Pamela Gay Barnett v. State of Arkansas

Annotate this Case
ar04-226

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

PAMELA GAY BARNETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 04-226

November 10, 2004

APPEAL FROM THE CIRCUIT COURT OF ASHLEY COUNTY

[NO. CR02-252-1b]

HONORABLE GAYLE K. FORD,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Pamela Gay Barnett, was found guilty by a jury of possessing drug paraphernalia with intent to manufacture methamphetamine. For committing this crime, appellant was sentenced to a term of five years' imprisonment and fined $5,000. She argues on appeal that the trial court erred in denying her motion to suppress and that the evidence is not sufficient to support the guilty verdict. We affirm.

Because of double-jeopardy concerns, appellant's second point challenging the sufficiency of the evidence will be addressed first. Standridge v. State, ___ Ark. ___, ___ S.W.3d ___ (April 29, 2004). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Woolbright v. State, ___ Ark. ___, ___ S.W.3d ___ (April 22, 2004). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Id. We view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.

Arkansas Code Annotated section 5-64-403(c)(5) (Supp. 2003) provides that it is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine. The term "drug paraphernalia" means all equipment, products and materials of any kind which are used, intended for use, or designed for use in manufacturing a controlled substance. Ark. Code Ann. ยง 5-64-101(v) (Repl. 1997).

At trial, Corporal Dennis Roberts, a narcotics investigator with the Arkansas State Police, was qualified as an expert in the fields of narcotics and methamphetamine-lab investigation. Roberts had participated in the methamphetamine-related investigation of appellant and her boyfriend, James Hammon,1 and their home in Hamburg, Arkansas, where they had lived together for eight years. Appellant, Hammon, and Chad and Heather McKee, appellant's son and daughter-in-law, had been arrested in Louisiana for conspiracy to manufacture methamphetamine. After the arrests, Roberts and other officers executed a search warrant at the home and an outbuilding on August 22, 2001.

During the search, the officers found six empty boxes of cold and allergy pills that contained ephedrine or pseudoephedrine. Roberts testified that both of those substances were precursors for manufacturing methamphetamine. A tool box was found that contained a set of electronic digital scales, large plastic baggies, small "thumbnail" baggies, three baggies containing a white, powdery substance, and a small funnel. Roberts described these items as being a "packaging kit" for narcotics. He explained that methamphetamine was usually sold by the gram, sometimes by the half-gram, and that the scales found in the tool box were commonly used by drug offenders for weighing such small quantities of contraband. He said that the thumbnail baggies were used for packaging small quantities of methamphetamine for sale and that the little funnel could be used to pour the contraband into the thumbnail bag. Testing at the crime lab revealed that the white powdery substances found in the baggies proved to be a total of 25.6754 grams of nicotinamide and 1.5560 grams of niacin. Roberts said that he had known these substances to be used as cutting agents. He explained that cutting agents were added to contraband to increase the quantity of the product for sale.

A pie tin containing a brown, burnt substance was found in the kitchen trash can. The brown substance was identified as pseudoephedrine. Wet, "nasty" paper towels, with white powder on them, were also found in the kitchen trash. The white powder measured out to be 9.6661 grams of starch. Roberts testified that starch was used as the binder in cold pills. He believed the evidence signified that the paper towels had been used as a filter to separate the ephedrine from the binding material. Roberts explained the relationship between the pie tin and the paper towels:

[The paper towels] contained the leftover binder from the pills that [were] in [the empty pill boxes]. There was a liquid that these were filtered out of. The liquid had the ephedrine in it. You put the liquid into the pie tin and you would heat it to dry it out. Once it dries out, it comes to [a] granular type substance. The pseudoephedrine will come to the bottom of the pan, or whatever, and that's what they are using. That particular method is for the Red Phosphorus method.

Officers found a Mason jar in a small ice chest that was wrapped in rags to keep the jar from tipping over. The liquid in the jar was methanol, which Rogers said was used as a solvent in the cleaning process of manufacturing methamphetamine. Another set of digital scales was found in appellant's bedroom, as was a triple-beam set of scales. In a lock box, officers found a writing that contained a list of ingredients used in the red-phosphorus method of producing methamphetamine. The list included tincture of iodine, hydrogen peroxide, muriatic acid, distilled water, and materials such as pyrex glassware and tubing. Other documents were found that also listed ingredients and items used in the manufacture of methamphetamine.

Officers also found containers of muriatic acid, iodine, tincture of iodine, hydrogen peroxide, plastic tubing, and Pool Breeze, of which muriatic acid was an ingredient. There was a scuba tank, whose standard fitting had been replaced. Officer Roberts testified that, based on his past experience, he believed the tank had contained anhydrous ammonia, which is used in the Nazi method of producing methamphetamine, because the fitting had corroded and had turned an aqua-blue color. A glass reflux condenser was also found. Roberts said that this was a piece of glassware that was used in the "old type P to P methamphetamine laboratories." The search further revealed an electric tumbler and an electric toaster oven.

Officers Roberts explained to the jury how methamphetamine was produced, and he described how each of the items found in the search was used in that process. He testified that, although any of these items could be purchased at Wal-Mart, he believed that the items were being used to manufacture methamphetamine.

Heather McKee testified that she lived in New York and that she and her husband had been visiting appellant and Hammon that August while her husband, who served in the military, was on leave. She said that, on the night before their arrest, she had seen appellant take pills from a number of boxes and place them into a bowl. She saw the electric tumbler in use on the kitchen floor. She also saw a jar "that had, I guess, the pills had separated, in the separating process." She said that they all had used methamphetamine that night. With regard to the foil pan whose contents had been burned, she recalled that appellant had said, "Well, I f'd that up," and that appellant threw the pan into the trash. She further testified that the toaster oven had been used for heating the pan. She said that they had all gone to Louisiana the day of their arrest to purchase a computer and to buy pills for making methamphetamine. She testified that appellant wanted them to split up in the store and each to buy one or two boxes.

