Cook v. State

379 S.W.3d 618, 2010 Ark. App. 726, 2010 Ark. App. LEXIS 769
CourtCourt of Appeals of Arkansas
DecidedNovember 3, 2010
DocketNo. CA CR 10-291
StatusPublished
Cited by2 cases

This text of 379 S.W.3d 618 (Cook v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. State, 379 S.W.3d 618, 2010 Ark. App. 726, 2010 Ark. App. LEXIS 769 (Ark. Ct. App. 2010).

Opinion

JOSEPHINE LINKER HART, Judge.

|; Michael Cook was convicted in a bench trial of possession of drug paraphernalia with the intent to manufacture methamphetamine. He was sentenced to 120 months in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his direeted-verdict motion. We reverse and dismiss.

An appeal from a denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence. Clemons v. State, 2010 Ark. 337, 369 S.W.3d 710. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Id.

|2When we review a challenge to the sufficiency of the evidence, we affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Viewing the evidence in the light most favorable to the State means that we consider only the evidence that supports the verdict. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. In addition, the credibility of witnesses is an issue for the trier of fact, not the appellate court. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). The fact-finder is free to believe all or part of a witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

The legally significant facts in this case are not in dispute. Lieutenant James Kulesa, a narcotics officer with the Lonoke County Sheriffs Department, testified that on March 2, 2009, he, along with Investigator Keith Eaton, went to 17 Opal Street in Ward. The residence belonged to Erik Richardson (Richardson) and his wife, Cynthia. Kulesa was attempting to make contact with Richardson and Fred Witten-burg. Kulesa found Cook present in the house along with a babysitter. Kulesa stated that he learned that Cook was staying with the Richardsons temporarily while he recovered from surgery. When Kulesa asked the babysitter where he could find Richardson and Wittenburg, she directed Kulesa to a storage shed behind the house. Eaton did a “walk through” of the storage building and observed items that he recognized as components of a meth lab. The police “backed off’ and obtained a search warrant.

In the storage building, they found evidence of methamphetamine manufacture, including a pill soak, coffee filters stained with a residue that contained iodine, phosphorus lapowder and methamphetamine, an HC1 generator, damp matchbook striker plates, and empty pseudoephedrine blister packs. They also found burnt aluminum foil with methamphetamine residue and a “glass smoking device.” They also found a sleeping area, where he understood Wittenburg was residing.

In Richardson’s residence, the police found what they believed were “snorting devices,” which, in the picture that the State introduced into evidence, appeared to be plastic straws, near the sofa that served as Cook’s bed. In a box of cleaning supplies located in Cook’s automobile, police found a glass jar containing “a paper towel or some kind of towel in there with a reddish color to it.”

Forensic drug chemist Norman Kemper of the Arkansas State Crime Lab testified that he tested many of the items, and they indicated that methamphetamine had been manufactured using iodine and red phosphorous. He noted that among the items was a SoBe bottle that served as a “reaction vessel” that contained red phosphorus, iodine, and methamphetamine. Further, Kemper stated that two glass jars and a quantity of unused coffee filters could be used to make methamphetamine in the future. He admitted, however, that he did not test the contents of the glass jar found in Cook’s automobile, although he stated the contents “appeared” to be iodine crystals and had a smell “consistent with” iodine. Kemper also admitted that he did not test the “snorting devices” that were found in the residence.

Richardson, who was declared Cook’s accomplice as matter of law, testified that Wittenburg was renting the storage shed from him and using it as his residence. Richardson |4confirmed that Cook was staying in the main house. Richardson claimed he had personal knowledge that Cook was a methamphetamine cook. He noted, however, that he was unaware of Cook ever cooking meth on his premises. Richardson admitted that he gave Cook some pills to manufacture methamphetamine, but he never saw Cook do anything with the pills. Richardson admitted visiting the shed, and he asserted that Cook went back there “more frequently than I did.”

On appeal, Cook argues that the State failed to show that he possessed, either actually or constructively, drug paraphernalia that could be used in the manufacture of methamphetamine. Further, he asserts that the State failed to prove that he possessed drug paraphernalia with the intent to use that paraphernalia to manufacture methamphetamine. Cook acknowledges that law enforcement officers found several items that could be used in the manufacture of methamphetamine in a storage shed behind the residence where he was staying. However, he asserts that there was insufficient evidence to link him to the contraband found in the shed. He notes that Richardson was declared an accomplice as a matter of law, which means that the law requires that the testimony be corroborated. Cook argues that the State presented insufficient corroboration, and if Richardson’s testimony is excluded, there is no evidence linking him to the shed. Further, he asserts that even if we were to find that Richardson’s testimony was corroborated, there is no evidence of a substantive nature that proves his connection to the alleged crime. Cook acknowledges that the State argued that the material found in his car was iodine, but he notes that it was never positively identified as |,;iodine or any other substance that can be used in the production of methamphetamine. We agree with Cook that the verdict is not supported by substantial evidence.

We note from the outset that the State has never asserted that possession of the suspected iodine or suspected “snorting devices” was sufficient to sustain Cook’s conviction. At trial, the State merely described the suspected iodine as “suspicious.” The issue before us is, therefore, whether there was sufficient evidence that Cook possessed the meth lab components found in the storage shed. As the State notes, our supreme court stated that “possession need not be actual, physical possession, but may be constructive, when one controls a substance or has the right to control it.” Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession. Id. However, where there is joint occupancy of a premises, there must be “additional factors” from which the factfinder can infer possession. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
379 S.W.3d 618, 2010 Ark. App. 726, 2010 Ark. App. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-state-arkctapp-2010.