James Newton Hammon v. State of Arkansas

ar04-222

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JAMES NEWTON HAMMON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-222

December 15, 2004

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. CR-2002-252-1A]

HON. GAYLE K. FORD,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

James Newton Hammon was convicted in an Ashley County jury trial of use of paraphernalia to manufacture methamphetamine, for which he was sentenced to 60 months' probation. On appeal, he argues that the trial court erred in denying his motion to suppress and in failing to grant his directed-verdict motion. We affirm.

Hammon was charged by information with use of drug paraphernalia to manufacture methamphetamine. That offense is codified under Arkansas Code Annotated section 5-64-403 (c)(5)(Supp. 2003), which provides that it is unlawful for any person to use or possess with intent to use drug paraphernalia to manufacture methamphetamine. In pertinent part, our criminal code defines the term "drug paraphernalia" as:

all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in . . . manufacturing, compounding, converting, producing, processing, preparing, . . . packaging, repackaging, . . . a controlled substance in violation of subchapters 1-6 of this chapter (meaning the Controlled Substances Act of this state). It includes, but is not limited to:

. . .

(2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

. . .

(5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

(6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, used, intended for use, or designed for use in cutting controlled substances;

. . .

(9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances[.]

Ark. Code Ann. § 5-64-101 (v) (Repl. 1997).

At trial, the State's chief witness was State Police Corporal Dennis Roberts, a narcotics investigator who was qualified as an expert in the field of "narcotics investigation, narcotics packaging, and methamphetamine lab investigation and cleanup." Roberts testified that he was involved in the search of Hammon's residence and in the seizure of the alleged paraphernalia. Roberts conceded that all of the items seized were "perfectly legal alone that most of us have in our kitchens, garages, etc." However, with the aid of diagrams depicting the "hydriodic acid/red phosphorus" methamphetamine manufacturing processes, he demonstrated that the combination of the seized materials was indicative of an intent to manufacture methamphetamine. Roberts testified that almost all of the necessary chemicals and much of the laboratory equipment required to make methamphetamine were present, but admitted that the police did not find any red phosphorus or byproducts, such as iodine crystals, that would indicate that a key precursor had been produced. In addition, Roberts noted that the police discovered a pan with pseudoephedrine residue and a paper that he described as a "recipe" that listed the ingredients necessary to make methamphetamine. However, he could not explain why cooking oil was also listed on the so-called recipe. Roberts stated that it was his expert opinion that the materials that were seized and introduced into evidence were paraphernalia used in the manufacture of methamphetamine.

The State also called Ann McKee, Hammon's daughter-in-law. She testified that she observed Hammon's wife take approximately twelve boxes of pills and place them in a bowl. Later on, she observed a jar in which the pills had "separated." McKee confessed that later that night, she, her husband Chad, and the Hammons all "used meth." She also testified that they had discussed buying pills in Monroe, Louisiana "to make meth." According to McKee, Hammond's wife put the pills in a Pyrex bowl, then went into the kitchen and shut the door. She recalled that Mrs. Hammon later said something about a foil pan and that she said, "well, I f'd that up" and threw the pan in the trash.

Because of double-jeopardy concerns, Hammon's second point, challenging the sufficiency of the evidence, will be addressed first. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Hammon argues that the State presented insufficient evidence to support his conviction because the jury would have to resort to "pure speculation to find that the household items found by the State were used in the manufacture of methamphetamine." He asserts that Corporal Roberts admitted that he did not find any filters, iodine crystals, or red phosphorus, key ingredients in the red phosphorous manufacturing method. Hammon also argues that Roberts merely speculated about the contents of a scuba tank and a bottle marked muriatic acid without testing the contents. Furthermore, he notes that Roberts admitted that the scales that were seized could have a legitimate purpose. Hammon urges us to find analogous our decision in Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002), a case where we reversed a conviction that rested on the presence of a combination of household items, similar to those in the case at bar, that were linked to the manufacture of methamphetamine by expert testimony. We disagree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdictis supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id.

