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ARKANSAS COURT OF APPEALS

DIVISION I No. CR-16-285

Opinion Delivered: NOVEMBER 9, 2016

APPEAL FROM THE HOWARD GARY BRIAN COGBURN COUNTY CIRCUIT COURT APPELLANT [NO. 31CR-15-44]

V. HONORABLE CHARLES A. YEARGAN, JUDGE

STATE OF ARKANSAS AFFIRMED; REMANDED IN PART APPELLEE FOR CORRECTED SENTENCING ORDER

KENNETH S. HIXSON, Judge

Appellant 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.

When an appellant challenges the sufficiency of the evidence, we review the

sufficiency argument prior to a review of any alleged trial errors. Bohanan v. State,

,

(2001). The test for determining the sufficiency of the evidence

is whether the verdict is supported by substantial evidence, direct or circumstantial.

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Substantial evidence is evidence forceful enough to compel a conclusion with reasonable

certainty without resort to conjecture. Breedlove v. State,

,

(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,

,

.

Officer 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.

Officer 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.

During 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 baggies.

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The 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

bedroom.

Jeff 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.

Officer 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.

We 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

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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 may have included other

plant material besides marijuana. Mr. Cogburn posits that the chemist was uncertain as to

how much of the suspected marijuana presented for analysis was marijuana or how much

the suspected marijuana weighed, and therefore that there was insufficient evidence to

support the above two offenses.

We conclude that Mr. Cogburn has failed to preserve his sufficiency challenge to the

manufacturing-marijuana conviction, and that his challenge to possession of marijuana with

purpose to deliver is moot. In a jury trial, a directed-verdict motion must be made at the

close of the State’s case and at the end of all the evidence, Arkansas Rule of Criminal

Procedure 33.1(a), and must state specific reasons for which the evidence is deficient. Wilson

v. State,

. A motion generally stating that the evidence is insufficient

does not preserve specific claims for appeal.

In Mr. Cogburn’s directed-verdict motion, which he made at the close of the State’s

case and renewed at the close of the evidence, he stated:

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Your Honor, since the State has rested, Defendant would move for directed verdict of acquittal, specifically as to all four counts as there’s been insufficient evidence for each of those. I know that doesn’t reserve much for purposes of appeal. But, specifically, as far as Count Two is concerned, on the Possession with Purpose to Distribute, Defendant would move for judgment of acquittal. As far as the element that concerns the actual purpose to distribute to another person. We think there’s insufficient evidence regarding any baggies or scales. That was what was listed in the Information regarding evidence towards the purpose. Also the amount, we would ask the Court for a directed verdict of the “with purpose” part of that statute.

Although Mr. Cogburn generally moved for a directed verdict on each of the four counts

with which he was charged, he never made a specific motion for a directed verdict on the

manufacturing-marijuana charge or apprised the trial court of what element of that offense

was allegedly not proved. Based on Rule 33.1, and in accordance with our holding in

we hold that Mr. Cogburn’s motion was too general to preserve his argument

that the State failed to prove the minimum-weight element of the manufacturing-marijuana

charge.

Although Mr. Cogburn did make a specific directed-verdict motion on the

possession-of-marijuana-with-purpose-to-deliver charge, arguing insufficient proof of his

purpose to deliver, Mr. Cogburn was not convicted of that offense. Instead, the jury found

that Mr. Cogburn had no purpose to deliver and convicted him of the lesser-included

offense of possession of marijuana. Therefore, appellant’s argument on appeal that there was

insufficient evidence to support a conviction for possession of marijuana with purpose to

deliver is moot. 1

1 We observe that, under this point on appeal, Mr. Cogburn does not challenge the sufficiency of the evidence supporting his convictions for simple possession of marijuana, possession of drug paraphernalia, or simultaneous possession of drugs and firearms. Nor did he make any specific arguments below to preserve any challenge to the sufficiency of the evidence for these offenses. Mr. Cogburn made no directed-verdict motion at all as to 5 Cite as

Moreover, even had appellant’s arguments regarding the weight of the marijuana

been properly preserved below and argued on appeal, they lack merit. Mr. Bruce analyzed

a bag containing leaves stripped from the growing marijuana plants and determined that the

bag weighed 33 grams, which far exceeded the 14-gram threshold to support a conviction

for Class D felony manufacture of marijuana. The total weight of the marijuana tested by

Mr. Bruce was 39.65 ounces, and he testified that although the bags may have contained

some other plant material, the bags contained mostly marijuana. 2

Mr. Cogburn’s next argument is that the trial court erred in permitting hearsay

testimony about what his wife had told the police. The statements by his wife were that he

was growing marijuana using timers and grow lights, and that she was in fear of losing her

kids due to the drug activity. Mr. Cogburn acknowledges that, in Winbush v. State,

,

(2003), we stated that an out-of-court statement offered to

explain a police officer’s actions during an investigation is not hearsay. However,

