Barron v. State
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Cite as 2009 Ark. App. 117 (unpublished)
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR06-506
Opinion Delivered F EBRUARY 25, 2009
PAUL BARRON, SR.
APPELLANT
APPEAL FROM THE CARROLL
COUNTY CIRCUIT COURT,
[NO. CR-2000-124]
V.
HONORABLE ALAN D. EPLEY,
JUDGE
STATE OF ARKANSAS
APPELLEES
AFFIRMED
ROBERT J. GLADWIN, Judge
Appellant Paul Barron, Sr., appeals his conviction of January 8, 2002, by a Carroll
County jury, which found him guilty of manufacturing methamphetamine, a controlled
substance. He was sentenced to 180 months’ imprisonment in the Arkansas Department of
Correction. On appeal, he claims that the trial court erred by refusing to instruct the jury as
to the fact that accomplice testimony must be corroborated. We find that the issue is not
preserved for appellate review and affirm.
Barron was charged with manufacturing a controlled substance, methamphetamine,
and possession of drug paraphernalia by information filed July 19, 2000. The information
was filed following Barron’s arrest during the execution of a search warrant on the residence
of Kenny Parks and the discovery of a methamphetamine lab. Barron’s first trial resulted in
Cite as 2009 Ark. App. 117 (unpublished)
a mistrial based upon a hung jury.
At the second trial, Kimberly Parks testified that Barron had discussed manufacturing
methamphetamine with her and her brother when they visited Barron in Branson, Missouri,
where Barron lived. William Hayes testified that he came to Arkansas with Barron and they
brought with them the supplies to manufacture methamphetamine. Hayes admitted that he
had been involved in the manufacture of methamphetamine in the past. Hayes also testified
that Barron’s thirteen-year-old son was with Barron at the time of the arrest.
Officer Arthur Raff of the Arkansas State Police testified that a confidential informant
told him that a methamphetamine lab was hidden behind a church down the road from the
Parks residence. Raff verified that the lab was behind the church but did not take possession
of the lab. He subsequently received a call from the informant with information that the
backpack containing the lab had been moved and that individuals were going to cook
methamphetamine at the Parks’ residence.
Officer Raff verified this information by
surveillance on the property. When the search of the Parks’ property was conducted, Barron
did not run, but sat down outside the shed where the methamphetamine was being processed,
and allowed himself to be arrested without protest. Officer Raff and other officers testified
that a strong chemical odor emanated from the shed, and it was impossible to stay in the shed
long without protective gear.
Barron was convicted of manufacturing methamphetamine, but was found not guilty
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Cite as 2009 Ark. App. 117 (unpublished)
on the charge of possession of drug paraphernalia. He was sentenced to fifteen years’
imprisonment in the Arkansas Department of Correction. Barron filed a timely notice of
appeal. However, because Barron’s counsel failed to perfect the appeal and there was no
order dismissing the appeal or otherwise relieving counsel from his obligation, by
unpublished per curiam dated June 1, 2006, the Arkansas Supreme Court ruled that attorney
Phillip Moon remained responsible for representing Barron on appeal and directed the clerk
to lodge the partial record. The court further directed Mr. Moon to file a petition for writ of
certiorari within thirty days to call up the entire record, or that portion of it necessary for an
appeal, to the Arkansas Supreme Court. The court also denied Barron’s request to proceed
in forma pauperis on appeal.
By per curiam 1 dated September 21, 2006, and pursuant to Mr. Moon’s assertion in
a petition for writ of certiorari that Barron discharged him as his attorney, our supreme court
directed Mr. Moon to comply with the court’s procedure to properly withdraw as counsel and
to do so within thirty days. The Arkansas Supreme Court issued a per curiam opinion 2 on
November 16, 2006, pursuant to Mr. Moon’s motion to withdraw as counsel. The court held
Mr. Moon failed to comply with Ark. R. App. P.-Crim. 16 (2006), because the language in
Mr. Moon’s motion to withdraw did not offer any explanation of why sufficient cause existed
1
Barron v. State, 367 Ark. 314, 239 S.W.3d 480 (2006).
2
Barron v. State, 368 Ark. 129, 243 S.W.3d 325 (2006).
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Cite as 2009 Ark. App. 117 (unpublished)
to warrant his being relieved of his appellate duties. The court denied his motion to
withdraw, but issued a writ of certiorari to bring up, within thirty days, the entire record, or
that portion of it necessary for an appeal.
