Hughes v. State

• Citation: 66 S.W.3d 645,347 Ark. 696
• Decision Date: 21 February 2002
• Docket Number: No. CR 01-699.,CR 01-699.
• Parties: Robert Gene HUGHES v. STATE of Arkansas.
• Court: Arkansas Supreme Court

66 S.W.3d 645

347 Ark. 696

Robert Gene HUGHES v. STATE of Arkansas.

No. CR 01-699.

Supreme Court of Arkansas.

February 21, 2002.

Phillip A. McGough, P.A., North Little Rock, for appellant.

Mark Pryor, Att'y Gen., by Misty Wilson Borkowski, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

The issue in this case is whether the Double Jeopardy Clause bars conviction of a lesser-included offense following a directed verdict on the greater offense, during the same proceeding. The Arkansas Court of Appeals concluded that such a conviction was barred, and it reversed Appellant Robert Hughes's conviction of attempted manufacture of methamphetamine. See Hughes v. State, 74 Ark.App. 126, 46 S.W.3d 538 (2001). The State filed a petition for review of the court of appeals's decision, and we granted it, pursuant to Ark. Sup.Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001); Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). We affirm the trial court and reverse the court of appeals.

The record demonstrates that on September 2, 1999, an anonymous telephone call was made to the Greene County Sheriff's Office concerning two suspicious men walking along County Road 912, near a wooded area. In response to the call, Sheriff Dan Langston drove to the area, where he witnessed the two men getting into a green Geo Metro and leaving a residence. When the two men saw the officer, they pulled into another driveway. Langston subsequently identified the two men as Appellant and Steven Corder. Appellant, who was driving the car, had multiple warrants for his arrest, as well as a warrant for a parole revocation. Upon placing Appellant under arrest, Langston called Sergeant Toby Carpenter to the scene to assist in completing an inventory of the car's contents.

Carpenter found the following items of contraband in the car: a police scanner and a bottle of pseudoephedrine tablets, found under the passenger's seat; a piece of burned tinfoil with residue, found beside the passenger's seat; a black rubber hose with blue residue, found in the back floorboard; and two moist coffee filters and a second bottle of pseudoephedrine tablets, found under the driver's seat. Carpenter described the filters as smelling strongly of ether and containing a large amount of white powder, later identified as methamphetamine. Additionally, while transporting Corder to the jail, Carpenter noted a strong odor of ether coming from Corder.

In addition to the items found in the car, the officers recovered remnants of a methamphetamine lab in the woods, near the area where the two men were originally seen. Shoe prints were left near the items found in the woods, and both Appellant and Corder were wearing muddy shoes and clothing. Upon arriving at the scene, Carpenter again smelled a strong odor of ether. Among the items discovered in the woods were two propane tanks containing anhydrous ammonia; four punched cans of starting fluid; several Zip Loc brand plastic bags; a HCL generator; and a white bag covered by leaves and tree roots. Inside the white bag were coffee filters, drain opener, an altered flashlight, salt, tubing, several baggies, a soda bottle lid with a whole cut out, and a glass measuring cup. When questioned by the officers, Appellant admitted that he and Corder had been in the woods; however, he denied that they had been cooking methamphetamine.

Appellant and Corder were subsequently charged with manufacturing methamphetamine, Class Y felony; possession of methamphetamine, Class C felony; and possession of drug paraphernalia, Class C felony. They were tried together in the Greene County Circuit Court. Both men were convicted of possession of methamphetamine, possession of drug paraphernalia, and attempted manufacture of methamphetamine. Appellant was sentenced to a concurrent term of thirty years' imprisonment. The court of appeals affirmed the two possession charges, but reversed the attempted-manufacture charge on the ground that Appellant's double-jeopardy rights had been violated. See Hughes, 74 Ark.App. 126, 46 S.W.3d 538. The State sought review of that decision on the grounds that it was erroneous and that it was based on overruled law. We granted review for the purpose of clarifying the law on double jeopardy.¹

