FROM THE HOWARD COUNTY CIRCUIT COURT [NO. 31CR-15-44]
HONORABLE CHARLES A. YEARGAN, JUDGE
REMANDED IN PART FOR CORRECTED SENTENCING ORDER
Law Firm, by: William O. "Bill" James, Jr., for
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
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.
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.
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.
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.
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
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
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.
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.
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 ...