By unpublished opinion dated January 16, 2008, this court denied Mr. Moon’s motion
to withdraw and ordered rebriefing. We held that Mr. Moon failed to comply with Rule 43(j)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals and ordered
rebriefing within thirty days. Again on June 25, 2008, by unpublished opinion dated June
25, 2008, this court denied Mr. Moon’s motion to withdraw and remanded the case for
rebriefing in compliance with Rule 4-3(j)(1).
This court now considers Barron’s appeal on the merits.
With regard to our standard of review, our supreme court has stated that a party is
entitled to a jury instruction when it is a correct statement of the law and when there is some
basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 95
S.W.3d 740 (2003). We will not reverse a trial court’s decision to give an instruction unless
the court abused its discretion. Id. Barron claims that the trial court erred by refusing to
instruct the jury as to the fact that accomplice testimony must be corroborated. He contends
that he suffered prejudicial error when the jury was not given his proffered non-AMCI
instruction on Hayes’s and Parks’s status as accomplices and the resulting need that their
testimony be corroborated.
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Cite as 2009 Ark. App. 117 (unpublished)
Barron argues that Kimberly Parks pled guilty to a felony charge as a result of the
execution of the search warrant. Parks testified that she and her brother met with Barron, and
Barron agreed to teach them how to cook methamphetamine. However, she also said that she
did not know Barron was at the residence before the execution of the search warrant and did
not know what was going on in the shed. Barron asserts that William Hayes testified that
Barron had him come to Arkansas to help manufacture methamphetamine. He said that the
items to manufacture the methamphetamine were transported by them from Barron’s
residence to Parks’s residence. He also admits that he had previous experience in the
manufacture of methamphetamine.
Barron claims that based upon Hayes’s and Parks’s testimony, the jury should have
been able to determine if they were accomplices. To that end, he proffered a jury instruction
covering corroboration of the testimony of an accomplice. He argues that because there were
accomplices in the case who testified, the trial court should have given the instruction he had
proffered.
He contends that a person cannot be convicted of a felony based upon the testimony
of an accomplice, unless that testimony is corroborated by other evidence tending to connect
the defendant with the commission of the offense. See Ark. Code Ann. § 16-89-111(e). He
argues that there is no evidence independent of accomplice testimony to show that he was
the one manufacturing methamphetamine. He claims that the only evidence independent of
accomplice testimony that connects him to the manufacture of methamphetamine was his
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Cite as 2009 Ark. App. 117 (unpublished)
presence at the residence at the time of the execution of the search warrant. He maintains
that mere presence of a person at the scene of a crime is not proof of his or her guilt. See
Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).
Finally, Barron correctly points out that a party is entitled to a jury instruction when
it is a correct statement of law and when there is some basis in the evidence to support giving
the instruction. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Moreover, he argues
that a trial court is required to give a jury instruction if there is some evidence to support it.
Id. Therefore, he contends that there was sufficient evidence that Parks and Hayes were
accomplices and the trial court erred by not giving the jury instruction that he requested.
The State maintains that Barron’s accomplice-corroboration challenge is barred. In
order to preserve an accomplice-corroboration challenge to the sufficiency of the evidence
for appellate review, a defendant must either have the trial court declare a witness to be an
accomplice as a matter of law or submit the issue to the jury for determination. E.g., Flowers
v. State, 92 Ark. App. 29, 210 S.W.3d 907 (2005). Because appellant failed to do either of
these, his claim is barred.
The State points out that Barron’s proffered instruction was not an AMCI instruction.
A trial court should not use a non-model instruction unless it finds that the model instruction
does not accurately reflect the law.
Jones, supra.
The State maintains that AMCI
instructions existed for accomplice status and there was no finding that the AMCI
instructions were not correct. Therefore, the trial court did not err in refusing to give
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Cite as 2009 Ark. App. 117 (unpublished)
Barron’s non-AMCI instruction.
Moreover, Barron did not get a clear ruling as to why the instruction was being
denied, and thus, Hayes’s status as an accomplice was left unresolved. Barron’s proffered
instruction referenced only Hayes as an accomplice, completely leaving out Parks. Because
Barron never presented the question of Parks’s status as an accomplice to the judge or jury,
the question is not preserved for appeal. See Vickers v. State, 313 Ark. 64, 852 S.W.2d 787
(1993). Because the jury was never told as a matter of law, or asked as a matter of fact to
determine the accomplice status of either Parks or Hayes, the matter cannot be reached on
appeal. Accordingly, we affirm.
Affirmed.
V AUGHT, C.J., and K INARD, J., agree.
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