John Mokol v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JOHN MOKOL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-909

June 16, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR02-4082]

HON. WILLIAM PROCTOR JR., CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant John Mokol seeks a reversal of his conviction for manufacturing methamphetamine, arguing that the trial court erred in denying his motion for directed verdict. We affirm.

On October 12, 2002, at approximately 4:00 p.m., North Little Rock Police Officer Ronnie Miller conducted a valid stop of an automobile that appellant was driving. After appellant gave Officer Miller a false name, he was arrested for obstructing governmental operations. Pursuant to North Little Rock's impoundment policy, Officer Mark Tozer searched the automobile appellant had been driving and found a black duffel bag in the rear passenger seat. While checking the bag for inventory purposes, Officer Tozer opened the side pocket and noticed a clear glass mason jar that contained a clear liquid and a pink liquid. Officer Tozer immediately requested assistance, and Detective Jason Broach from the narcotics unit responded. Detective Broach found the components of a methamphetamine laboratory in the black duffel bag and subsequently took a statement from appellant. Appellant told him that the meth lab was his and that he only cooks the drug for his personal use. He also stated that he was manufacturing the drug with the items found in the vehicle.

On November 26, 2002, the State filed a three-count information against appellant alleging that on or about October 12, 2002, he had committed three criminal offenses: (1) manufacturing methamphetamine, a Class Y felony pursuant to Ark. Code Ann. § 5-64-401(a)(1)(i); (2) possession of drug paraphernalia, a Class B felony pursuant to Ark. Code Ann. § 5-64-403(c)(5); (3) obstructing governmental operations, a Class C misdemeanor pursuant to Ark. Code Ann. § 5-54-102(a)(1). Appellant was also alleged to be a habitual offender with four or more prior felony convictions, as defined in Ark. Code Ann. § 5-4-501(b).

Appellant was tried before a jury on April 15, 2003. At the beginning of the trial the State moved for a dismissal of the misdemeanor obstruction of governmental operations charge, and the motion was granted. Officers Miller and Tozer and Detective Broach testified for the State, as did Arkansas State Crime Laboratory Chemist Norman Kemper. Mr. Kemper described the particular "red phosphorus" method of manufacturing of methamphetamine that was allegedly being conducted in the vehicle driven by appellant. He also testified as to the tests he performed on the liquid in the glass jar found in the black duffel bag, stating that it contained a bi-layer solution consisting of a top layer of organic solvent and a bottom aqueous layer. After further analysis on both layers, Mr. Kemper determined that the bottom layer contained methamphetamine.

After the State rested its case-in-chief, appellant moved for a directed verdict, arguing that he did not "believe the State has made its prima facie case that, Number 1, a usable methamphetamine [was] manufactured and, Number 2, if [it was], there has been no evidence that Mr. Mokol (appellant) manufactured [it]." The trial court denied the motion. Appellant then exercised his right not to testify, and the defense rested without presenting any other witnesses. Appellant's counsel renewed his motion for directed verdict stating, "He did not manufacture. I don't think the evidence proves that he manufactured methamphetamines or that a usable form of methamphetamines were [sic] manufactured at all."

The jury found appellant guilty of manufacturing methamphetamine and of possession of drug paraphernalia with intent to manufacture methamphetamine. Appellant was sentenced, as a habitual offender with four or more prior felony convictions, to twenty years for manufacturing methamphetamine and five years for possessing drug paraphernalia with the intent to manufacture. The trial judge ran the sentences concurrently. On April 28, 2003, the trial court entered the judgment and commitment order, and on May 16, 2003, appellant filed a notice of appeal.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). 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 forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Furthermore, "[a] jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant's guilt from improbable explanations of incriminating conduct." Burley v. State, 348 Ark. 422, 431, 73 S.W.3d 600, 606 (2002). Appellant made his motions for directed verdict at the proper times as required by Rule 33.1(a) (2003) of the Arkansas Rules of Criminal Procedure at the close of the evidence offered by the prosecution and at the close of all of the evidence.

On appeal, appellant argues that the statute criminalizing the manufacture of methamphetamine, Ark. Code Ann. § 5-64-401, requires the State to prove the weight of the methamphetamine at issue. Pursuant to that statute, the least severe penalties are those imposed for manufacturing less than twenty-eight grams, which includes all adulterants or diluents. He maintains that the trial court erred in denying his motion for directed verdict because the State failed to introduce substantial evidence of the weight of the bi-layer liquid, or the methamphetamine Mr. Kemper testified was at the bottom of the jar. He asserts that in a criminal case the State may not prove an element of an offense by depending solely on the jury's common knowledge or common sense, Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), and that here, all the jurors could do to determine the weight was look at State's exhibit No. 1 and guess or speculate about the weight of the bi-layer liquid and the weight of the part of that liquid that consisted of methamphetamine. Appellant contends that determining the existence of a material element of a criminal offense by resorting to guesswork or speculation does not amount to substantial evidence of his guilt.

Rule 33.1(a) of the Arkansas Rules of Criminal Procedure requires that a motion for directed verdict shall state the specific grounds therefor. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). At trial appellant challenged whether the State had proven that a usable form of methamphetamine had been manufactured and whether he had manufactured it. He argued that because the methamphetamine liquid was not in its final, usable form, it could not support a conviction for manufacturing the drug. See Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003). He neither challenged the weight of the methamphetamine seized from him nor asserted that the State failed to prove the weight of the methamphetamine. Because appellant failed to raise the issue of the weight of the drug at trial, he is precluded from arguing it now.

Even if the issue had been raised below, the weight of the controlled substance is not an element of the offense of manufacturing methamphetamine, but rather comes into play only as to the range of sentence that a convicted manufacturer should receive. The lowest amount that he could have been charged with manufacturing, less than twenty-eight grams, carries a possible sentence of ten to forty years in prison, or life in prison. See Ark. Code Ann. § 5-64-401(a)(1)(i) (Supp. 2001). Appellant was sentenced, as a habitual offender with four or more prior felony convictions, to twenty years for manufacturing methamphetamine and five years for possessing drug paraphernalia with the intent to manufacture. The trial judge ran the two sentences concurrently. Because appellant's sentence falls within the range of sentences set forth for the lowest amount of methamphetamine manufacturing, the failure of the State to introduce a particular weight for the sample did not prejudice appellant. See Buckley v. State, 349 Ark. 52, 76 S.W.3d 825 (2002). Additionally, appellant made no claim at trial that he was prejudiced, and arguments made for the first time on appeal will not be considered. See Abshure, supra.

Affirmed.

Bird and Crabtree, JJ., agree.