Cluck v. State

of Arkansas Alan CLUCK v. STATE Ray CA CR 04-710 of Arkansas

Court of Appeals 8, 2005 delivered Opinion June Firm, Knutson, Law Knutson A. for by: Gregg appellant. Holt, Gen., Beebe, Gen., Ass’t

Mike Kent G. by: Att’y Att’y appellee. was con- Alan Cluck Ray Josephine Judge. Hart, Linker victed Crawford County jury possession J and he with intent to manufacture

paraphernalia methamphetamine, was sentenced to 180 months in the Arkansas Correc- Department court erred when it: allowed the State tion. He trial 1) argues officer for his convictions for to introduce witness as intent these facts had “mini- to deliver when value did not substan- mal relevance” and the independent probative of unfair to Arkansas outweigh danger prejudice pursuant tially 403; and allowed the to call as a 2) Rules of Evidence State 404(b) his trial where “rebuttal witness” the officer from arresting previous the witness was not disclosed and the witness was allowed to testify that were in a unrelated about items seized from his house prior, search in and because the evidence was and unduly prejudicial cumulative; denied his motion for a directed verdict when the 3) State’s evidence of common household showed only presence items, there was no that he intended to use items to several methamphetamine, ingredients necessary pro- duce and there was no evidence present, residence; at the was found and refused 4) any methamphetamine instructions the definition of give proffered jury concerning and a lesser-included offense of drug paraphernalia “attempted pos- session of with intent to manufacture metham- We find merit Cluck’s phetamine.” arguments concerning and we reverse and remand for a new trial. evidentiary rulings, trial, Prior to filed a in limine Cluck motion to limit seeking officer, of his Heather who was probation Douglas, one of the officers who had conducted a consensual search of his home and Cluck to exclude that he outbuildings. sought search, was on that his was revoked after the and that parole, parole awas officer. The State that “the facts are so Douglas argued intertwined in this case that it be me would impossible put her on the stand and not ask her I believe the case law occupation. her, to ask allows least: Where do work?” The trial you you court ruled that the could as State to where inquire Douglas worked.

The then and received conditional State sought permission to admit in its case-in-chief evidence of Cluck’s convictions for and contended with intent to deliver. the evidence was relevant” to refute Cluck’s “independently The trial court conditioned the use of the evidence on defense. Cluck and lack of et cetera.” raising “ignorance knowledge, case-in-chief, Dawson,

In the State’s Will investigator with the 12th and 21st Task Forces testified that he Drug Judicial received information that Cluck had iodine from a purchased Dawson, farmers’ he drove Cluck’s co-op. According residence to see if there were animals but found none. He present, officers, later went Cluck’s residence with two other Heather Bobbitt, and Suzanne but did not find Cluck at home. At Douglas looked for Cluck at his brother’s Douglas’s suggestion, police house and contact made with him. Dawson said he asked Cluck for, what the iodine was and Cluck told him he it for a “bought friend.” Dawson stated that had consent to search Cluck’s Douglas vehicle, and she discovered a bottle of a hydrogen peroxide bottle of alcohol. Dawson then received Cluck’s consent to search his residence and Dawson into evidence outbuildings. sponsored of the items that were seized from vehicle Cluck’s photos can; residence: toluene a box of table salt and plastic jugs acid, cleaner, muriatic drain Red Devil containing lye, isopropyl alcohol; and sinus Dollar box of General cold Equate allergy pills; a short of rubber and a box of allergy pills; length tubing filter; PVC a used coffee a bottle of disposable gloves; hydrogen alcohol; and a bottle and a peroxide rubbing syringe.

Dawson testified that the toluene can was that a empty, can, coffee filter was found on of the and that both items single top cross-examination, were found in Cluck’s On Dawson garage. admitted that he did not have the filter for residue. analyzed drug alcohol, Dawson stated that the Red Devil drain lye, isopropyl cleaner, and muriatic acid were found under the sink in Cluck’s kitchen, and that the salt was found on the counter. to According Dawson, the cold and were found but he allergy pills by Douglas, had discovered the He also found the tubing disposable gloves. but he admitted that the State Crime Lab had not detected syringe, examination, residue in it. On cross Dawson admitted any drug uses, that all the items seized had and there was no legitimate evidence such as the or telltale odors that glassware presence indicate that meth would lab was on the present premises. witness,

Before its next Heather the State Douglas, calling secured the trial court’s for her to that she was testify permission officer and that on Cluck’s Cluck was probation probation and for conspiracy of with intent to deliver. She also confirmed that she had found a bottle of and a bottle of hydrogen peroxide and the can and alcohol Cluck’s vehicle toluene rubbing empty the coffee filter in the garage. Carolan, then calledMitch a narcotics investigator Police,

