carpenter also testified that three empty Coleman fuel cylinders and a quart of acetone were found during the search of appellant's home. Additionally, Carpenter testified that he found a surveillance camera inside the front plate glass window, and a plastic bag "probably fifty-feet behind the house." The bag, according to Carpenter, contained several punched cans of ether, and eighteen punched cans of starting fluid. Finally, Carpenter testified that two police scanners were found in the home, along with a set of high grade float scales. Carpenter concluded that, based on his experience and education, it "appeared to be a working meth lab in the house."

The items discussed above were not tested for residue, nor was methamphetamine residue discovered during the search of the home. Carpenter concluded by testifying that the items recovered from the home were insufficient to manufacture methamphetamine.

Patrolman Tom McCracken, with the Greene County Sheriff's Department, testified that appellant had given a voluntary statement that the substances found in his home "have something to do with meth."

During the closing argument of the sentencing phase, the prosecutor argued that the sentences the jury imposed on appellant would be widely reported and would have an impact on the State's ability to plea bargain with other defendants. At the close of the State's case and again at the end of trial, appellant moved for a directed verdict on the manufacture and the simultaneous possession charges. Appellant also moved for a mistrial based on the prosecutor's allegedly prejudicial remarks during the sentencing phase of the trial. Manufacture

For his first point on appeal, appellant challenges the sufficiency of the evidence supportinghis conviction for manufacturing methamphetamine. In a challenge to the sufficiency of the evidence, this court will affirm the conviction if there is any substantial evidence to support it. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (quoting Trotter v. State, 209 Ark. 269, 719 S.W.2d 268 (1986)).

In the case at bar, appellant moved for a directed verdict on the charge of manufacture of a controlled substance. Appellant argued at trial, as he does on appeal, that the State failed to show that methamphetamine had actually been manufactured, or that it could have been manufactured from the components found in the search of his home. Appellant argues further that the trial court's failure to grant a directed verdict in his favor ignores the statutory distinction between manufacture and attempted manufacture. We begin our examination with the statute involving the manufacture of a controlled substance.

"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.

Ark. Code Ann. § 5-64-101(m) (Repl. 1997).

Arkansas Code Annotated section 5-3-201 defines attempt as follows:

(a) A person attempts to commit an offense if he:

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(2) Purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.

The question presented is whether the "pill soak" and appellant's possession of other chemicals used in the manufacture of methamphetamine, coupled with the finished product of methamphetamine found on appellant's person, crossed the line beyond a substantial step towards manufacture, attempt, and actually constitutes manufacture.

Both the appellant and appellee guide us to the precedent of Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999), to resolve this dilemma on appeal. At first glance, the case at bar does bear a striking similarity to Smith in that not all of the necessary components used to manufacture methamphetamine were recovered during the search of appellant's home. However, unlike Smith, there was a final product (methamphetamine) found on appellant's person.

The precedent contained in Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989), offers a better guide for our review of this case. In Lee, there was testimony that only some of the components necessary to produce methamphetamine were present. Specifically, the component anhydrous ammonia was missing. However, a beaker was recovered from the scene that contained methamphetamine. While the methamphetamine was not in its final, street form, the supreme court reasoned that a "manufacture" could occur prior to the substance being converted into a form to be sold. Finally, our supreme court reasoned that since there was a final product recovered, there was "ample evidence that preparation and processing of the drug took place." Lee, 297 Ark. at 426-7.

In the present case, 2.6 grams of methamphetamine were discovered on appellant's person, and other items used in the manufacture of methamphetamine were found in appellant's home. These facts alone are sufficient for us to sustain the jury's conclusion that appellant "manufactured" methamphetamine. Accordingly, we affirm the trial court's decision to deny the appellant's motionfor a directed verdict on his charge of manufacture of a controlled substance.

Simultaneous Possession

In his second sufficiency-of-the-evidence challenge, appellant argues that the trial court erred in refusing to direct a verdict on the simultaneous possession charge. Arkansas Code Annotated section 5-74-106 (a)(1-2) (Repl. 1997), provides that "no person shall unlawfully commit a felony violation of section 5-64-401 (Repl. 1997), or unlawfully attempt, solicit, or conspire to commit a felony violation of section 5-64-401 while in possession of a firearm or [a]ny implement or weapon which may be used to inflict serious physical injury or death, and which under the circumstances serves no apparent lawful purpose."

Here, appellant was convicted of a felony violation of section 5-64-401, possession of 2.6 grams of methamphetamine. He admitted on cross-examination that he threw a gun down in the grass when he first saw Officer Martin approaching him.1 The only two elements that the State was required to prove were that appellant possessed the firearm and that a connection existed between the firearm and the controlled substance. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). At the time the officer initially approached the appellant for illegal burning, he had around $300.00 worth of methamphetamine and a handgun on his person, which is enough evidence to establish the required nexus to support the charge of simultaneous possession of drugs and firearms. Mistrial

Finally, appellant argues that during the sentencing phase of his trial, the prosecutor argued that the jury's sentence would shape future plea bargains in cases involving methamphetamine. Appellant contends that these remarks were so prejudicial as to warrant a mistrial. The State arguesthat the mistrial motion was not made at the first opportunity and is thus procedurally barred. See Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).

Here, appellant objected during the closing argument and the trial court sustained the objection. However, appellant did not request an admonishment, nor did he move for mistrial until the jury had retired to deliberate. In Leaks v. State, 339 Ark. 348, 5 S.W.3d 448, (1999), the supreme court held that a motion for mistrial is not required when the trial court overrules a defendant's objection during closing argument. Appellant's objection during closing argument, although it was sustained, is sufficient to preserve the issue for appellate review and consideration of the issue on its merits.

Appellant concedes that the trial court's failure to give an admonishment instruction, in the absence of such a request by appellant, is not reversible error. However, appellant argues that such a request would have been futile based on the level of prejudice that the prosecutor's comments inflicted. In appellant's own brief he cites Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993), for the proposition that the appellate court will not reverse the action of a trial court in matters pertaining to its controlling, supervising, and determining the propriety of the arguments of counsel in the absence of manifest gross abuse. Appellant then argues such an abuse has occurred in the case at bar.

Appellant points to the fact that he received a jury sentence of twenty years' imprisonment on the simultaneous possession charge to support his position that he was prejudiced by the State's closing argument. However, appellant could have received up to forty years or life for this offense. The fact that appellant received a mid-range sentence on the simultaneous possession charges, and the minimum sentences on the manufacture and possession of drug paraphernalia charge is persuasive that appellant was not prejudiced by the State's closing argument.

The record is clear that the trial court realized the prosecutor's comments were improper, offered an admonishment, and postponed his ruling until the jury returned from deliberations as to the sentence range. The trial judge found that the jury, which gave the appellant one mid-range sentence and two minimum sentences, was fair and not prejudiced by the State's comments. Because the trial court determined that the jury affixed reasonable terms to appellant's convictions and that it would have been the one sentencing appellant if the motion had been granted, we cannot find that its failure to declare a mistrial resulted in a manifest gross abuse. Therefore, we affirm.

Affirmed.

Griffen and Roaf, JJ., agree.

1 The fact that two loaded weapons were found in the hallway of appellant's home, which was described as a working "meth lab," would also be sufficient evidence to affirm the trial court's decision.