Cite as 2016 Ark. App. 543
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, 72 Ark.
App. 422, 38 S.W.3d 902 (2001). The test for determining the sufficiency of the evidence
is whether the verdict is supported by substantial evidence, direct or circumstantial. Id.
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Substantial evidence is evidence forceful enough to compel a conclusion with reasonable
certainty without resort to conjecture. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d
313 (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, 2011 Ark. App. 432,
384 S.W.3d 585.
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, 2015 Ark. App. 709. A motion generally stating that the evidence is insufficient
does not preserve specific claims for appeal. Id.
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
Wilson, supra, 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
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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, 82 Ark.
App. 365, 107 S.W.3d 882 (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, 102 Ark. App. 210, 283
S.W.3d 627 (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.
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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, 2013 Ark. App. 565. 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. Winbush, supra. 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,
90 Ark. App. 81, 204 S.W.3d 68 (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, 2015 Ark.
App. 426, 467 S.W.3d 755. 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,
2014 Ark. App. 412, 437 S.W.3d 700.
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.
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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, 2015 Ark. App. 728, 478 S.W.3d 281.
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, 2015 Ark. App. 598; Williams v. State, 2014 Ark. App. 454.
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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