Cantrell v. State
Decision Date | 01 October 2009 |
Docket Number | No. CR 08–1308.,CR 08–1308. |
Citation | 343 S.W.3d 591,2009 Ark. 456 |
Parties | Joe Lester CANTRELL, Appellant,v.STATE of Arkansas, Appellee. |
Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, Little Rock, for appellant.Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.ANNABELLE CLINTON IMBER, Justice.
Appellant Joe Cantrell appeals from a judgment and commitment order entered by the Perry County Circuit Court on July 25, 2008, in two criminal cases consolidated for trial. In Case No. CR 06–32, he was convicted of attempting to manufacture a controlled substance, methamphetamine; possession of drug paraphernalia with intent to manufacture methamphetamine; and maintaining a drug premise. In Case No. CR 08–14, he was convicted of failure to appear. Cantrell was sentenced to consecutive terms totaling 145 years in prison and fines in the amount of $40,000.
Cantrell raises two points on appeal. First, he alleges that the circuit court erred in denying his directed-verdict motions in Case No. CR 06–32. Second, he maintains that the enhanced prison sentence for failure to appear is an illegal sentence because the State never charged him as a habitual offender in Case No. CR 08–14. This case was certified to us by the Arkansas Court of Appeals pursuant to Ark. Sup.Ct. R. 1–2(b)(5) as a case involving a significant issue needing clarification or development of the law. We affirm on both points of error.
On the morning of October 30, 2006, in response to complaints from neighbors, Perry County police officers arrived at the defendant's home. They immediately noticed a strong chemical odor about the house. They all testified that they associated this smell with the manufacture of methamphetamine and that because of its pungency they had to take turns investigating the house.
When they arrived, the officers found the defendant asleep on the couch in the living room. Cantrell signed a consent form allowing the officers to search the premises. In the kitchen, as well as a broom closet and a refrigerator located outside on the lawn, the officers found camp fuel, pure acetone, drain cleaner, a metal condenser coil, several hot plates, various sized tubing, a funnel, a blender and latex gloves, all of which can be used in the process of manufacturing methamphetamine. The officers also found a thermos containing a substance in the final stages of methamphetamine production, and a plastic bucket containing a substance that tested positive for pseudoephedrine, an ingredient in methamphetamine manufacture. Two light bulbs that tested positive for methamphetamine residue were located on a table in the living room, and a plate with a razor blade that tested positive for methamphetamine residue was in plain view. At one point, Cantrell admitted to the officers that it was his methamphetamine lab. Later, he claimed the lab belonged to his wife, who also resided at the house, and that she and a friend had been manufacturing methamphetamine while Cantrell was absent.
Cantrell was arrested and charged with manufacture of a controlled substance, in violation of Ark.Code Ann. § 5–64–401; possession of drug paraphernalia with intent to manufacture, in violation of Ark.Code Ann. § 5–64–403; and maintaining a drug premises in violation of Ark.Code Ann. § 5–64–402. He was ultimately convicted of attempting to manufacture a controlled substance, possession of drug paraphernalia with intent to manufacture, and maintaining a drug premises.
On appeal, Cantrell challenges the sufficiency of the evidence supporting each conviction. In order to preserve a sufficiency of the evidence argument for appellate review, the appellant must move for a directed verdict at the close of the State's case and again at the close of all the evidence in the trial. Ark. R.Crim. P. 33.1(c); see also Middleton v. State, 311 Ark. 307, 308, 842 S.W.2d 434, 435 (1992). Rule 33.1(a) and (c) provide that a motion for a directed verdict must “state the specific grounds” of the motion and “specify the respect in which the evidence is deficient.” We have long held that under this provision the appellant's preservation of a sufficiency-of-the-evidence challenge will fail if the appellant was ultimately convicted of a lesser-included offense but did not address the elements of this lesser-included offense when making the motion for a directed verdict. See, e.g., Brown v. State, 347 Ark. 308, 315, 65 S.W.3d 394, 398 (2001); Walker v. State, 318 Ark. 107, 108, 883 S.W.2d, 831, 832 (1994). Accordingly, “a defendant, in making his motions for directed verdict, must anticipate an instruction on lesser included offenses and specifically address the elements of that lesser included offense on which he wishes to challenge the State's proof in his motion.” Brown v. State, 347 Ark. at 315, 65 S.W.3d at 398.
In this case, Cantrell was charged with the offense of manufacturing a controlled substance, but he was ultimately convicted of the lesser-included offense of attempt to manufacture a controlled substance. In his motions for directed verdict at the close of the State's case and after the close of all the evidence, Cantrell argued that there was no evidence that methamphetamine in its final form had actually been produced. While this objection addresses an element of the offense of manufacturing methamphetamine, it does not address the lesser-included offense of attempt to manufacture methamphetamine. Thus, because Cantrell did not preserve the issue properly before the circuit court, he is barred from arguing on appeal that the sufficiency of the evidence does not support his conviction of attempt to manufacture methamphetamine.
Cantrell has, however, properly preserved his challenge to the sufficiency of the evidence supporting the other two controlled-substance convictions. The standard of review to be applied is well settled:
A motion for a directed verdict is a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. 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. 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.”
Walley v. State, 353 Ark. 586, 594, 112 S.W.3d 349, 353 (2003) (citations omitted).
A person is guilty of possession of drug paraphernalia with intent to manufacture if he uses, or possesses 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.” Ark.Code Ann. § 5–64–403(c). On appeal, Cantrell maintains that there was no proof he had control over the drug paraphernalia such that he could be said to possess it, since he shared the residence with his wife. The Arkansas Criminal Code defines possession as “exercis[ing] actual dominion, control, or management over a tangible object.” Ark.Code Ann. § 5–1–102(15). This court has held that “the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed.” Walley v. State, 353 Ark. at 595, 112 S.W.3d at 353 (citations omitted). Though constructive possession can be implied when the accused has joint control over the contraband with another, we have held that there must be a factor linking the accused to the contraband; mere joint occupancy is insufficient. Id. A defendant may, however, be held to constructively possess a controlled substance when the defendant owns the property on which it is found, and the controlled substance is in the defendant's proximity and in plain view. George v. State, 356 Ark. 345, 354, 151 S.W.3d 770, 775 (2004).
Here, Cantrell owned the property jointly with his wife, and he was the only one at the house when the police arrived. He admitted to the officers that the methamphetamine lab was his. The light bulbs and plate with a razor blade, used for smoking and preparing methamphetamine respectively, were in plain view. The other drug paraphernalia was located in common areas throughout the house such that the jury could reasonably conclude that Cantrell constructively possessed the paraphernalia with intent to manufacture. Furthermore, the facts in the case at bar distinguish it from cases where small quantities of drugs or paraphernalia were found in discrete, out of sight locations, or where the residence was not owned by the defendant. See, e.g., Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). Thus, we conclude that the evidence, viewed in the light most favorable to the State, supports Cantrell's conviction for possession of drug paraphernalia with intent to manufacture.
Cantrell also challenges the sufficiency of the evidence supporting his conviction of maintaining a drug premises. Section 5–64–402 of the Arkansas Code Annotated provides that it is unlawful for a person “knowingly to keep or maintain any ... dwelling ... that is resorted to by a person for the purpose of using or obtaining a controlled substance ... or that is used for keeping a controlled substance.” Ark.Code Ann. § 5–64–402(a)(2). It is...
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