Danny Havener v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DANNY HAVENER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-391

December 1, 2004

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT

[NO. CR2003-041-B]

HON. JOHN S. PATTERSON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Danny Havener seeks the reversal of his conviction for manufacturing methamphetamine. He argues that the Johnson County Circuit Court erred in denying his motion for directed verdict and by allowing certain evidence from witnesses Jerry Dorney and Mona Gable to be admitted. We affirm.

On February 27, 2003, Mona Gable contacted Officer Larry Johnson regarding information that her husband, Gerald Gable, and appellant were manufacturing methamphetamine in the Gables' home. She described her observations of the two men cooking something with a strong chemical odor in the microwave and gave details regarding numerous items commonly associated with a methamphetamine lab. Based on Mrs. Gable's information, as well as evidence collected over the previous three months,1 Johnson County law enforcement officers served a search warrant on the Gables' residence, at which time they arrested Gerald Gable and appellant, who was outside the residence doing repair work on an automobile. A search of the residence resulted in the seizure of numerous components of a recently active methamphetamine lab.

A jury trial was held on November 13, 2003. At the close of the State's case, appellant made a motion for directed verdict, arguing that there was insufficient evidence to sustain a conviction as there had not been any evidence other than testimony from Mona Gable that he had anything to do with the methamphetamine lab discovered inside the house. The motion was denied; appellant rested without putting on a defense; and the jury found appellant guilty of the manufacturing charge and sentenced him to forty years' imprisonment and ordered him to pay a fine of $5000.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. In reviewing a challenge to the sufficiency of the evidence, we will not second-guess credibility determinations made by the factfinder. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). Instead, we view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Walley, supra. Furthermore, "[a] jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant's guilt from improbable explanations of incriminating conduct." Burley v. State, 348 Ark. 422, 431, 73 S.W.3d 600, 606 (2002).

I. Sufficiency of the Evidence Supporting Conviction

It is an appellant's duty to present a record on appeal that demonstrates error. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). Appellant abstracts the motion for directed verdict and the ruling but fails to abstract other relevant parts of the trial, including a significant amount of testimony that supports the trial court's denial of the motion.

Appellant failed to abstract the testimony of Officer Johnny Casto, stating only that it was not relevant for his appeal. Officer Casto assisted in the search of the Gables' residence and testified that compared to the more than one hundred methamphetamine labs he had worked, this one was "pretty large." There were sixty-three pages of testimony from Officer Casto, which included the fact that he smelled an odor upon arriving at the residence and detailed the discovery of numerous items commonly associated with the manufacture of methamphetamine, including: (1) a white bucket containing a yellow plastic plate, glass plate, cup, jar with residue, gallon jug with unknown liquid, hair dryer, forty-eight ounce bottle half full of yellow liquid, two knives, electric cord, three plastic bags with powder, Pyrex dish with residue; (2) a gallon jug with bi-layered liquid (pill-soak); (3) a gallon jug with tri-layered liquid; (4) a metal lid with white powder residue; (5) a plastic bottle with approximately four ounces of unknown liquid; (6) a microwave oven referred to by Officer Casto as "contaminated"; (7)"lab trash" - coffee filters with iodine stains, etc.; (8) three cans of camp fuel; (9) glass jars with coffee filters; (10) a plastic container holding three syringes that appeared to have been used; (11) another bucket with a set of scales, scissors, small plastic baggies, alcohol, container of iodine crystals; (12) Red Devil lye; (13) two bottles of HEET; (14) funnels; (15) a glass container with iodine stains; (16) several lengths of plastic tubing connected to a bottle; (17) a set of scales; (18) a gallon of muriatic acid; (19) a hot plate; (20) a roll of aluminum foil; (21) several coffee filters; (22) several large-mouth jars and bottles, all containing some type of residue; (23) plastic tubing; (24) soda bottle with clear solvent.

Officer Casto further testified regarding a shaving kit containing a syringe that was found in appellant's truck. Officer Casto testified that there was a substance inside the syringe but that it was not tested and was not available at trial. He referred to a photograph of the syringe while explaining that it was a different size and brand than the three collected from inside the house. Finally, Officer Casto also testified that he neither saw appellant inside the residence nor discovered his fingerprints on any of the items seized.

Appellant also failed to abstract the testimony of Officer Larry Johnson who testified that he noticed very strong fumes at the residence and had the impression that both Gable and appellant were under the influence of methamphetamine at the time of arrest. The testimony of forensic chemist Chris Harrison was likewise missing from appellant's abstract. Mr. Harrison explained the testing of the items that were seized from the Gable residence and their association with the process of manufacturing methamphetamine and confirmed that the substance tested from the syringe found in appellant's vehicle was methamphetamine. He stated, however, that he never saw the syringe, but had no reason to question the evidence submission sheet that stated that particular syringe as the origin of the substance.

Finally, there was additional testimony from Mona Gable that was not abstracted including that: (1) appellant was staying at the Gable residence almost every night around the time of the arrest; (2) she saw appellant bringing matches, camp fuel, HEET, and antihistamine tablets into the house; (3) she saw appellant crush some antihistamine tablets, put them in a jar, and pour HEET on top of them; (4) she smelled a strong chemical odor that made her eyes water while appellant was there; (5) her husband and appellant were "cooking" something in the microwave, and when she heard the microwave go off and attempted to approach them about it, they stopped her at the door and told her to go to work.

