Johnny Kuske v. State of Arkansas

ar03-432

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

JOHNNY KUSKE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-432

December 17, 2003

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[CR02-340]

HONORABLE LANCE HANSHAW,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Johnny Kuske, was tried by a jury and found guilty of the offenses of criminal attempt to manufacture methamphetamine, possession of drug paraphernalia with intent to manufacture, and endangering the welfare of a minor. On appeal, he challenges the sufficiency of the evidence to support the first two of these convictions, 1) criminal attempt to manufacture methamphetamine and 2) possession of drug paraphernalia. We affirm.

Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id.

At trial, Kimberly Boch testified that she called the Cabot police on August 10, 2002, because a "really bad" smell similar to paint thinner began entering her first-floor apartment through the vents where she and her four children were sleeping. Edward Sims, a Cabot police officer, testified that he was called to the Steeplechase Apartments on August 10, 2002. He said that he could smell the chemical odor Ms. Boch complained of and that he traced the smell to an apartment on the third floor. He stated that he knocked on the door several times with no answer, that he contacted the apartment manager, and that they were opening the door when they encountered the occupant, Catherine Holt. He said that she told him the smell was caused by a bottle of fingernail polish remover that her daughter had dropped the night before. He explained that she gave him consent to look around the apartment and that he noticed that the window in the master bedroom was open and the screen was off. He said that he went outside and found a man sitting on top of the roof. He acknowledged that he never saw appellant on the roof or at the scene.

Catherine Holt testified that on August 10, 2002, she, her daughter, Scott McFadden, and appellant were at her apartment. She said that on Thursday, August 8, 2002, she saw appellant at the Tobacco Store asking for "pseudo," and that she then saw him get in a truck with Scott McFadden. She testified that appellant and McFadden came to her apartment on Thursday night, that they played cards and smoked methamphetamine, and that on Friday morning she gave McFadden a key to her apartment so he could take a shower. She said that McFadden came over Friday night around seven to pick up his clothes and that he left soon thereafter with no plans to return. She stated that early that next morning (August 10), between 4:30 and 5:00 a.m., she awoke to the sounds of banging on her child's window, that she got up to look out the front door, and that she saw police through the peephole and a chair lodged under the door handle. She went to the bathroom to get her robe and saw appellant and McFadden around the toilet. She let the police in and they looked around. She said that she did not see what happened to appellant and McFadden, and that there was no way out of her third-floor apartment other than through the front door or the window in her master bedroom. She acknowledged that she had pled guilty to maintaining a drug premises and allowing manufacturing in her home. She said that she did not see anything in appellant's hands nor did she see him flushing the toilet.

Detective John Dodd testified that he took part in the search of the Holt apartment. He said that he and Detective Huggins went back through the apartment and found a coffee filter hanging off the vent in the bathroom and that it was submitted to Detective Sanderson. He said that he did not see appellant on the scene.

Detective Chris Huggins testified that he obtained consent to search the Holt residence; that he found the components of a meth lab inside; and that some of those items included coffee filters, iodine, iodine tincture, hydrogen peroxide, and aluminum foil. He also said that a pyrex dish in the kitchen had residue that tested positive for methamphetamine. He identified several other exhibits of items found in the residence.

Amanda Camp, a forensic chemist, testified about different methods of making meth and how the evidence retrieved from the apartment fit into those methods. In particular, she explained that pseudoephedrine is one of the three primary ingredients for making methamphetamine using the red-phosphorus method.

Dennis Sanderson, a narcotics officer, testified that he is clandestine meth-lab certified. He said that he went to Holt's Steeplechase apartment on August 10 and that the other officers showed him items there that were consistent with meth labs. He stated that he took charge of all of the evidence. He said that he did not see appellant there, but that he had reason to believe that appellant had been there based on a statement by Ms. Holt. He said that he made a traffic stop on appellant a couple of days later, that he called another officer to the scene, that he read appellant his rights, and that he asked appellant questions about August 10. He stated that he asked appellant how his legs were and that appellant smiled and said, "Yeah, I'm all right. It didn't hurt. It hurt later that night. I figured ya'll would be wanting to talk to me." Sanderson said that they took appellant to the Cabot Police Department, that he signed a rights form, and that he gave Sanderson a statement that Sanderson copied down word for word. He said that appellant got a chance to make any corrections that needed to be made, initialed it, and signed it.