with the Arkansas State as an in the area of “expert the to meth- the two most common meth- paraphernalia manufacturing process respect Carolan amphetamine.” ods of explained the “red manufacturing methamphetamine: phosphorus method” which has as its “three main iodine ingredients crystals, and red and the am- pseudoephedrine, monia” “anhydrous phosphorus; method, ammonia, which utilizes lithium anhydrous metal, and Carolan how items pseudoephedrine. explained seized from Cluck could be used in the manufacture metham- cook;” the toluene to “draw meth out of phetamine: your your the coffee filter to filter out ephedrine pseudoephedrine, red out iodine or to salt-out the “pull phosphorus,” dry crystals, soak;” acid, alcohol in the the muriatic drugs; drain isopropyl “pill cleaner, salt, with aluminum to make foil tubing along cook; “HC1 the Red Devil generator;” lye adjust pH the the the meth from gloves disposable protect person making chemicals; as a source of pills pseudoephedrine; iodine and the hydrogen peroxide crystals; produce syringe found course of commonly methamphetamine investiga- cross-examination, tions. On Carolan admitted that all of the items uses, that there were question legitimate many ingredients from each of methods he de- missing manufacturing scribed, and that a would be unable to manufacture person with the materials and that were ingredients However, redirect, seized Carolan that it police. opined “that someone is the material to manufacture.” appeared gathering He also of materials opined assemblage suggested someone was to use the “red method” of intending phosphorus manufacturing methamphetamine. rested, verdict,

The State and Cluck moved for a directed that the absence of two of the main arguing ingredients required for either methods his case within manufacturing brought of our decision in Gilmorev. “purview” App. there no He also asserted that 87 S.W.3d 805 (2002). seized contained evidence that the drine, that were pseudoephe- pills no evidence of his intent methamphet- amine, insufficient to make meth- that the items themselves were substance and no and that there was no controlled amphetamine, residue found. The trial motion, denied finding judge of the other materials and the enough pills presence quantity to submit the jury. question mother, stated called his Patricia She

Cluck King, testify. in the house where the contra- that Cluck had lived alleged only arrest; to his band was seized for about a week alleged contraband was common household chemicals left on the mostly or used Cluck to assisther with her rental by maintaining premises that Cluck had for which he took over-the- allergies property; medications; counter cold and that Cluck did not even have a key cross-examination, to the On admitted that garage. King door have been offits but she reaffirmed her garage “may hinges,” also belief that someone could door She just pull open. rejected the State’s assertion that it had discovered a amount of large allergy medication, that Cluck went a box in a week. claiming through She stated that the muriatic acid was used Cluck to clean the brick on one of her rental and that she herself had two properties cleaner, bottles of drain in her Red Devil alcohol house. lye however, could not had a in his Cluck King, explain why syringe kitchen or he had iodine at the feed store. why purchased father, Cluck, Cluck’s Dale testified that he used iodine Jim on his cattle ranch to rock-foot disease. He also stated help stop that his son ran iodine water lines to medicate the through examination, chickens he raised. On cross he asserted that Cluck twice,” iodine for him “once or and he believed purchased had last him in before Cluck visited Cluck July, shortly June was arrested. rebuttal, called Dawson in and he testified that he were seized at identical to the ones that Cluck’s purchased pills residence, Dawson, but were not at trial. produced According he read the label of the he contained they pills purchased, cross-examination, On Dawson conceded that pseudoephedrine. did not Cluck have more than the amount” of “legal ephedrine.

The State then called Pittman of the Craw- Sergeant Jerry what he had ford Sheriffs about County testify Department seized from Cluck’s residence in which was evidence in 226

Cluck’s convic- conspiracy-to-manufacture-methamphetamine tion. Over Cluck’s Pittman testified that law enforce- objection, ment officers seized a bottle of iodine a of three crystals, plate it, a used razor blade with residue on syringes, with a baggies residue, three cans of Red Devil a dirty-white powder lye, baggie some PVC containing tubing, plastic pipe, open package filters, them, coffee used coffee filters with red stains on a bottle of Südafed, a notebook drain containing methamphetamine recipes, cleaners, salt, acetone, acid, rock a can of muriatic red phosphorus, B-12 methamphetamine, pseudoephedrine, cutting agent, glass- ware, thinner, rubber three gloves, coffee paint marijuana, pots residue, and lithium. The State containing then rested and Cluck renewed his directed verdict motion. timely

Preservation of Cluck’s double re- right against jeopardy that we consider his quires of the challenge sufficiency evidence before we consider trial error even alleged though issue State, was not as the first issue on Davis v. presented appeal. 22, 350 Ark. (2002). reviewing challenge evidence, we view the sufficiency evidence in the light most favorable to the State and consider the evidence that only State, 618, the verdict. v. 353 supports Ark. Cummings S.W.3d We have often (2003). stated the test determining — of the evidence whether there is sufficiency to substantial evidence State, the verdict. 331 Ark. support 962 S.W.2d Sanford 335 (1998). Substantial evidence is direct or circumstantial evi- dence that is forceful a conclusion enough one or compel way another and which mere goes beyond speculation conjecture. determination, Id. In this we consider evidence making both review, admitted. properly Id. On improperly this court neither the evidence nor weighs evaluates the of wit- credibility nesses. Kirwan v. 96 S.W.3d 724 (2003).

