Fitting v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: Sam Bird
• Citation: Fitting v. State, 229 S.W.3d 568, 94 Ark. App. 283 (Ark. App. 2006)
• Decision Date: 22 February 2006
• Docket Number: No. CA CR 05-628.,CA CR 05-628.
• Parties: Daniel Thomas FITTING, Appellant, v. STATE of Arkansas, Appellee.

229 S.W.3d 568

Daniel Thomas FITTING, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 05-628.

Court of Appeals of Arkansas, Division IV.

February 22, 2006.

James Law Firm, by: William O. James Jr., Little Rock, for appellant.

Mike Beebe, Ark. Att'y Gen., by: Nicana Corinne Sherman, Little Rock, for appellee.

SAM BIRD, Judge.

Appellant Daniel Thomas Fitting¹ was convicted by a jury of possession of drug paraphernalia with intent to manufacture methamphetamine under Arkansas Code Annotated section 5-64-403 (Supp.2003). He was sentenced to fourteen years' imprisonment in the Arkansas Department of Correction. On appeal, appellant contends that the trial court erred in denying his motions for a directed verdict. He argues that the State provided no evidence to show that he was in actual or constructive possession of drug paraphernalia with intent to manufacture; that there was no corroboration of the accomplice's testimony; and that the trial court improperly allowed the State to introduce evidence in violation of Ark. R. Evid. 404(b) in order to corroborate the accomplice's testimony. We find no error; thus, we affirm.

At trial, Rhonda Fitting testified that she and appellant had been married for nineteen years, but they were not living together on May 12, 2004. She said that appellant was staying at Eddie McCann's house and that she went to McCann's residence on May 12 to speak to appellant. According to Ms. Fitting's testimony, she and appellant had an argument and she called the police. She told police that she smelled a "strong odor" while at McCann's residence. She admitted that she had previously pled guilty to possession of methamphetamine.

On cross-examination, Ms. Fitting said that appellant did not move in with McCann but that he just stayed at McCann's house "off and on for a couple of weeks." She explained that the strong odor that she smelled when she arrived at McCann's smelled like "something burning or something burnt" and that it "didn't smell like a chemical smell." She said that she did not know who lived with McCann, other than a female named Jennifer Foster and McCann's daughter.

On re-direct examination, Ms. Fitting testified that she "didn't know for sure" whether the burning odor could be methamphetamine. She said that she never entered McCann's house but that she "stood at the door on the front porch." The State also questioned her about a statement that she had previously signed, which said that she "smelled a really strong odor and suspected that they were in the middle of cooking meth" when she was at McCann's house. She explained that she told the officer that the odor "may be methamphetamine," but she did not know for sure. She also said that she thought the appellant was angry that she showed up at McCann's house because she "knew the people that stayed over there were involved with cooking." On re-cross examination, she admitted that she did not know for sure whether methamphetamine was cooking and said that "it just smelled like something was burnt."

Eddie McCann also testified at trial. He said that he was incarcerated because of events that occurred at his home on May 12, 2004, and that he had pled guilty to conspiracy to manufacture methamphetamine, maintaining a drug premise, and possession of drug paraphernalia. He stated that on May 12, 2004, appellant and a female named Jennifer Foster were "cleaning up a cook" when he came home from work and that the police showed up "soon after that." He said that he was in the back bedroom at the time the police arrived, and that appellant and Foster were in the bathroom "wiping everything down" and "bagging everything up." McCann also said that he was "getting ready to burn it" and that he "knew what they were doing."

McCann testified that the police knocked on the front and back doors, but he did not answer. According to McCann, the police left after they knocked the first time. McCann explained that he went outside to "light the stuff in the burn barrel," but his lighter would not work so he came back into the house. McCann said that the police knocked a second time and he answered the door; he then gave consent to the officers to search the house. He said that appellant had been staying with him "off and on for four to six weeks." He also said that appellant would come over to the house for "two or three days at a time" and would then "leave for a couple of days." According to McCann's testimony, appellant lived at McCann's house "part-time." McCann admitted that he had a previous felony conviction for delivery of methamphetamine in 1988.

