George v. State

• Decision Date: 04 March 2004
• Docket Number: No. CR 01-871.,CR 01-871.
• Citation: 151 S.W.3d 770,356 Ark. 345
• Parties: Myron Kent GEORGE v. STATE of Arkansas.
• Court: Arkansas Supreme Court

151 S.W.3d 770

356 Ark. 345

Myron Kent GEORGE v. STATE of Arkansas.

No. CR 01-871.

Supreme Court of Arkansas.

March 4, 2004.

Bowden & Smith, by: David O. Bowden, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., Little Rock, for appellee.

RAY THORNTON, Justice.

After a Greene County Deputy found what appeared to be a meth lab in a shed on the property of appellant, Myron George, both appellant and Martin Strugala were arrested. Following appellant's arrest, a search, executed pursuant to a warrant, revealed a working meth lab, components used to produce methamphetamine, and finished methamphetamine. In a criminal information, appellant was charged with being an accomplice in the manufacturing of methamphetamine, possession of methamphetamine, and theft by receiving.

Prior to trial, appellant filed a pro se motion seeking to suppress all evidence obtained during the search of his property¹. An in-chambers hearing was held on appellant's motion to suppress, but the record does not contain a transcript of the proceedings relating to the suppression hearing². A notation on the docket sheet merely states that appellant's motion was denied.

During the process of the trial, appellant's attorney informed the trial court that he objected to Nila Keels, a court reporter who was not certified, transcribing the proceedings. The trial court noted the objection, but stated that he had granted Ms. Keels an emergency certification which would permit her to transcribe the trial. When appellant's counsel persisted in his objection, the trial court ordered him to proceed or face contempt charges.

At the close of the evidence, the trial court granted appellant's motion for a directed verdict on the charge of theft by receiving, but permitted the remaining charges to be considered by the jury. The jury found appellant guilty as an accomplice to manufacturing methamphetamine and possession of methamphetamine. Appellant was sentenced to ten years' imprisonment for his convictions.

Appellant filed a notice of appeal from his convictions. The deadline for filing the record on appeal was August 9, 2001. On August 8, 2001, appellant tendered a partial record and filed a motion seeking a rule on the clerk. We remanded the matter back to the trial court and directed it to take "whatever actions are necessary to secure the prompt certification of a full and complete record for appeal in this matter." George v. State, 346 Ark. 22, 53 S.W.3d 526 (2001). Upon remand, the trial court held a hearing and entered an order finding the there were "no substantive defects in the transcript as prepared by Nila Keels." It further found that "the transcript is sufficiently accurate for use and consideration by the Arkansas Supreme Court for all appellate purposes." Thereafter, appellant's attorney filed a renewed motion for a rule on the clerk. We granted appellant's motion and permitted our clerk to file the record prepared by Nila Keels. George v. State, 351 Ark. 209, 89 S.W.3d 931 (2002). This appeal followed.

On appeal, appellant offers four points for our consideration. We remand this case to the trial court for the limited purpose of conducting an on-the-record hearing on appellant's motion to suppress.

In his first point on appeal, appellant argues that the trial court erred when it denied his motions for directed verdicts on the charges of being an accomplice to the manufacturing of methamphetamine and possession of methamphetamine. We must address this point before considering other assignments of error in order to preserve appellant's right to freedom from double jeopardy. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Additionally, when reviewing a challenge to the sufficiency of the evidence, we consider evidence, which may have been inadmissible, in the light most favorable to the State. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Appellant was convicted of violating Ark.Code Ann. § 5-64-401 (Supp.1999). The jury concluded that appellant was manufacturing methamphetamine. Appellant's criminal liability was based upon his status as an accomplice. In cases where the theory of accomplice liability is implicated, we affirm a sufficiency of the evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002).

Arkansas Code Annotated § 5-2-402 (Rep.1997), articulates the elements necessary to establish that a person is criminally liable for the conduct of another person. The statute provides:

A person is criminally liable for the conduct of another person when:

(1) He is made criminally liable for the conduct of another person by the statute defining the offense; or

(2) He is an accomplice of another person in the commission of an offense; or

(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.

Id. Arkansas Code Ann. § 5-2-403 (Repl.1997), gives the statutory definition of an accomplice: (a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:

(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or

(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Id. We have explained that relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). A defendant is an accomplice so long as the defendant renders the requisite aid or encouragement. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

Mindful of the relevant statutory provisions and case law, we must determine whether there was sufficient evidence to support appellant's conviction. Deputy Mark Davis of the Greene County Sheriff's Department testified that he was on patrol when he drove past appellant's home at approximately 4:00 a.m. As he drove past the home, he noticed a light on in a shed located on appellant's property. When Deputy Davis drove back by the location, the light was turned off, and he decided to stop and investigate. Deputy Davis then discovered that a vehicle owned by Martin Strugala, an individual previously arrested for manufacturing methamphetamine, was parked in appellant's driveway. Upon exiting his car, Deputy Davis smelled anhydrous ammonia coming from the shed. As he approached the shed, Deputy Davis noticed a smoldering burn pile that contained strips of aluminum and coffee filters. He also saw a plastic gas container and what he described as a "pill soak jar." Additionally, Deputy Davis testified that he saw some stripped lithium batteries. Deputy Davis explained that acid from the lithium batteries is used by individuals who manufacture methamphetamine. Deputy Davis then instructed appellant to exit the shed. Appellant complied with Deputy Davis's order, and Martin Strugala also exited the shed. As Strugala exited the shed, Deputy Davis saw a cloud of smoke coming from inside the shed. Deputy Davis explained that he had seen this occurrence many times in other meth labs. Deputy Davis testified that he would consider what he observed at appellant's home to be a working meth lab.

Toby Carpenter, formerly a narcotics investigator with the Greene County Sheriff's Department, also testified at appellant's trial. He explained that after appellant and Mr. Strugala were arrested, a search warrant for appellant's property was obtained. Officer Carpenter testified that during the search of appellant's shed, property, and home, law enforcement officials found coffee filters, quart jars, a Coleman fuel can, a can of acetone, two five-gallon propane tanks, salt, drain cleaner, a hydrochloric generator, lithium batteries, and several containers with white residue on them. Officer Carpenter explained how each component was used in the process of manufacturing methamphetamine. Officer Carpenter also testified that they found lithium salt on coffee filters in the burn pile by the shed on appellant's property. Lithium and salt are also used to manufacture methamphetamine. During the search, a white powder, which was forty-five percent methamphetamine hydrochloride, was also in appellant's shed. Additionally, law enforcement officials...