Cluck that the trial court erred when it argues denied his motion for a directed verdict because the State’s evidence showed items, only common household presence there was no he intended to use the items to manufacture meth- several amphetamine, ingredients metham- necessary produce were not and there phetamine was no evidence present, that any was found at the residence. He us to find urges this case to Gilmorev. where analogous we reversed and supra, dismissed a conviction possession intent to manufacture when the found of less than complete compliment ingredients uses,” the items all of seized “legitimate methamphetamine, listed in and “the vast factors Arkansas Code majority” Cluck Annotated section 5-64-101 (v) 1997) lacking. (Repl. items, of common household asserts that the presence found, and combination rise to a only give “suspicion” quantities that someone use the items to manufacture may methamphet- amine. We disagree. are mindful that this case is similar to in that

We Gilmore there was an set of to obviously ingredients incomplete required It is that the “vast also methamphetamine. apparent the fourteen listed in section factors 5-64-101(v) majority” were Gilmore, in this As in there was case. present expert case, however, in this as offered Daw- testimony, by Investigator son, into evidence the that the items seized at placed opinion Cluck’s residence were “used in the manufacture of methamphet- amine.” While it is true that Dawson also confirmed that meth- be could not manufactured from the amphetamine ingredients scene, found on of Dawson’s is not portion testimony State, considered us under our standard of review. v. Cummings Gilmore,however, case, Unlike in the there instant was also supra. considerable evidence about Cluck’s for con- conviction to manufacture spiracy methamphetamine.

Furthermore, as noted when we review previously, evidence, casefor the we consider evidence both sufficiency State, admitted. v. Evidence properly improperly supra. Sanford First, of the latter abounded in this case. we note that variety to allowed she was Cluck’s Douglas testify probation officer. This almost testimony certainly predisposed jury believe that Cluck was inclined to in unlawful engage activity. there was that a was found in Cluck’s Secondly, testimony syringe kitchen. A has no use manufacture of syringe methamphet amine, irrelevant, and could be considered to be particularly of the fact that no residue was discovered light However, case, or in the the State crime lab. in this syringe by the trial court Pittman allowed to establish a link between Deputy and the manufacture of when he syringe allowed over Cluck’s about Cluck’s 1998 testify objection arrest and conviction for subsequent Furthermore, Pittman’s

methamphetamine. in-depth the material that was seized from Cluck’s residence in concerning with evidence that would enable it to find provided jury that Cluck acted in with his bad act. While we conformity are mindful that the admission of this evidence is not permissible Evidence, under Rule of the Arkansas Rules of we must 404(b) still it maximum value under our give probative sufficiency-of- the-evidence review. Id. we hold that Accordingly, was sufficient to allow a without jury, resorting speculation to convict Cluck of conjecture,

with intent to manufacture. next

We consider Cluck’s first and second which both points, concern that the trial court made erroneous allegations evidentiary sake, For we will combine these rulings. brevity’s Our arguments. standard of review is asfollows: matters to the pertaining admissibility court, evidence are left sound discretion of the trial and we will See, not reverse such a absent an abuse of that discretion. Bell ruling e.g., 334 Ark. Nor will we reverse (1998). absent a as is not Hill v. showing prejudice, prejudice presumed. 988 S.W.2d 487 (1999). Cluck first contends the trial court erred when it allowed the elicit from that she was his Douglas officer for his convictions for parole manufac- prior ture possession methamphetamine intent to deliver when these facts had “minimal independent relevance” and the value did not probative substantially outweigh of unfair to Arkansas danger prejudice Rules of pursuant Evidence 404(b) 403. Cluck also that the trial court argues erred when it allowed State to call as a “rebuttal witness” Pittman, the officer from Deputy trial where arresting previous the witness was not disclosed and was allowed to about testify items that were seized from his house in a unrelated search prior, 1998, because the evidence was and cumu- unduly prejudicial lative. We and hold that the decision to agree allow the admission of this evidence constituted reversible error.

Arkansas Rule of Evidence states: 404(b) Crimes, crimes, Other (b) or Acts. Wrongs, Evidence of other or actsis not wrongs, admissibleto the characterof a prove person order to show that he acted therewith. It conformity may, however, motive, be admissiblefor other such as purposes, proof intent, opportunity, preparation, plan, knowledge, ab- identity, sence of mistake or accident.

Moreover, even if the evidence is relevant under Rule it 404(b), may be excluded if its value is probative substantially outweighed by of unfair or confusion of the issues. Ark. R. Evid. danger prejudice 403. The value unfair is a balancing probative against prejudice matter, instance, Newton, in the first for the trial court. See Parrishv. 298 Ark. 768 S.W.2d 17 (1989).

As noted the trial court allowed the State to elicit previously, from Heather one of the officers who searched Cluck’s Douglas, residence, that she was Cluck’s officer. Cluck made a parole timely trial, Arkansas Rules of Evidence At 403/404(b) objection. that the was admissible “I because prosecutor argued believe that the case law allows to ask at least: you [Douglas], Where do work?” you

We hold that there was no value in clearly probative the fact that was Cluck’s officer and introducing Douglas is manifest. We believe that her so prejudice allowing was tantamount to Cluck in the court testify room making appear Furthermore, in shackles or to the State’s prison garb. contrary bald assertion at trial that “the case law” such a line of permitted our research has uncovered not a case inquiry, that stands for single we hold that to so proposition. Accordingly, allowing Douglas was an abuse of discretion. testify