Appellant argues on appeal that there is insufficient evidence to support her conviction for possession of paraphernalia with intent to manufacture methamphetamine. She contends that the items found in the house were common, household materials, and she relies on her and Mr. Hammon's testimony professing their innocence and attesting to their legitimate uses for the materials. She likens the evidence in this case to that which we found deficient in Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002).

In Gilmore, id., the appellants were arrested and charged with possession of paraphernalia with intent to manufacture methamphetamine after purchasing three packages of antihistamines, four cans of starter fluid, butane, and air freshener. A search of their car revealed four more packages of antihistamines and some butane tanks. There was expert testimony given by a police officer at trial that the possession of these items gave rise to a "suspicion" that they might be used to manufacture methamphetamine. We determined that the officer's testimony, being speculative, did not contribute to a finding of substantial evidence and that the evidence was insufficient because the items had legitimate uses, there were no statements made by the appellants concerning a prohibited use, there were no instructions for making methamphetamine found, and no controlled substances or residue were found in connection with the items. The evidence in this case is much different. Here, there were a number of components and materials used in the process of manufacturing methamphetamine and packaging it for sale. The evidence also included recipes for manufacturing methamphetamine. A pie tin was found that contained burned pseudoephedrine. Ms. McKee had seen this pie tin and heard appellant curse because it had been burned. There was also evidence of methamphetamine usage in the home, and there was testimony that cold medication was to be purchased for the purpose of making methamphetamine. We hold that there is substantial evidence to support the guilty verdict.

Appellant's second issue concerns the denial of her motion to suppress. She contends that the affidavit did not provide probable cause for the issuance of the search warrant because the reliability of the informants was not adequately established. Rule 13.1(b) provides in pertinent part:

If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained. ... Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

There is no fixed formula for determining an informant's reliability. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Factors to be considered in making such a determination include whether the informant's statements are: (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Heaslet v. State, 77 Ark. App. 333, 74 S.W.3d 242 (2002).

In reviewing a trial court's ruling on a motion to suppress because of an alleged deficiency of the affidavit, we make an independent determination based on the totality of the circumstances. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). We reverse the trial court's ruling only if it is clearly against the preponderance of the evidence. Id.

The affidavit in the case at bar was prepared by Officer Roberts. It stated:

1. On 08/12/02 a person contacted Chief Tommy Sturgeon of the Crossett Police Department and advised him that James Hammon and his girlfriend (name unknown at the time) were making crystal methamphetamine at their residence on Highway 425, south of Hamburg. Chief Sturgeon's source further stated that Hammon's girlfriend goes to Wal-Mart in Bastrop and Monroe, Louisiana to purchase pseudoephedrine pills every Thursday to be used in their making of crystal methamphetamine. Hammon's girlfriend drives a blue car when making these trips. This source also stated that Hammon has his property "booby trapped."

2. A cooperating individual who has provided reliable information to me in the past, told me that Hammon is a crystal methamphetamine "cook."

3. On 08/21/02 I was contacted by Sargeant Harold Freeman of Metro Narcotics in West Monroe, Louisiana, who advised that he had arrested James Hammon, Hammon's girlfriend, Pamela Barnett, her son Louis Chad McKee and his wife Heather McKee, at the West Monroe Wal-Mart for conspiracy to manufacture methamphetamine. I responded to West Monroe and met with Freeman who told me that Hammon, Barnett, and the McKee's had purchased several boxes of pseudoephedrine at the Wal-Mart and Hammon had also purchased camp fuel (sometimes used in manufacturing crystal methamphetamine).

4. On 08/21/02 I interviewed the McKees and they [sic] admitted using crystal meth at Hammon's residence within the past 24 hours that was provided to them by Barnett. The Mckees also stated they [sic] witnessed Barnett and Hammon "cooking" crystal at the Hammon's residence in the past 24 hours. Louis Mckee also stated that Hammon has told him in the past that Hammon has his property "booby trapped."

Appellant's argument is that the affidavit failed to establish the reliability of the informants mentioned in paragraphs one and two. There is no merit in this argument because the information contained in those two paragraphs was corroborated by the information contained in the following paragraphs. The unnamed informants provided information that appellant and Hammon were making methamphetamine and that appellant traveled to the Wal-Mart in either Bastrop or Monroe,Louisiana, on Thursdays to purchase pseudoephedrine. In the remaining two paragraphs, it was disclosed that appellant, Hammon, and the McKees were arrested on charges of conspiracy to manufacture methamphetamine on August 21, 2002, a Thursday, after purchasing an excessive amount of pseudoephedrine at the Wal-Mart in Monroe, Louisiana. It was further disclosed that methamphetamine had been used at appellant's home the day before and that the methamphetamine had been provided by appellant. It was also stated that methamphetamine had been manufactured at the home within the past twenty-four hours. The information provided in the latter two paragraphs was provided by a law enforcement officer and nonconfidential informants, whose reliability need not be established. Haynes v. State, 83 Ark. App. 314, 128 S.W.3d 33 (2003). Because the information provided by the unnamed informants was corroborated, we cannot say that the trial court's decision to deny the motion to suppress is clearly against the preponderance of the evidence.

Affirmed.

Griffen and Baker, JJ., agree.

1 Hammon was appellant's co-defendant at trial, but this appeal concerns only the appellant. They married in September 2002.