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Coger v. State

Court of Appeals of Arkansas, Division III

September 20, 2017



          The Hudson Law Firm, P.L.L.C., by: Grace Casteel, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Priest, Ass't Att'y Gen., for appellee.


         Appellant 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.

         I. Sufficiency of the Evidence

         In what 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.

         A. Manufacture of Methamphetamine and Possession of Drug Paraphernalia to Manufacture Methamphetamine

         In his 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. We disagree.

         Viewing 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 enforcement.

         The 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 goo."

         Russell 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.

         Under 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.

         During 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.

         Coger 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.

         We find 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 ...

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