FROM THE MADISON COUNTY CIRCUIT COURT [NO. 44CR-15-100]
HONORABLE MARK LINDSAY, JUDGE
Hudson Law Firm, P.L.L.C., by: Grace Casteel, for appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, JUDGE
Matthew Coger was found guilty by a Madison County jury of
multiple felony and misdemeanor counts: manufacture of
methamphetamine (a Class C felony); possession of drug
paraphernalia to manufacture methamphetamine (a Class B
felony); possession of drug paraphernalia to ingest
methamphetamine (a Class D felony); being a felon in
possession of a firearm (a Class D felony); and acquisition
of ephedrine/pseudoephedrine (a Class A misdemeanor). He
received an aggregate sentence of twenty-nine years in the
Arkansas Department of Correction. On appeal, he challenges
the sufficiency of the evidence supporting each conviction.
In addition, he raises three other points for reversal,
contending that the circuit court erred in (1) denying his
motion for mistrial made in response to allegedly improper
prosecutorial commentary during closing arguments; (2)
refusing to allow Coger to introduce a recently issued state
identification card into evidence; and (3) allowing the State
to introduce, pursuant to Arkansas Rule of Evidence 404(b),
evidence of Coger's prior methamphetamine-related
conviction. We affirm on all points except Coger's
misdemeanor conviction for acquisition of
ephedrine/pseudoephedrine, on which we reverse.
Sufficiency of the Evidence
is actually his fourth and final point on appeal, Coger
challenges the sufficiency of the evidence supporting each of
his convictions. We must consider a challenge to the
sufficiency of the evidence prior to a review of alleged
trial errors due to double-jeopardy considerations.
Ressler v. State, 2017 Ark.App. 208, 518 S.W.3d 690.
In assessing the sufficiency of the evidence supporting
Coger's criminal convictions, we consider only the proof
that supports the verdict. Davis v. State, 2015
Ark.App. 234, 459 S.W.3d 821. We view that evidence and all
reasonable inferences deducible therefrom in the light most
favorable to the State, and we will affirm if the finding of
guilt is supported by substantial evidence. Id.
Evidence is substantial if it is of sufficient force and
character that it will, with reasonable certainty, compel a
conclusion one way or the other without requiring resort to
speculation or conjecture. Id. With the standard of
review in mind, we will discuss each of Coger's arguments
on appeal along with the testimony and evidence that were
introduced during trial.
Manufacture of Methamphetamine and Possession of Drug
Paraphernalia to Manufacture Methamphetamine
first subpoint challenging the sufficiency of the evidence,
Coger addresses two of his convictions: those for (1)
manufacturing methamphetamine and (2) possession of drug
paraphernalia to manufacture methamphetamine. Coger argues
that the State failed to prove that he was the person who
knowingly or purposely manufactured methamphetamine or
possessed the paraphernalia to manufacture methamphetamine.
the evidence in the light most favorable to the State, we set
forth the testimony and evidence presented at trial as
follows. Chief Mike Harp of the Boston Mountain Solid Waste
District was conducting an investigation of purported illegal
burning in May 2015 at 192 Madison 5387. As he walked over
the property, Harp saw several burn piles or burn barrels
that gave him pause. Harp also detected a chemical odor
around the burn area. Because he had training in the area of
recognizing chemical spills on soil and in vegetation, Harp
suspected a methamphetamine lab, and he notified law
Madison County Sheriff's Office obtained and executed a
search warrant at 192 Madison 5387, focusing primarily on a
pink trailer located on the premises. In the curtilage of the
pink trailer, officers searched around a burn barrel and
recovered pseudoephedrine packages, the inside of a stripped
portion of a battery, lighter fluid, an HCL generator,
muriatic acid, Coleman fuel, a Pyrex pie plate, and coffee
filters. Inside the trailer, officers found a methamphetamine
pipe, syringes, a spoon, plastic baggies, a straw with white
residue, a digital scale, syringes, tubing, starter fluid, a
funnel, wet coffee filters, and a "wet ball of
Alberts, a criminal-investigation sergeant with the
sheriff's office and a certified methamphetamine-lab
technician, helped execute the search warrant. He described
some of the ingredients necessary to manufacture
methamphetamine: pseudoephedrine, a solvent such as lye,
lithium batteries, and an HCL generator to help convert the
methamphetamine gas to a solid. Alberts also testified that
the wet coffee filters found in the pink trailer indicated
that the cook would have been "fairly recent, within a
twelve-hour period or less." Additionally, a forensic
drug chemist from the state crime lab testified that the
material and residue found in the assorted paraphernalia was,
in fact, methamphetamine.