We also hold that the trial court erred when it permit ted the State to bolster its weak case with so called “rebuttal Pittman about Cluck’s testimony” by Deputy six-year-old conviction. In the conspiracy-to-manufacture-methamphetamine first we with Cluck that it place, was not true rebuttal agree In Birchettv. testimony. (1986), our court held that a true rebuttal witness must supreme “merely” Here, to evidence the defense. the so-called respond presented by rebuttal did not to Cluck’s conten “merely” respond uses, tion that the contraband had but delved alleged legitimate into the details of a crime. We are mindful that Cluck’s convictions for offenses were relevant to drug-related prove contraband was indeed alleged seeArkansas drug paraphernalia, therefore, Code Annotated section evidence 5-64-101(v), of those convictions could be introduced in the State’s case-in-chief. fact, however, This does not make it admissible in “rebuttal.” See Birchettv. supra.

Cluck further and we that “the sheer argues, agree, number of items to which Pittman testified were ex Sergeant and should have been excluded.” tremely Pittman’s prejudicial, 230 the mere existence of a manu- went well drug beyond

testimony Pittman’s detailed conviction. We believe that descrip- facturing in 1998 had the effect of tion of what he seized filling toward the inevitable conclusion items so as to missing point jury not contraband. that Cluck did innocently alleged possess from common household Because methamphetamine produced items, be of this cannot we believe importance testimony Pittman’s offered understated. It is clear to us that testimony with his to show that Cluck was acting conformity solely is, course, under bad acts. That of not Rule purpose permissible that the decision to admit Pittman’s We hold 404(b)1. the 1998 search and seizure of Cluck’s residence was concerning also an abuse of discretion. We therefore reverse and remand this case for a new trial because of these errors. evidentiary retrial,

Because it is to arise on we will address likely briefly Cluck’s fourth in which he that the trial court erred argues point when it refused instructions give proffered jury concerning and a lesser-included offense definition drug paraphernalia intent with “attempted possession paraphernalia We find no error in the trial methamphetamine.” court’s of Cluck’s instructions. rejection jury proffered

The trial court instructed the with the definition jury found in 6418.2. AMCI This instruction contains a notation definition found in stating statutory Arkansas Annotated section contains a (v) Code 5-64-101 list of and the statute should be reviewed in examples formulating instruction for a case. Cluck’s appropriate particular proffered instruction, however, set out the entire list of items included in the statute, without the An instruction must be tailoring. required to the factual issues the trial before court’s refusal to germane give an instruction can be considered error. Stevens 1200, 441 S.W.2d (1969).2 argument In his brief on Cluck he made to the trial court appeal, incorporated reproducing argument judge concerning verbatim his to the trial the State’s intention to through supporting introduce Pittman’s the 1998 conviction. Cluck argued “trying that the State was to bolster their case with bad and that it was a acts,” violation of “Rule 404.” give We note as well that the instruction that the trial court did also charges charged tailored to reflect the in this case. Cluck was sufficiently

231 We find no error the trial court’s refusal to give Cluck’s second instruction a lesser-included proffered concerning offense of “attempted possession intent to manufacture itWhile is reversible error to methamphetamine.” refuse to an instruction on a give lesser-included offense when the evidence, instruction is even the see v. supported slightest Fudge State, 341 Ark. it is not error to refuse (2000), an instruction where there is no rational basis for a verdict the defendant of the acquitting offense and him charged convicting on the lesser offense. See Doby S.W.2d Here, there is no (1986). rational basis for simply giving Cluck’s lesser-included instruction on the proffered offense of with the attempt possess drug intent to manufac paraphernalia ture methamphetamine.

The State to convict Cluck for attempted drug with intent to manufacture paraphernalia de- the fact that the evidence spite established that there was present set of and incomplete hardware to manufac- ingredients necessary ture the of our drug. Gilmorev. light holding supra, which embraces the fact that completely labs use common household items in the production drug, outcome of this case turns on the issue of whether or necessarily not the collection of the contraband could alleged as qualify drug there paraphernalia. was no rational Accordingly, basis for giving Cluck’s lesser-included instruction. proffered

Reversed and remanded.

Bird, Glover, Roaf, JJ., agree. concur in dissent in JJ., Vaught, part; part.

Crabtree Judge, Terry Crabtree, concurring dissenting. in this case was convicted in a trial of jury with intent possession drug paraphernalia metham- drug with intent to manufacture the instruction that paraphernalia methamphetamine, yet given jury to the defined as material used in paraphernalia part inapplicable ’’planting, propagating, cultivating, growing, harvesting.” The instruction processes: also listed “injecting, used in ingesting, inhaling, or otherwise introduce into the equipment category human this had no connection manufacturing. body.” Clearly paraphernalia syringe because a However, was seized in this we case, cannot but believe that this help overly broad instruction could have influenced the outcome of the trial. Ann. 5-64-403(c)(5) in violation of Ark. Code (Supp.

