Carroll R. Hughes v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

CARROLL R. HUGHES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-816

June 18, 2003

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[NO. CR-2001-114-1]

HON. JOHN W. COLE,

JUDGE

AFFIRMED

The appellant in this criminal case was charged with attempted manufacture of methamphetamine. After a jury trial, he was convicted of possession of drug paraphernalia and sentenced to six years in the Arkansas Department of Correction.1 For reversal, appellant contends that the trial court erred in denying his motion for a directed verdict. We affirm.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and affirm if substantial evidence exists to support the conviction. Cook v. State, 76 Ark. App. 447, 68 S.W.3d 308 (2002). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Ford v. State, 75 Ark. App. 126, 55 S.W.3d 315 (2001).

Appellant's directed verdict motion was based on the argument that the evidence was insufficient because there was no methamphetamine found and because appellant did not have all the items necessary to manufacture methamphetamine. This argument is without merit. It is not necessary to prove that all the items necessary to produce methamphetamine are present to show that certain items were intended to be used for that purpose and thus constituted drug paraphernalia. We discussed this issue in Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003) as follows:

Mr. Cherry also argues that not all of the elements necessary for production were present and that all the items that were present had ordinary and legal usages. Therefore, he contends, there was insufficient evidence of possession of drug paraphernalia with intent to manufacture. This argument also fails. A person commits the offense of possession of drug paraphernalia with intent to manufacture methamphetamine if he uses, or possesses with intent to use, drug paraphernalia to manufacture methamphetamine. Ark. Code Ann. § 5-64-403(c)(5) (Supp. 2001). The term "drug paraphernalia" specifically includes items such as scales and balances, cuttingagents, bowls, containers, and mixing devices. See Ark. Code Ann. § 5-64-101(v)(5), (6) & (8)(1997 Repl.). These items have ordinary and legal usages, and the fact-finder must determine whether the object is drug paraphernalia considering all logically relevant factors and evidence such as the following: (1) statements by an owner or by anyone in control of the object concerning its use; (2) prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance; (3) the proximity of the object, in time and space, to a direct violation of the controlled substances act; (4) the proximity of the object to controlled substances; (5) the existence of any residue of controlled substances on the object; (6) direct or circumstantial evidence of the intent of the owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to manufacture a controlled substance; (7) instructions, oral or written, provided with the object concerning its use; (8) expert testimony concerning its use. Ark. Code Ann. § 5-64-101(v)(1) et. seq. (Repl 1997).

In this case, the State introduced two, two-quart containers containing a clear liquid with an ether odor; two containers containing an organic solvent and white sediment; a quart glass pill-soaking container containing sediment consisting of methanol, guaifensin, ephedrine; a glass jar containing a tan substance that tested positive for methamphetamine; a one-gallon glass jar containing a methamphetamine solution; thirteen cans of starting fluid that contained ether and three containers of denatured alcohol, which are used to extract the methamphetamine; coffee filters, Liquid Fire, salt, funnel, plastic lids with holes punched through them, and plastic tubing used to make the HCL generator and to separate the liquid from the solid. Sufficient evidence was presented to the jury from which they could conclude that Mr. Cherry possessed these items for the purpose of manufacturing methamphetamine.

Cherry v. State, 80 Ark. App. at 228-29, 95 S.W.3d at 9-10.

In the present case, there was evidence that appellant's trailer contained numerous items employed in the manufacture of methamphetamine. Furthermore, there was evidence of residues and compounds indicating that at least part of the manufacturing process had been completed. Finally, there was evidence that written instructions for making methamphetamine were found in appellant's trailer along with the precursors and residues. The situation in the present case is therefore to be distinguished from that presented in Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002), where there were no additional factors to show that the appellant in that case intended to put the otherwise-lawful products to an illegal use. On this record, we hold that appellant's conviction for possession of drug paraphernalia is supported by substantial evidence.

Affirmed.

Hart and Robbins, JJ., agree.

1 The jury was instructed on, and found appellant guilty of, possession of drug paraphernalia as a lesser-included offense of attempted manufacture of methamphetamine. Although he had an opportunity to do so, appellant made no objection to this characterization at trial, and does not challenge it on appeal. Therefore, the question of whether possession of drug paraphernalia is in fact a lesser-included offense of attempted manufacture of methamphetamine is not before us on appeal, and we express no opinion on the matter.