Arkansas Code Annotated section 5-64-423(a)(1)-(2) (Repl.
2016), it is unlawful for a person to manufacture
methamphetamine, and a person who manufactures
methamphetamine in an amount less than two grams by aggregate
weight, including an adulterant or diluent, upon conviction
is guilty of a Class C felony. The above-described evidence
is sufficient to show that methamphetamine was manufactured.
Under Arkansas Code Annotated section 5-64-443(b), a person
who possesses drug paraphernalia with the purpose to use the
drug paraphernalia "to . . . manufacture . . . a
controlled substance that is methamphetamine . . . upon
conviction is guilty of a Class B felony." On this
charge, the evidence likewise clearly showed that numerous
items necessary for the process of manufacturing
methamphetamine were found in the trailer, in violation of
Arkansas Code Annotated section 5-64-443(b). The issue
presented on appeal is whether the State proved that Coger
was the person responsible for the manufacturing process.
the search of the inside of the pink trailer, officers found
an Arkansas identification card belonging to Coger that was
valid from December 2011 through December 2015. The address
on the identification card was that of Coger's
brother's house, which was located across the street.
Officers then began to question Coger's brother, Mark
Turner. Turner testified that no one lived in the pink
trailer, but Coger would come out and stay in the pink
trailer "here and there." Turner's testimony
that no one lived in the pink trailer was corroborated by
Coger's sister, Lavena Epling. She said that the pink
trailer was used as a storage house and that no one lived
there. Lavena stated that Coger would come out to visit from
time to time, but she never really kept up with his visits.
She did testify, however, that she assumed that Coger had
stayed in the pink trailer the night before the trailer was
searched because he had been in her house when she went to
bed; she fixed Coger breakfast the next morning; and Coger
drove their mother's car to a job site, where he was
arrested. Following his arrest, Coger gave a statement in
which he denied staying at the trailer where the
methamphetamine lab had been discovered, reported that he had
been staying in Springdale, and claimed that there was
nothing in the pink trailer that belonged to him.
argues that the foregoing evidence is insufficient to convict
him. He cites the testimony that indicated he did not
frequent the pink trailer where the methamphetamine lab was
found; that no one lived there; and that his identification
card, which had been found in the trailer and was one of the
few things definitively linking him to the trailer, was an
old one that he had lost. Coger describes the testimony and
evidence as "weak circumstantial evidence" of his
involvement with the methamphetamine lab. Circumstantial
evidence, however, can be sufficient to sustain a conviction
when it excludes every other reasonable hypothesis consistent
with innocence. Ashley v. State, 2012 Ark.App. 131,
388 S.W.3d 914. While Coger argues that this evidence does
not exclude every other reasonable hypothesis, we disagree.
More importantly, the question of whether the circumstantial
evidence excludes every hypothesis consistent with innocence
was for the jury to decide. Id.
Coger's argument unpersuasive. Lavena's testimony
placed Coger in the trailer the night before his arrest, and
the wet coffee filters and the "wet ball of goo"
discovered after his arrest indicated that methamphetamine
had been recently cooked there. In addition to this evidence,
law enforcement also found Coger's identification ...