phetamine § He reversal of that conviction. raises four issues for 2003). Appellant to his as the trial court erred in admitting testimony that (1) argues: as a convictions and his status methamphetamine-related previous Evidence, and in of the Arkansas Rules of under Rule 404(b) parolee this evidence was not outweighed the value of finding probative 403; that the trial court (2) under Ark. R. Evid. unfair by prejudice the to offer rebuttal testimony concerning erred in permitting found in items associated with the manufacture methamphetamine it was not to evidence search because presented responsive previous defense; the that the evidence is insufficient to the (3) support by verdict; his that the trial court erred (4) refusing proffered guilty instructions. jury the issues

In an that clouds appeal opinion presented the holds that their factual majority grudgingly underpinnings, to the there is sufficient evidence jury’s finding guilt, support of the instruc- and it affirms the trial court’s refusal jury proffered conviction be- tions. The reverses ostensibly majority appellant’s was revealed and (2) cause status rebuttal (1) appellant’s parole did not to evidence “merely” respond presented by under an 404(b), defense and was not admissible Rule argument does does not make on majority appeal. Curiously, that the address contention testi- not directly primary appellant’s convictions was not admissible under mony concerning prior Rule 404(b).1

I in the decision that there is substantial concur majority’s conviction, but I do not in that join support I that the of the and thus write opinion, separately. agree portion trial court did not err give jury by failing appellant’s proffered I dissent because the evidence of instructions. appellant’s prior and was not misconduct meets test relevancy independent 5-64-101(v), majority Citing Arkansas Code Annotated section states that items convictions were relevant as proof appellant possessed appellant’s prior The subsection of drug and were thus admissible State’s case-in-chief. paraphernalia majority “fpjrior if of an convictions, owner, the statute referenced any, by provides relating object, under state or federal law controlled control any any anyone object drug Although determining are relevant in whether an substance” paraphernalia. and I evidence, the statute so the issue in this case involves the submit states, admissibility 404(b), evidence, convictions must muster under the rules of Rule particular pass enough being admitted into evidence. It is not that a statute before appears permit say (1990). e.g., their introduction. 800 S.W.2d402 See, Sypult was on prejudicial; unfairly and the items found in a testimony recounting prejudicial; search was rebuttal proper testimony. The evidence trial reveals the Will presented following. Dawson, an with the force in task Sebastian and investigator Counties, Crawford that he testified checked other co-ops iodine, sell stores that in the manufacture of meth- ingredient Some the stores a list of iodine amphetamine. kept purchasers ID’s, and take while one store wrote down the numbers of tag 3, 2003, On Dawson received information that purchasers. July iodine been someone with Arkansas purchased tag number 578 HDM. returned to on a 1991 tag Dawson took a of worker Dodge Dynasty. picture appellant at the who identified who as had co-op appellant person the iodine. purchased Dawson said that iodine used on and to treat cattle dogs

sores, he so drove residence to by determine whether appellant’s animals; 8, Dawson, had he saw On none. appellant any July Heather and another officer made contact with Douglas, appellant officer, at his brother’s house. consent” “had aparóle Douglas, search vehicle. looked and a She inside found bottle of appellant’s alcohol, and a bottle of which im- hydrogen peroxide appellant claimed as his own. mediately told Dawson that he had Appellant the iodine “for a friend.” purchased

aIn search of residence and outbuild- subsequent appellant’s the officers found Red Devil and two other kinds drain ing, Lye salt, cleaner, alcohol, and but muriatic acid. All the salt isopropyl were found underneath the kitchen A sink. was found in syringe the trash can. Thirteen blister of cold medication con- packages house, was discovered as taining pseudoephedrine and In the was an can tubing disposable vinyl gloves. garage empty toluene. On it sat a stained coffee filter. top Police as Officer Mitch Carolan was qualified expert as having narcotics clan- specialized training investigation destine labs. He testified in detail some how medication, filters, toluene, cold coffee Red Devil drain Lye, cleaners, salt, alcohol, acid, muriatic hydrogen peroxide, were used in tubing process manufacturing methamphet- amine to the He method. further according red-phosphorous that testified were worn for gloves vinyl protection against or to chemicals and that he had seen a prevent leaving fingerprints Carolan like found investigations. lot of those previous gloves clandestine labs and to find that it was common also said syringes used to that methamphetamine. inject syringes explained for metham- manufacturing two of the main ingredients Although search, red iodine and were not in the phospho- found phetamine had rous, aware that Carolan was purchased Officer appellant evidence, it was before the search. Based all of iodine days materials to manufacture that was gathering his appellant opinion method. red-phosphorous the items she had as to Heather gave Douglas found in the searches. She also testified appellant personally for the offense of under her was on supervision he also had with intent conviction for felony possession methamphetamine to deliver.2 Pat testified on his behalf. King, parents Appellant’s

mother, rental and that she owned the said she had properties certain, lived. She but she house where had appellant months, had lived in the house a few believed that appellant seven, the search took She said that the before place. possibly in and that the had been vacant before moved house appellant house, a lot of tenants had left things including previous drain cleaners. Ms. testified allergies King medication, cold about box a week. She said that which he took he used the rent houses and that drain her with helped used drains. She also said that muriatic cleaners unstop that built. to clean bricks a house she had She did acid recently or know had an abundance of alcohol he why appellant why car. did not there was a had some in his also know coffee why She in the had a used trash filter in the syringe garage, why appellant can. father, Cluck, lived in Oklahoma where Dale appellant’s Jim that he iodine treat