Appellant argues that the trial court violated his double-jeopardy rights when it allowed the jury to consider the lesser charge of attempted manufacture of methamphetamine after the court had directed a verdict on the greater charge of manufacture of methamphetamine. The record reflects that during the trial, at the close of the prosecution's case-in-chief, Appellant moved for a directed verdict on the manufacturing charge. He argued that the prosecution had failed to prove that he and Corder had possessed all the ingredients necessary to manufacture methamphetamine. After considerable argument between the prosecution and counsel for both defendants, the trial court granted a directed verdict on the manufacturing charge. The trial court based its ruling on Sergeant Carpenter's testimony that two ingredients used to make methamphetamine, lithium strips and denatured alcohol, were not found in the car or in the woods.

Immediately thereafter, the deputy prosecutor asked the trial court to allow him to amend the information to charge the defendants with the lesser-included offense of attempted manufacture of methamphetamine. Another lengthy discussion between the parties ensued. Appellant's counsel argued that submitting the lesser-included offense after the court had directed a verdict on the greater offense would violate double jeopardy. The prosecution, on the other hand, contended that Arkansas law allows the state the right to amend the information to conform to the proof, so long as it is done prior to the case going to the jury and without prejudice to the defendants. The prosecution also argued that submitting a lesser-included offense to the jury after dismissal of the greater was not barred by double jeopardy. Otherwise, the prosecution argued, a jury could never consider lesser-included offenses, because to do so, it must first acquit the defendant of the greater offense. The trial court granted the prosecution's motion to amend. The defense then rested, without presenting any evidence. Appellant argues that the trial court's ruling was an acquittal and that submission of the lesser-included offense violated his double-jeopardy rights. We disagree.

The Fifth Amendment to the United States Constitution provides that no person shall be twice put in jeopardy of life or limb for the same offense. Similarly, Article 2, § 8, of the Arkansas Constitution provides that no person shall be twice put in jeopardy of life or liberty for the same offense. The Double Jeopardy Clauses of these constitutions protect criminal defendants from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Wilcox v. State, 342 Ark. 388, 39 S.W.3d 434 (2000) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). It is the first protection that is at issue here.

Our General Assembly has reiterated this protection in two statutory provisions: Ark.Code Ann. § 5-1-112 (Repl. 1997), and Ark.Code Ann. § 16-85-712 (1987). Section 5-1-112(1) provides that a former prosecution is an affirmative defense to a subsequent prosecution for the same offense where the former prosecution resulted in an acquittal. Similarly, section 16-85-712(a) provides in part that an "acquittal by a judgment on a verdict" shall bar another prosecution for the same offense. For purposes of double jeopardy, whether two offenses are the "same offense" depends on whether each statutory provision requires proof of a fact that the other does not. See Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993) (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Under this test, a greater offense and its lesser-included offenses are the same offense. Similarly, an offense and its attempt are considered the same offense for purposes of double jeopardy. See Ark.Code Ann. § 5-1-110(a)(2) (Repl.1997).

Appellant argues that when the trial court granted his motion for directed verdict on the charge of manufacture of methamphetamine, he was acquitted of that charge and any lesser-included offenses. Thus, the first question we must answer is whether the directed verdict in this case was an acquittal. "[A] decision that the evidence is legally insufficient to sustain a guilty verdict constitutes an acquittal for purposes of the Double Jeopardy Clause." Brooks v. State, 308 Ark. 660, 666, 827 S.W.2d 119, 122 (1992) (citing Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986); Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)). The same is true even if the trial court's decision is based on a mistaken belief or an erroneous evidentiary conclusion. Id. The Supreme Court has described a judgment of acquittal as "a jury verdict of not guilty" or "a ruling by the court that the evidence is insufficient to convict[.]" United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Similarly, section 5-1-112(1) provides in part: "There is an acquittal if the prosecution resulted in a determination of not guilty." Thus, to be an acquittal, "the trial court's judgment must be one that indicates that the government's factual case has failed" as to the statutory elements of the offense charged. State v. Zawodniak...