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Cogburn v. State

Court of Appeals of Arkansas, Division I

November 9, 2016

GARY BRIAN COGBURN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT [NO. 31CR-15-44] HONORABLE CHARLES A. YEARGAN, JUDGE

         AFFIRMED; REMANDED IN PART FOR CORRECTED SENTENCING ORDER

          James Law Firm, by: William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Gary Cogburn was convicted in a jury trial of manufacturing marijuana, possession of marijuana, possession of drug paraphernalia, and simultaneous possession of drugs and firearms. Mr. Cogburn was sentenced to a total of thirteen years in prison. On appeal, Mr. Cogburn argues (1) that there was insufficient evidence to support his convictions, (2) that the trial court erred in admitting hearsay testimony, and (3) that the trial court erred in refusing to submit an affirmative-defense jury instruction with respect to the simultaneous-possession charge. We affirm.

         When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Bohanan v. State, 72 Ark.App. 422, 38 S.W.3d 902 (2001). 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 with reasonable certainty without resort to conjecture. Breedlove v. State, 62 Ark.App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State, 2011 Ark.App. 432, 384 S.W.3d 585.

         Officer Scott Bradshaw testified that he executed a search warrant at Mr. Cogburn's house on April 16, 2015. Over appellant's hearsay objection, Officer Bradshaw was permitted to testify that he had received information from Mr. Cogburn's wife that Mr. Cogburn was growing marijuana at his house, which was the basis for the search. Officer Bradshaw testified that Mr. Cogburn's wife had provided information that Mr. Cogburn was growing marijuana in the freezer at the back of his house using timers and grow lights, and that she was in fear of losing her kids due to the drug activity.

         Officer Bradshaw and Officer Pete Penney participated in the search of Mr. Cogburn's home. Both officers were familiar with Mr. Cogburn from Mr. Cogburn's prior law-enforcement experience. When the officers entered the residence, they found Mr. Cogburn asleep in his bed. Mr. Cogburn was unarmed and cooperated with the police.

         During the search, the officers found thirty-nine marijuana plants growing in the freezer at the back of the house. Grow lights and timers were being used in the manufacturing process. The police also found twenty-three marijuana plants growing outside the house. Multiple bags containing marijuana were found inside the house, along with digital scales and baggies.

         The officers also seized approximately thirty guns during the search of Mr. Cogburn's residence. Some of these guns were loaded and some were unloaded. In the southeast corner of Mr. Cogburn's bedroom the police found a stack of firearms, at least one of which was loaded. Three firearms were found in the northeast corner of the bedroom, two guns were found between the mattress and box spring, and more guns were found in the bedroom closet. The police found a black bag containing multiple loaded handguns along the north wall of the bedroom, and there was a loaded handgun on the headboard area of the bed where Mr. Cogburn had been sleeping. The police also found ammunition throughout the bedroom.

         Jeff Bruce, a forensic chemist at the crime lab, performed an analysis on the quantities of suspected marijuana seized by the police. Mr. Bruce testified that all of the quantities he tested were positive for marijuana. The total weight of all the amounts tested was 39.65 ounces.

         Officer Robert Gentry testified that, after Mr. Cogburn's arrest, he Mirandized Mr. Cogburn and took a statement. In his statement to the police, Mr. Cogburn admitted that he was manufacturing marijuana and admitted that he possessed marijuana. Mr. Cogburn also told the police that the guns found in his house belonged to him.

         We first address Mr. Cogburn's argument on appeal that there was insufficient evidence to support the verdicts. Mr. Cogburn challenges his conviction for Class D felony manufacturing marijuana, which, pursuant to Arkansas Code Annotated section 5-64-439(b)(2) (Repl. 2016), is committed if a person manufactures more than 14 grams but less than 4 ounces of marijuana. Mr. Cogburn also contends that there was insufficient evidence to support a conviction for Class D felony possession of marijuana with purpose to deliver, which, pursuant to Arkansas Code Annotated section 5-64-436(b)(2), requires proof of possession of more than 14 grams but less than 4 ounces of marijuana. Both of these challenges are based on appellant's claim that the State failed to establish the requisite minimum weights of marijuana that he allegedly manufactured or possessed with the purpose to deliver. Mr. Cogburn asserts that the chemist, Mr. Bruce, did not clarify exactly how much of the suspected marijuana he tested, stating only that he had tested a sample of each quantity submitted and confirmed each sample to be marijuana. Mr. Bruce also acknowledged in his testimony that the bags of marijuana he tested ...


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