he had a cattle ranch. He testified used liquid disease that had iodine for him rock-foot and appellant purchased son in his in the He also said that his used iodine chicken past. medicate chickens. houses to majority first failed introduce footnote, In its State inadvertently says during conviction to manufacture for methamphetamine

appellant’s prior conspiracy gross is a of re Douglas. of Heather This statement mischaracterization had for Douglas testified that convictions cord. Ms. conspiracy plainly appellant with intent to of deliver. and methamphetamine possession methamphetamine rebuttal, Pittman, In the State offered the of Jerry a with the Crawford Sheriffs He sergeant County Department. was in of the narcotics division and had charge participated search of residence on New Year’s Eve of 1998 that appellant’s in resulted conviction for to manufacture appellant’s conspiracy Pittman testified that the in items seized methamphetamine. search a included iodine three a crystals, of razor plate syringes, residue, inside, blade with with white a baggies dirty powder and three of containing PVC cans Red Devil baggie tubing pipe, Sudafed, salt, acetone, acid, a of bottle rock muriatic a Lye, hand-rolled box of marijuana cigarette, opened baggies, empty red, of wet coffee filters packages that stained syringes, rolling iodine, red papers, bag containing phosphorous, methamphet- amine, scales, residue, rubber hand-held three gloves, spoons and a notebook for containing recipe making methamphetamine. The State had the burden of proving appellant possessed and that he did so with the drug paraphernalia intent manufac- Ark. Code Ann. turing methamphetamine. 5-64-403(c)(5) § When the evidence is 2003). viewed in the (Supp. most light favorable to the there was expert testimony appellant had assembled the vast majority materials for necessary producing method. methamphetamine using red-phosphorous There was also evidence that had appellant recently purchased iodine, one such that one missing ingredients, only ingre- so, dient was absent. Even we have held that it is not for necessary there to be all evidence of the materials required producing in order to methamphetamine sustain a conviction for possession with intent to manufacture that paraphernalia substance. addition, Ark. Cherry App. (2003). there evidence that appellant been convicted of previously possession was deliver, with intent to there materials that were presently possession similar to those found connection with his prior conspiracy conviction. This of evidence served to establish body both that knew the items he this instance were possessed with which produced Further, that he had the intent to manufacture methamphetamine. was in of a that could be used to syringe inject once the substance was made. It is of no that there was consequence no pungent odor associated with typically manufacturing methamphetamine because was not offense of manufac- charged Furthermore, re- the jury obviously turing methamphetamine. house- the materials were common defense that

jected appellant’s use, in as was its he prerogative hold items which put legitimate to be and the weight of witnesses determining credibility record, cannot that there On this I conclude the testimony. given verdict of guilt. no substantial evidence support is App. Our decision Gilmore There, the Gilmores is distinguishable. (2002), readily S.W.3d with intent of of were found possessing drug paraphernalia guilty a search of their vehicle after to manufacture methamphetamine revealed that had seven lot they purchased the Wal-Mart parking fluid, tablets, can of four cans boxes of antihistamine starting freshener, butane, We found the air and two bottles. propane used to deter- the factors after evidence insufficient considering out in Ark. as set whether are mine objects factor that 1997). Ann. 5-64-101(v) only Code (Repl. § however, officer’s was that testimony; expert applied that deficient because he stated was deemed testimony rise to the items gave “suspicion” Gilmores’ possession only to be made with them. that methamphetamine Here, is in addition to The evidence this case different. of materials used to a number produce methamphetamine, having is of a used injecting was in syringe appellant methamphetamine. Secondly, in this casewas testimony expert and was not in terms of mere spoken unequivocal, positive Third, there evidence that previous suspicion. methamphetamine-related factors listed in convictions, which is also among

Ark. Ann. 5-64-101(v). Code § issues, first to the evidentiary argues Turning erred the State to introduce into the trial court allowing he had been convicted of evidence that with in- possession methamphetamine deliver, second and that he was on tent parole. Appellant’s is the trial court erred the the evidentiary by permitting argument to offer the rebuttal of Officer Pittman about testimony discussesthese two seized in the search. The majority items but cannot be because they issues together, they joined represent in his first and distinct issues. contends argu- Appellant separate as a were not that his convictions and status ment parolee His second under Rules 403. 404(b) argument admissible Pittman was not rebuttal Officer proper it to evidence because was not presented by responsive

237 the defense. makes no that Pittman’s testi- Appellant argument Yet, admissible under Rules the mony 404(b).3 majority addresses these issues as if the two involve same of law they point and holds that the rebuttal was not admissible under testimony when does not on 404(b), that the rebuttal appellant argue appeal was not admissible under that rule. these testimony respects, is flawed. majority opinion status,

With convictions and regard prior parole moved liminebefore trial Heather appellant preclude Douglas from that was on the time of his arrest testifying appellant parole and that she was officer. The court the motion in parole granted and it in denied that Ms. could state her part part, ruling Douglas as a officer. also occupation moved in limineto parole Appellant the State from into evidence his prohibit con- introducing victions for to manufacture conspiracy of with intent deliver. The court made the that the State could not introduce preliminary ruling those convictions “unless the defendant first issue as brings up far as and lack of et cetera.” ignorance knowledge, Dawson,