On cross-examination, McCann said that he lied to police to "cover [his] butt" and that he was "willing to say whatever it takes to get ... out of trouble." McCann explained that appellant would "come and go" and that appellant had a key to McCann's house. He also said that the back door to his home was always unlocked. He stated that he thought appellant was "hiding" in the bathroom after police arrived.

On re-direct examination, McCann said that he was "not denying that [he] knew what had been going on at [his] house for the five or six weeks that [appellant] had been staying there." He also said he was "getting free meth," so he "knew what was going on." He admitted that, in the sense that he had an agreement with appellant to use his house, he conspired to manufacture methamphetamine.

On re-cross examination, McCann said that he knew what appellant and Foster were doing outside of his bedroom because he was "moving around a lot" going to get something to eat and drink. He admitted that he tried to minimize his involvement when he spoke to the police. He said that appellant and Foster were trying to clean up. He also said that he had worked all day when he walked into the house, which "smelled just like a meth lab."

The State then attempted to put on evidence that, sixteen days after the events occurring on May 12, 2004, police discovered drug paraphernalia in appellant's work vehicle. The State also proposed to introduce a statement from appellant admitting that the drug paraphernalia in the work vehicle was his. Appellant objected, arguing that the evidence was more prejudicial than probative under Ark. R. Evid. 404(b), and asked the court not to admit it. The trial court overruled the objection, stating as follows:

[T]he reason I'm going to overrule your objection . . . and the reason I'm going to allow it would be because it does corroborate Mr. McCann's testimony. Regardless of whether or not Mr. McCann is lying or making this up or whatever, that's strictly up to the jury to decide. But what it does is, Mr. McCann indicated that they had been doing some cooking in there before. He never did say, and no one asked, if Mr. Fitting, the defendant, had cooked there before, but it does give some indication that—he did indicate that Mr. Fitting had cooked there that day. So, it would corroborate Mr. McCann's testimony that he gave today. Whether that testimony is believable or not doesn't matter.

Ivan Hanson then testified for the State that he was appellant's employer in May 2004. He said that on May 28, 2004, he gave law enforcement officers permission to search a company vehicle, which appellant had used as his personal vehicle and had parked at a local gas station. On cross-examination, Hanson testified that he did not see appellant put anything into the vehicle or lock it.

Lieutenant James Kulesa also testified. He said that on May 28, 2004, Hanson gave him permission to search a company truck that was parked at a gas station. During the search, Kulesa found a briefcase behind the driver's seat with components known to be utilized in the manufacture of methamphetamine. Specifically, the briefcase contained a container of Red Devil Lye, a bottle of peroxide, a green balloon, coffee filters, gloves, a plastic container with a red lid, a glass bottle with "reddish" residue, a plastic bag with a white granular substance, a bottle of drain opener, a Mountain Dew bottle with clear liquid, a glass jar with a bi-layer liquid, a plastic bottle with a hose attached, and a glass bottle with stained filters. Kulesa said that an informant had called him to tell him that the items were in the truck parked at the gas station. He also said that he "processed the truck" and took samples from the items in it.

Kulesa further testified that, on May 31, 2004, appellant came to the Lonoke County sheriff's office and agreed to speak to Kulesa about the items found in the truck. Kulesa said that appellant told him that everything in the vehicle belonged to appellant and that appellant said he "had pretty much been good for thirty days" and "intended to throw the items in a dumpster, but he was running late for work." According to Kulesa, appellant also said that he "was trying to be good and get away from it and he was just trying to get rid of that stuff."

Kulesa also testified that he came into contact with appellant at Eddie McCann's residence around 6:00 p.m. on May 12, 2004, and that appellant was there with McCann and Jennifer Foster. Kulesa stated that he did not receive an answer after he knocked on the front door, so he knocked on the back door. Kulesa said that he noticed a burn barrel near the back door, which contained a can of camp fuel and a bottle that "looked like it had been burned with some kind of sludgy material in it." Kulesa left the house and parked in an adjacent driveway, and McCann came out of the back door of his residence and walked over to the burn barrel. Kulesa returned to McCann's residence, knocked on the back door, and McCann "walked out and put his hands behind his back like to be handcuffed." According to Kulesa, McCann said that appellant and Foster were "hiding in the bathroom" and gave police permission to search his home.

When Kulesa first entered the house, appellant and Foster were "walking toward the living room from the back area of the...