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Patton v. State9/12/2001
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Lucky Dale Patton was tried before a jury on four charges resulting from the execution of a search warrant on December 4, 1998, at a residence that had been rented to Patton and his wife, Cindy Arwood Patton. He was acquitted of the charge of manufacturing methamphetamine but was convicted of charges of simultaneous possession of firearms and methamphetamine, possession with intent to deliver methamphetamine, and possession of drug paraphernalia.
Patton appeals his convictions. He contends that the trial court erred 1) by not dismissing all charges because of insufficient evidence, 2) by admitting three categories of inadmissible evidence, 3) by refusing to dismiss the simultaneous possession of methamphetamine and firearms charge pursuant to the defense provided by Ark. Code Ann. § 5-74-106, 4) by instructing the jury that the affirmative defense required proof by a preponderance of the evidence, 5) by instructing the jury on accomplice liability, and 6) by denying Patton's request for a mistrial based upon remarks by the prosecutor in rebuttal closing argument. We find no error; therefore, we affirm.
1. Whether the Trial Court Erred by not Dismissing all Charges Because of Insufficient Evidence
The law makes no distinction between circumstantial and direct evidence in a review for sufficiency; however, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Whether the evidence excludes every such hypothesis is ordinarily for the trier of fact to determine. Id. In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998).
At trial, Deputy Sheriff Scott Russell of the Sixteenth Judicial District Drug Task Force testified that law enforcement officers maintained twenty-six continuous hours of surveillance before the warrant was served at 3:23 p.m. on December 4. He testified that when officers arrived to serve the warrant, Patton had just come out of a shed in the back yard, and his wife was in the yard on her hands and knees, wearing a bathrobe and digging in the dirt with a saucer; they were arrested and taken to the police station. When questioned about Patton's general condition, Russell stated, "Based upon my, at that time, approximately eleven years of law enforcement experience, I felt Mr. Patton was under the influence of methamphetamine."
Russell further testified that officers found all items necessary to make methamphetamine except anhydrous ammonia, and that insurance papers indicated that Patton owned a 1989 Lincoln Continental that was in the driveway. Russell testified that officers seized items such as marked telephone books and writings in order to determine if other people were involved, and they also seized an audiotape from an answering machine. He testified that a cigar box in plain view in the kitchen contained a small spiral notebook with notes, a film canister with an off-white powder substance believed to be methamphetamine, coffee filters with residue, an ibuprofen bottle with tablets, eighteen hypodermic needles, and a large Baggie containing a large quantity of off-white powder-like substance that field-tested positive for methamphetamine. He said that three blister packs of pseudoephedrine, an empty salt container, and two fans were found in the shed; rolling papers were found in a jewelry cabinet in the bedroom; and, in what they called
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