After cross-examination of Officer appellant’s State asked the trial court to reconsider its rulings regard status and his convictions. The appellant’s parole that argued had the door appellant from opened by eliciting testimony on Dawson cross-examination that much alleged parapher- nalia were common household that items uses. The legitimate trial court it that was “the agreed, stating defendant’s contention that he had these just used accidentally things they being — for lawful I believe that intent or purposes. he has becomes critical far knowledge as as the State is concerned.” The court thus Heather permitted Douglas testify was on under her for the offense supervision he and that also had a conviction for previous possession methamphetamine with intent to deliver. not mentioned Although majority, the trial court instruction that gave this evidence cautionary 3 Although chose to objection recite his brief his entire to Officer Pittman’s 404(b) that he made at which argument, trial, included a does argument not advance that Pittman’s was not admissible under any Rule appeal 404(b). 404(b) argument. has abandoned Rule Hale v. Consequently, appellant (2000); 62, 31 Ark. S.W.3d fn.7 Dondanville v. Ark. 157 S.W.3d571 App. (2004). bad character for the proving

not to be considered purpose than to show for no other it should be considered purpose motive, intent, of mistake or absence knowledge, identity proof or accident. the convictions the rulings admitting prior assigns Appellant view, In the was on as error. prior the fact that he my 403, and the 404(b) under Rules convictions were admissible resulted no status preju- appellant’s parole regarding

dice. 330, State, 266 the (1954), In v. Ark. S.W.2d 804 223 Alford as when acts of misconduct clarified the law to court prior supreme a teaches that of are in criminal trial. The decision proof admissible its is to show never admissible when relevancy other crimes is only character, crime. a of bad addicted to that the defendant is person The court went on to however: say,

If on the is relevant independently other conduct accused part — some tending prove to the main issue relevant in the sense of is rather than that the defendant a prove material point merely — admissible, with may then evidence of that conduct be criminal instruction the court. ‘While cautionary principle a proper rule, general yet, of as an as usually spoken being exception fact, it is of it is not of other proof matter exception; crimes, but other acts which are from crimes as evidence of merely as intent or showing knowledge, design, their nature competent crimes, words, In other be which is admitted. may although they another the fact that evidence shows that the defendant was guilty when otherwise it crime does not it from admissible prevent being v. would be on the under trial.’ State DuLaney, issue competent 17, 112 S.W. 158. Ark. 334,

Id. at 266 S.W.2d 806. are now embodied Rule 404(b), principles Alford which provides: crimes, Crimes, Other orActs. Evidence of other Wrongs, wrongs, acts character of the in order to is not admissibleto prove person however, may, show that he acted in therewith. It be conformity motive, as proof admissiblefor other such purposes, opportunity, intent, identity, or absence mis- plan, knowledge, preparation, take or accident. rule, has held on a with court

Consistent supreme are of occasions that evidence of sales of contraband number relevant on the issue of intent when the accused is independently with of contraband with intent to deliver. In possession charged State, 107, v. Lincoln 285 Ark. 685 S.W.2d 166 court (1985), no error where found various witnesses were allowed to testify from as of his they drugs bought appellant past, proof intent State, to deliver the cocaine in v. possession. Holloway 438, 293 Ark. 738 S.W.2d 796 was also (1987), convicted of of cocaine with intent to deliver. A witness possession that, testified that had told her she if knew else anyone cocaine, she should refer that to him. The court needing person the admission of this under Rule as upheld 404(b), proof relevant the issue intent to deliver. See v. also Johnson Ark. 972 S.W.2d 935 error in (1998) (no redact failing references to sales in statement to drug as appellant’s police of intent where with proof charged contraband with intent to deliver); Scroggins sales (1993) admissible to show intent (prior when of controlled charged delivery substance). 489, State,

In Neal v. 320 Ark. 898 S.W.2d 440 (1995), onwas trial for of with intent appellant possession marijuana to deliver. He asserted the defense that he had no knowledge inwas his home. The State marijuana introduced testimony several witnesses who said that had from they purchased marijuana affirmed, in the The court appellant past. supreme stating “[i]n claim, view of Mr. Neal’s which was made in his counsel’s opening statement before the that he had no of the jury, knowledge home, in his presence marijuana evidence of sales was relevant to cast doubt The grievous upon testimony.” that, court further held effect was although prejudicial strong, it unfair, could not that the was the defense say prejudice given was asserted. State, The 218, decision in v. 308 Ark. 822 S.W.2d Crawford There, 386 involved a (1992), similar situation. was accused of cocaine with intent to possessing deliver. Cocaine was house, discovered in search of his and defended the a witness charge by who testified that the presenting cocaine him, to not the The

belonged State elicited appellant. testimony had sold cocaine to a confidential informant the day before the search. State, v. Holloway the court Citing supra, upheld the admission of the evidence as relevant to issue of intent. 110,