Mr. Cogburn contends that in this case the officer’s course of conduct was not at issue and

that it was unnecessary that it be explained. Mr. Cogburn thus asserts that admission of the

testimony was an abuse of discretion. Mr. Cogburn further argues that his wife’s hearsay

possession of marijuana. In order to preserve challenges to the sufficiency of the evidence supporting lesser-included offenses, defendants must address the lesser-included offenses either by name or by apprising the trial court of the elements of the lesser-included offenses questioned by their motions for directed verdict. Mainard v. State,

,

(2008). 2 Mr. Cogburn’s conviction for Class D felony possession of marijuana was pursuant to Arkansas Code Annotated section 5-64-419(b)(5)(C), which required a finding that he possessed more than 4 ounces. 6 Cite as

statement about being in danger of losing her kids was prejudicial to his defense, and that

there was no proof that her children were taken from her.

We need not decide whether there was any error in admitting the allegedly

objectionable testimony because Mr. Cogburn cannot demonstrate prejudice. An appellate

court will not reverse a trial court’s evidentiary ruling absent a showing of prejudice.

Chatfield v. State,

. When the evidence of guilt is overwhelming and

the error allowing the admission of hearsay evidence is slight, we can declare the error

harmless and affirm.

In this case investigators found multiple marijuana

plants, multiple containers of marijuana, multiple firearms, and drug paraphernalia at

Mr. Cogburn’s house. Mr. Cogburn admitted to the police that he was growing marijuana,

and that the marijuana and guns inside the house belonged to him. The evidence at trial

overwhelmingly demonstrated Mr. Cogburn’s guilt, and any error in admitting his wife’s

hearsay statements caused him no prejudice.

Mr. Cogburn’s remaining argument is that the trial court erred in denying his request

to submit an affirmative-defense jury instruction with respect to the simultaneous-

possession-of-drugs-and-firearms charge. Arkansas Code Annotated section 5-74-106

makes it unlawful to commit a felony drug violation while in possession of a firearm, and

subsection (d) provides that “[i]t is a defense to this section that the defendant was in his or

her home and the firearm . . . was not readily accessible for use.” Mr. Cogburn proffered a

jury instruction based on the above defense, but the trial court refused it. Mr. Cogburn

contends that this was error because there was evidence to raise a fact question as to whether

the firearms found by the police in his home were readily accessible.

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A party is entitled to an instruction on a defense if there is sufficient evidence to raise

a question of fact or if there is any supporting evidence for the instruction. Sharp v. State,

,

(2005). A trial court’s ruling on whether to submit a jury

instruction will not be reversed absent an abuse of discretion. Northern v. State,

,

. There is no error in refusing to give a jury instruction where

there is no basis in the evidence to support the giving of the instruction. Stalnaker v. State,

,

.

We hold that there was no abuse of discretion in the trial court’s refusal to give the

jury instruction. The testimony and evidence at trial left no fact question as to whether the

multiple loaded firearms found in appellant’s bedroom were readily accessible for use. In

the small bedroom where Mr. Cogburn was found sleeping, the police seized loaded guns

from a black bag just a couple of steps from where Mr. Cogburn was sleeping, which

according to the testimony was easy for him to access. Another gun was located on the

headboard of the bed and was loaded and “ready to fire.” Numerous guns, both loaded and

unloaded, were found in the bedroom, along with ammunition throughout the room. From

the evidence presented at trial, there was no basis from which the jury could conclude that

Mr. Cogburn did not have firearms readily accessible for his use. 3

Although we affirm appellant’s convictions, there are errors in the sentencing order

that must be addressed. The sentencing order reflects that Mr. Cogburn was convicted of

3 Although Mr. Cogburn suggests that his former experience in law enforcement bolsters his argument that the affirmative-defense instruction should have been given, we fail to see how appellant’s background in law enforcement has any relevance to the issue of whether the guns found in his bedroom were accessible to him. 8 Cite as

Class C felony manufacture of marijuana pursuant to Arkansas Code Annotated section 5-

64-439(b)(3), when in fact he was convicted of Class D felony manufacture of marijuana

under section 5-64-439(b)(2). In addition, the sentencing order contains a scrivener’s error

stating that appellant’s Class D felony possession-of-marijuana conviction was pursuant to

Arkansas Code Annotated section 5-64-419(b)(5)(ii); the section for that offense is actually

5-64-419(b)(5)(C). A trial court can enter an order nunc pro tunc to correct clerical errors

in a judgment or order. Sizemore v. State,

,

.

Accordingly, we affirm appellant’s convictions, but we remand in part for the trial court to

correct the sentencing order to conform with the particulars outlined above. See Allen v.

State,

; Williams v. State,

.

Affirmed; remanded in part for corrected sentencing order.

GLOVER and HOOFMAN, JJ., agree.

James Law Firm, by: William O. “Bill” James, Jr., for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.

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