Alvin Tinkes v. State of Arkansas

ar02-476

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

ALVIN TINKES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-476

April 30, 2003

APPEAL FROM THE SEVIER

COUNTY CIRCUIT COURT

[2000-26]

HONORABLE CHARLES A.

YEARGAN, CIRCUIT JUDGE

AFFIRMED

Appellant, Alvin Tinkes, was tried by a jury and found guilty of the offenses of manufacturing a controlled substance (methamphetamine), simultaneous possession of drugs and firearms, possession of a controlled substance (methamphetamine), and aggravated assault. He was sentenced to forty years on each of the first two offenses, to run concurrently, and he was sentenced to five years on the possession charge and six years on the aggravated assault charge, to run consecutively to the first two offenses. We affirm.

Appellant's first point of appeal contends that the guilty verdicts he received for manufacturing of a controlled substance, simultaneous possession of drugs and firearms, and aggravated assault are not supported by substantial evidence as required by the Fourteenth Amendment Due Process Clause as set forth in Jackson v. Virginia, 443 U.S. 307 (1979). He begins his argument by asserting that our substantial-evidence standard of review is constitutionally flawed under Jackson. We disagree. In addition to the fact that appellant did not raise this specific argument below, our supreme court has recently reaffirmed its position that the substantial-evidence standard of review satisfies the constitutional requirements of Jackson. In Williams v. State, 351 Ark. 215, 227-28, 91 S.W.3d 54, 62 (2002), the court explained:

This Court recently reaffirmed Jones, [269 Ark. 119, 598 S.W.2d 748 (1980)] and, moreover, again declined to explicitly adopt the rational fact-finder test. See Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). In short, because the Court's standard of review is correct, and, because substantial evidence supports the appellant's convictions, we affirm.

Moreover, we find that there was substantial evidence to support the three convictions challenged by appellant.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Wright v. State, 80 Ark. App. 114, 91 S.W.3d 553 (2002). 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 that is of sufficient certainty and precision to compel a conclusion. Id. Circumstantial evidence is substantial when it excludes every reasonable hypothesis consistent with innocence, and whether it does is a question for the jury. Id. In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State. Id.

Manufacturing Methamphetamine

Appellant's primary contention with respect to his conviction for manufacturing methamphetamine is that the State did not establish that methamphetamine was actually manufactured. Our cases have not required the actual finished product in order to support a conviction for manufacturing methamphetamine. Arkansas Code Annotated section 5-64-101(m) (Repl. 1997) provides:

"Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance: [by practitioners.]

In Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999), this court was presented with a situation in which it was established that not all of the components necessary for the manufacture of methamphetamine were present but that another person was supposed to bring to the house that night the ammonia needed "to finish off the cook." This court concluded:

The evidence viewed in the light most favorable to the verdict of guilt shows that appellant's home contained the makings of a methamphetamine laboratory and all but one component necessary for manufacturing methamphetamine, that appellant had expected the arrival of the missing ingredient, and that he had begun the cooking process. We find that this evidence constitutes substantial evidence to sustain the verdict of guilt.

Id. at 110, 3 S.W.3d at 715. See also Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989). In Lee, a witness testified that the substance in the flask could be identified as methamphetamine but that it was not down to the actual powdered-out product, which is soldon the streets. The supreme court held that the "substance does not have to be in a form to be sold before a `manufacture' occurs. The Controlled Substances Act defines manufacture as `the production, preparation, propagation, compounding, conversion, or processing of a controlled substance ....'" Lee, 297 Ark. at 426-27, 762 S.W.2d at 793.

Similarly, in the instant case, Linda Burdick, a chemist with the state crime lab, testified about all of the items that were found in the building located next to appellant's mother's house and how they contribute to the manufacturing process, e.g., coffee filters, hot plate, iodine, iodine crystals and tincture, Red Devil lye, Heet, lighter fluid, hydrogen peroxide, tubing, glassware, pseudoephedrine, muriatic acid, paint thinner, red phosphorus, and kitty litter. With respect to whether everything necessary to manufacture methamphetamine was present at this location, she testified that "the salt was missing for the final step but everything else, the ingredients were there, or they had been prepared to a point where they could be used."

Moreover, appellant testified that he obtained the "lab" from the house of a person named Sharon Johnson; that he and a man named Homer "loaded it up in the pickup" and took it to appellant's mother's house; that at that time, he did not know how to make methamphetamine; that he knew several people who did; that he tried to make meth on several occasions; and that "it just never did work."

We find that there was substantial evidence to support the conviction for manufacturing methamphetamine.

Simultaneous Possession of Drugs & Firearms

With respect to his conviction for simultaneous possession of drugs and firearms, appellant contends that although loaded firearms were found in the meth lab, there was no testimony that the guns were, in fact, operational, and that the firearm possessed by appellant at the time of his capture was not shown to have a nexus to the lab itself. We find the arguments unconvincing. First, appellant did not raise the "operational" argument at trial. We do not address arguments for the first time on appeal. Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002). Moreover, a sufficient nexus was established between the firearm that appellant possessed upon capture and the meth lab.

Arkansas Code Annotated section 5-74-106 (a)(1) (Repl. 1997) provides:

(a) No person shall unlawfully commit a felony violation of § 5-64-401 or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of:

(1) A firearm[.]