Appellant's statement provided in pertinent part:

We got to the apt. on Friday night and a female was there here [sic] name was Christy. When we got in the apt Scott went back to Christy's room and talked to her for a while. When Scott came out we started cooking. Approximately one hour and a half from start to finish we were done.

Appellant testified that his statement was incorrect where it said "we" started cooking and "we" were done. He said that it should have said "he." Appellant stated that he just watched; that he did not participate; and that he was just there to get some methamphetamine because he was hooked on it, not to prepare it or cook it.

1) Criminal Attempt to Manufacture Methamphetamine

Under this sub-point, appellant contends that the State did not prove appellant's mental state with respect to his purpose. We cannot reach the merits of appellant's argument because it was not preserved for our review.

Appellant's directed-verdict motion provided:

[DEFENSE COUNSEL]: The defendant wants to move for a directed verdict. The only evidence that puts this client - - puts this witness there is a time that's too short to have done the manufacturing. Secondly, the only evidence that puts him there at that time, he was seen on his knees in the bathroom. He was not there the night before or sufficient time to have completed the process. The only evidence he had of any possible acquisition of product is that he asked for pseudophedrine in a store the day before. It just doesn't show he has manufactured anything.

THE COURT: Well, he gave a statement.

[DEFENSE COUNSEL]: I'm going to deal with that on - - I'm going to put him on the stand and deal with that. But the evidence is so slim that exists that I would move for a directed verdict.

This trial motion does not challenge the sufficiency of the evidence with respect to the State's proof of appellant's intent or purpose. Yet, that is what he argues on appeal. A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Marbley v. State, 81 Ark. App. 165, 100 S.W.3d 48 (2003). It has been repeatedly held that a directed-verdict motion requires a movant to apprise the court of the specific basis on which the motion is made. Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002); Ark. R. Crim. P. 33.1.

Moreover, even if this court were to address the merits of this subpoint, we would find that there was substantial evidence to support the verdict on the charge of criminal attempt to manufacture methamphetamine.

Arkansas Code Annotated section 5-3-201 (Repl. 1997) provides:

(a) A person attempts to commit an offense if he:

(1) Purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or

(2) Purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.

(b) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result.

(c) Conduct is not a substantial step under this section unless it is strongly corroborative of the person's criminal purpose.

Arkansas Code Annotated section 5-64-101(m) (Repl. 1997) provides:

(m) "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:

(1) By a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or

(2) By a practitioner or by his authorized agent under his supervision for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale[.]

The verdict was supported by appellant's own statement, in which he was reported as saying in pertinent part:

We got to the apt. on Friday night and a female was there here [sic] name was Christy. When we got in the apt Scott went back to Christy's room and talked to her for a while. When Scott came out we started cooking. Approximately one hour and a half from start to finish we were done.

Also, at trial appellant admitted that he had been at the apartment at the time the police arrived and that he jumped out of the window. Although appellant challenged the accuracy of his statement at trial, stating that contrary to his statement, he just sat there and watched, that he did not participate, and that he was just at the apartment to get some methamphetamine because he is hooked on it, his truthfulness concerning the statement involved a matter of credibility. The credibility of witnesses is an issue for the jury. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. In addition, the woman who lived in the apartment testified that appellant was present in the apartment on the night in question. Moreover, there was ample testimony concerning several items that are used to manufacture methamphetamine that were found in the apartment that night.

2) Possession of drug paraphernalia with intent to manufacture methamphetamine

Under this sub-point, appellant challenges the sufficiency of the evidence to support his conviction for possession of drug paraphernalia to manufacture methamphetamine, contending that appellant "was never found in possession of anything." We find that there was sufficient evidence to support appellant's possession-of-drug-paraphernalia conviction.

Arkansas Code Annotated section 5-64-403(c) (Supp. 2003) provides in pertinent part:

(c)(1)(A)(i) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of subchapters 1-6 of this chapter.

The same recitation of evidence cited previously under the first sub-point provides sufficient support for this verdict as well. In addition, the woman who lived in the apartment also testified that she saw appellant enter the Tobacco Store a couple of days prior to the incident and ask the lady at the counter for "pseudo," which she explained is a kind of allergy medicine. She said that she then saw appellant leave the store and get in a truck with Scott McFadden. Amanda Camp, the forensic chemist, testified that pseudoephedrine is one of the three primary ingredients for making methamphetamine using the red-phosphorus method. This evidence, coupled with appellant's statement and the evidence recovered from the scene, was sufficient to support appellant's conviction for this offense.

Affirmed.

Bird, J., agrees.

Pittman, J., concurs.