In Owensv. 325 Ark. (1996), were convicted of appellants manufacturing methamphetamine, deliver, intent to and with pos- methamphetamine possession that the trial argued They appeal session of drug paraphernalia. a witness said that who testimony erred in admitting court two with manufactured appellants she had arrests, chemicals and that she had before their purchased months six months them to use manufacturing of Rule to its to the arrests. interpretation Referring previous 469 (1986), S.W.2d in Sullivan 404(b) admitted the court determined properly the offenses were it was relevant show that because appellants occurred. The court stated: committing actually accused rel- falls within the “independent Barbara Sparks’ testimony in this Lindsey. enunciated in Sullivanand jury evance” concept whether the deciding engaged case had the task appellants of methamphetamine, possessed deliver, drug Barbara possessed paraphernalia. with intent whether, case, to the issues of this testimony was relevant Sparks’ were actually manufacturing methamphetamine, the appellants household items in the manu- ordinary certain actually using it with possessed facturing merely process, possessed deliver, whether the items found in the house the intent See Ark. Code Ann. 5-64- could be used as drug paraphernalia. § was relevant show that these (v) 1993). Her (Repl. Thus, which were accused occurred. offenses of the appellants 404(b) Rule violated. 926 S.W.2d at 656-57.

Owens conclusion, the court was also this reaching persuaded that, when a defendant is its decisions charged previous holding deliver, sales, with evidence of intent prior drug time, are to show intent. Even if not too remote in admissible involved more than the witness’s testimony prior drug though sales, to the the court found those cases be because analogous cases the value of such evidence in decisions drug recognized that, is an issue. The court further held where intent purpose detrimental, its value exceeded while the testimony probative of unfair the prejudice. danger law, in I am convinced that the this the

With background did not abuse its discretion by trial court admitting appellant’s earlier, As noted the State was required convictions. prove and that he possessed that appellant possessed

241 the with the intent to manufacture paraphernalia methamphet- offense, amine. As an element of the intent was appellant’s squarely issue, thus evidence on the issue of intent bearing possesses That relevance. independent appellant previously conspired he that methamphetamine previously possessed with the intention it the have ten- selling that dency materials in prove appellant possessed question with intent of The producing methamphetamine.

conviction also has the tendency proving that the items he knowledge possessed paraphernalia which is manufactured. The value of probative this evidence was further enhanced defense that the by appellant’s sum, materials had uses common to most households. legitimate established that the offense of testimony with intent manufacture paraphernalia actu- occurred. While this evidence was its ally undeniably prejudicial, value was not of unfair probative outweighed by danger prejudice. status,

As for the trial court no committed appellant’s parole error in convictions to be introduced appellant’s allowing into evidence. Consequently, testimony disclosing was on in connection with one of those convictions was not most, such a revelation. At stunning this was cumulative testimony convictions, to the evidence concerning appellant’s previous court has that evidence is supreme adopted position cumulative is not considered State, v. 347 prejudicial. Threadgill 986, State, Ark. see also v. (2002); Smith 354 Ark. 226, 118 State, 134, S.W.3d 542 v. (2003); 66 Ark. 991 Camp App. Therefore, (1999). S.W.2d 611 testimony no cause to reverse. parole provides the rebuttal contends that

Concerning testimony, appellant of Officer Pittman the evidence seized detailing the 1988 search was not to that which he responsive presented I defense. with that disagree argument. admissibility court, rebuttal evidence lies within the sound discretion of the trial and we will not reverse absent abuse of that showing discretion. Bell v. 973 S.W.2d 806 (1998). matters, is Rebuttal evidence that which is offered to new reply if even it with evidence case-in- State’s overlaps presented chief, as as long responsive presented the defense. Kincannon Ark. S.W.3d App. The fact that the State could have (2004). the testi- presented on its introduction case-in-chief does not in its preclude mony the Bellv. raised defense. serves to refute evidence rebuttal if it State, supra. case, as to the gave testimony this appellant’s parents found in the various items uses which put

innocent appellant revealed that residence. Officer Pittman’s search of his testimony for similar items purposes possessed past the not so Clearly, testimony responsive legitimate. defense, not its the and the trial court did abuse evidence raised by that Pittman’s it. also contends discretion by allowing Appellant of the sheer numbers because testimony unduly prejudicial however, this did raise items that were mentioned. Appellant, of this trial. Had wished limit breadth at argument he could and should have raised on objection state we do not It no citation of authority basis. requires first on issues that are raised time address appeal. I at a decision on this am loss explain majority’s point. hand, one concludes that evidence should On majority case-in-chief, and on the other have been the State’s presented holds the evidence was not admissible all under Rule it from inconsistent makes Aside 404(b). positions, taking Furthermore, neither reliance appeal. majority’s argument on the decision in Birchettv. 708 S.W.2d in that case is that (1986), sorely holding misplaced. is not allowed to elicit from a defendant for rebuttal witness as an end-around presenting purpose trial. witnesses advance of discovery requirement disclosing no here. That has holding absolutely application discussed, I For the reasons would affirm convic- appellant’s I in this tion. am authorized to state that Judge Vaught joins opinion.

Case Details

Case Name: Cluck v. State

Court Name: Court of Appeals of Arkansas

Date Published: Jun 8, 2005

Citation: 209 S.W.3d 428

Docket Number: CA CR 04-710

Court Abbreviation: Ark. Ct. App.