In Rabb v. State, 72 Ark. App. 396, 403, 39 S.W.3d 11, 16 (2001), this court explained that the "proof must show that appellant possessed a firearm, ... and that a connection existed between the firearm and the controlled substance."

Here, appellant not only had a firearm on his person, which was retrieved from a holster strapped to his body, he was firing it. He retained the gun, a .45 caliber Llama semi-automatic pistol, as he tried to flee from the officers, and when he was eventually forced to drop the gun, it still had five rounds of ammunition in it. We find that a sufficient nexus was established by the evidence to support appellant's conviction for simultaneous possession of drugs and firearms.

Aggravated Assault

The final conviction challenged on the basis of insufficient evidence is that for aggravated assault. We find no merit to this argument as well.

Arkansas Code Annotated section 5-13-204 (Repl. 1997) provides in pertinent part:

(a) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.

Appellant contends that the State did not establish 1) circumstances manifesting extreme indifference to the value of human life, nor 2) conduct creating a substantial danger of death or serious physical injury. Moreover, he argues that the officers were in dark clothing; that he thought they were drug dealers coming to take the lab by force; that he stopped firing as soon as the officers identified themselves; and that although he did not drop the gun on command, when he was finally subdued he made no attempt to point it at the officers.

First, appellant did not preserve this argument for appeal. In his directed-verdict motion, he contended that the State had failed to prove his purposeful intent to commit murder, which was necessary to establish the offense of attempted murder with which he was charged. He did not mention by name or elements the lesser-included offense of aggravated assault. Moreover, even if he had preserved the argument, he would not prevail.

Several officers testified that shots were fired in their direction. Appellant did not deny the fact that he was firing toward the officers, but he testified that he was firing over their heads. Thus, even if appellant's testimony were creditable, it still establishes "extreme indifference," and the creation of a "substantial danger of death or serious physical injury." Ark. Code Ann. § 5-13-204 (Repl. 1997); Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819(2000). Moreover, Dale Pierce, an investigator with the South Central Drug Task Force, testified that after appellant was captured, he stated, "If you SOBs would have come during the daylight, I would have killed all of you." That testimony negates appellant's effort to establish that he was only firing because he thought the officers were drug dealers coming to take back the lab. We find that there was substantial evidence to support appellant's conviction for aggravated assault.

For his second and final point of appeal, appellant contends that the production of methamphetamine obviously gives rise to simple possession of the substance at the end of the manufacturing process, and that because simple possession is a lesser-included offense of manufacturing, his convictions for both manufacturing methamphetamine and simple possession of it constitute double punishment for the same conduct in violation of his right to be protected against double jeopardy. We agree that simple possession of a controlled substance is a lesser-included offense of manufacturing that substance. Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993). However, we disagree that appellant's rights against double jeopardy were violated because, under the facts of this case, he has not established that the possession and manufacturing convictions were based upon the same conduct.

In Cothren v. State, 344 Ark. 697, 704-05, 42 S.W.3d 543, 548-49 (2001), our supreme court explained the double-jeopardy protections afforded by the United States and Arkansas constitutions and Arkansas Code Annotated section 5-1-110 (Repl. 1997):

The Double Jeopardy Clauses of the United States and Arkansas Constitutions protect criminal defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.

. . . .

In Blockburger v. United States, 284 U.S. 299 (1932), the U.S. Supreme Court held that the double jeopardy bar applies in the multiple punishment context where the two offenses for which the defendant is punished cannot survive the "same-elements" test. The same-elements test, commonly referred to as the "Blockburger" test, is as follows:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not . . . . [A] single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

The Blockburger test has been applied by this court, Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993), and the Arkansas General Assembly has codified this constitutional protection at Ark. Code Ann. § 5-1-110 (Repl. 1997), which provides in relevant part:

(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense if:

(1) One offense is included in the other, as defined in subsection (b) of this section;

. . . .

(b) . . . . An offense is so included if:

(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged[.]

(Citations omitted and emphasis added.) Therefore, as discussed previously, possession of a controlled substance is a lesser-included offense of manufacturing that substance. Craig, supra. However, conviction of both crimes violates double jeopardy only if the offenses arise from the same course of conduct. Cothren, supra.

Here, appellant bases his double-jeopardy argument upon the possession of a substance that is created from the manufacturing process; however, he has not shown that his convictions for manufacturing methamphetamine and for possessing it are based upon the same conduct. Hayes McWhirter, a criminal investigator for the state police, testified that after he secured the lab, which was located in a separate building, he went over to the house. He said that appellant's mother was in the house and that he found a room that he believed to be appellant's because his billfold, containing his driver's license and some money, was on the dresser. McWhirter testified that aluminum foil with white powder, a plastic bag with some white residue in it, and tinfoil with a few brown rocks in it were found in the extra bedroom. He further stated that aluminum foil with white residue and several rocks on it and a plastic container with some white powder were also found in the extra bedroom. Linda Burdick, the forensic chemist, testified that the substances tested positive as methamphetamine. Appellant himself testified that on the night in question, he did not have any methamphetamine that had actually been finished by him.

We conclude that this evidence establishes that appellant's convictions for manufacturing methamphetamine and for possessing it were not based upon the same conduct. The manufacturing process was taking place in the lab, located in a separate building. The simple possession was based on the evidence found in appellant's bedroom in the house. Therefore, his double-jeopardy arguments must fail.

Affirmed.

Robbins and Crabtree, JJ., agree.