When insufficient evidence is the basis of an appellant's argument, we are required to review the evidence submitted by the State. See Irvin v. State, 345 Ark. 541, 49 S.W.3d 635 (2001). The record is limited to that which is abstracted, Johnson v. State, 342 Ark. 357, 28 S.W.3d 286 (2000); accordingly, we have little more than the motion for directed verdict and ruling before us. We could send the appeal back for re-briefing pursuant to Ark. Sup. Ct. R. 4-2(b)(3) (2004), but we also have the ability to go to the record to affirm. See Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Robinson v. State, 49 Ark. App. 58, 896 S.W.2d 442 (1995). Additionally, we only address the arguments on appeal; issues raised below but not argued on appeal are considered abandoned. King v. State, 323 Ark. 671, 675, 916 S.W.2d 732, 734 (1996). Rule 33.1(a) of the Arkansas Rules of Criminal Procedure requires that a motion for directed verdict shall state the specific grounds therefor. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Under this standard, appellant's specific argument in support of his motion for directed verdict is abandoned.

At trial, appellant argued that there was no evidence other than from Mona Gable, to whom he referred to as a "co-conspirator," and that her testimony alone could not be used to place him in the residence and support a conviction for manufacturing methamphetamine. Appellant specifically argued that Mrs. Gable was a co-conspirator because she testified that she had previously used methamphetamine in the house and did nothing even though she was aware that the manufacturing had been going on there for three or four months. The trial court made no ruling as to whether Mrs. Gable was a co-conspirator but denied appellant's motion for directed verdict.

Now, on appeal, appellant argues that there was actually no evidence to support his conviction and that the only testimony presented in the case was "that a syringe was supposedly found in appellant's vehicle and that the syringe contained some dark liquid or clear liquid that was probably methamphetamine." He contends that there was no evidence that linked him to being inside the residence where the methamphetamine lab was operated.

We hold that there was sufficient evidence to support the conviction for manufacturing methamphetamine, including: (1) Officer Casto's testimony regarding the various methamphetamine lab components discovered in the Gable residence and the syringe found in appellant's vehicle; (2) forensic chemist Harrison's testimony that the syringe found in appellant's vehicle contained methamphetamine; (3) Officer Johnson's testimony that at the time of arrest both co-defendant Gable and appellant were under the influence of methamphetamine; (4) Mona Gable's testimony regarding her direct observations of appellant manufacturing methamphetamine in her home, including bringing in relevant components as well as crushing tablets, adding HEET, and cooking something with a strong chemical smell in the microwave. We affirm on this point.

II. Witness Testimony of Jerry Dorney and Mona Gable

A. Jerry Dorney's Testimony

Appellant argues that the trial court erred by admitting the affidavit for the search warrant through Officer Jerry Dorney, because Officer Dorney was not the originator of the affidavit and the originator was present and available to testify. Appellant failed to make that argument at the trial level and failed to preserve that particular argument for appeal by not making an objection sufficient to advise the trial court of the error. See Mayes v. State, 351Ark. 26, 89 S.W.3d 926 (2002). More specifically, appellant maintains, and argued at trial, that the testimony was hearsay, pursuant to Rule 801(c) of the Arkansas Rules of Evidence, despite the fact that the State claims it was not offered as proof of the matter asserted. He simply claims "[t]hat was not the situation in the trial of this matter and as the affidavit was hearsay testimony and should not have been allowed in."

The State cites several examples of similar testimony that was properly allowed for the purpose of showing the basis for police actions and was relevant to the issue of probable cause. See West v. State, 82 Ark. App. 165, 120 S.W.3d 100 (2003); Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000); Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989). In the instant case, the State argues that Officer Dorney's statement about the affidavit was not offered to prove the truth of the matter asserted, i.e., that appellant was manufacturing methamphetamine, but rather that it was introduced to explain why law enforcement officers sought a search warrant for the Gable residence. This is analogous to the above-referenced cases where testimony was allowed where it explained the actions of the law enforcement officers, even where it may have referred in some way to the truth of the matter asserted. We cannot say that the trial court abused its discretion in admitting the evidence; accordingly, we affirm the trial court's ruling regarding Officer Dorney's testimony. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).

Even if we were to find that his testimony was hearsay, there was sufficient evidence aside from Officer Dorney's testimony to support the conviction; therefore, any error was harmless. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). Officer Dorney's testimony was limited to the identification of the affidavit, rather than its specific contents. Other witnesses testified regarding the same information, such as the various components of the methamphetamine lab that were seized at the site. Additionally, Mona Gable testified thatshe personally saw appellant bring various methamphetamine lab components into the house, as well as participate in the actual "cook." In light of the other evidence, any harm caused by the entry of Officer Dorney's testimony regarding the affidavit was slight, and a harmless error.

B. Mona Gable's Testimony

The only testimony from Mona Gable that appellant appears to challenge is her statement that appellant had told her that he had taught other men to cook methamphetamine and that those people were now in prison. Appellant argues that this statement was hearsay because the trial court never ruled that the statements were admissions by him and, therefore, excluded from the rules on hearsay. In Ward v. State, 350 Ark. 69, 84 S.W.3d 863 (2002), the Arkansas Supreme Court held that under Rule 801(d)(2)(i) of the Arkansas Rules of Evidence, a statement is not hearsay if it is offered against a party and is his own statement, in either his individual or representative capacity. Clearly, this was a statement made by appellant that was offered against him at trial, thus falling within the exclusion.

Affirmed.

Stroud, C.J., and Neal, J., agree.

1 The 5th Judicial Task Force had been watching appellant and documenting reports from local businesses that he was purchasing several everyday items commonly known to be used in the manufacture of methamphetamine.