The legislature has provided us with guidance in determining whether otherwise common materials may be found to be drug paraphernalia. Arkansas Code Annotated section 5-64-101 (Repl. 1997) states:

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, 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 subchapters 1-6 of this chapter;

(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 an 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 facilitate a violation of subchapters 1-6 of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of subchapters 1-6 of this chapter shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia;

(7) Instructions, oral or written, provided with the object concerning its use;

(8) Descriptive materials accompanying the object which explain or depict its use;

(9) National and local advertising concerning its use;

(10) The manner in which the object is displayed for sale;

(11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(12) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise;

(13) The existence and scope of legitimate uses for the object in the community; and

(14) Expert testimony concerning its use[.]

We find Hammon's reliance on Gilmore v. State, supra, to be misplaced. The testimony of Ann McKee, who provided direct evidence of Hammon's intention to use what would otherwise be common household items to make methamphetamine, distinguishes this case from Gilmore. This evidence, which corresponds to the first factor enumerated under Arkansas Code Annotated section 5-64-101, compels us to reject Hammon's contention that the finder of fact would have to resort to "pure speculation" to conclude that this combination of items was present for the manufacture of methamphetamine. Accordingly, we find that there is sufficient evidence to sustain his conviction.

For his second point, Hammon challenges the sufficiency of the affidavit that supported the application for the search warrant for his property. He argues that the affidavit was "based in whole or in part on hearsay and the affiant set forth no particular facts bearing on the informant's reliability." Hammon asserts that, if the hearsay statements are excluded from the affidavit, the remainder of the affidavit is not sufficient to establish probable cause. He specifically notes that "paragraphs 1 and 2" of the affidavit are based entirely on hearsay or the information of a "cooperating individual" and disclose no facts concerning what would cause a person to find these statements reliable. This argument is without merit.

Our standard of review for a trial court's action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892(2003). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts, and we defer to the superior position of the trial judge to pass upon the credibility of witnesses. Id.

The State points out, and we agree, that Hammon's argument only addresses alleged deficiencies in the first two paragraphs of a four-paragraph affidavit. While it is true that these two paragraphs do not specifically identify the individuals that provided information to police, the third and forth paragraphs clearly do so. Specifically, in the third paragraph, Sgt. Harold Freeman of the Monroe, Louisiana Police Department is identified as the source of information concerning the arrest of Hammon; Hammon's girlfriend, Pamela Barnett; Barnett's son, Louis Chad McKee; and McKee's wife, Heather, on charges of conspiracy to manufacture methamphetamine. The fourth paragraph recites that the McKees admitted using methamphetamine in Hammon's residence and witnessing Hammon "cooking crystal" within the past 24 hours. Hammon concedes, and we find dispositive, the well-settled rule that an affidavit for a search warrant need not contain facts establishing the veracity and reliability of non-confidential informants whose identity is known, which is clearly the situation here. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999); Haynes v. State, 83 Ark. App. 314, 128 S.W.3d 33 (2003).

Affirmed.

Vaught, J., agrees;

Pittman, J., concurs.

John Mauzy Pittman, Judge, concurring. I agree with the result in this case. I write separately to emphasize that this case is quite different from Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002). In Gilmore, we were presented with a conviction based on the bare possession of household items that often are used in the manufacture of methamphetamine with virtually no evidence that the defendants in that case intended to use them for that purpose. In the present case, there is abundant evidence that appellant intended to make methamphetamine. This evidence is in no way confined to Ann McKee's direct testimony regarding appellant's intent. In my view, the evidence that appellant possessed a recipe for methamphetamine and a pan containing pseudoephedrine residue, as opposed to intact cold tablets, is sufficient to show not only that appellant intended to use the paraphernalia to produce methamphetamine, but also that the manufacturing process had already begun.