In re

• Decision Date: 26 June 2013
• Docket Number: A13A0932.,Nos. A13A0118,s. A13A0118
• Citation: 745 S.E.2d 666
• Parties: FRANKS v. The STATE. Long v. The State.
• Court: Georgia Court of Appeals

745 S.E.2d 666

FRANKS

v.The STATE.

Long

v.The State.

Nos. A13A0118, A13A0932.

Court of Appeals of Georgia.

June 26, 2013.

Timothy L. Kimble, for Franks.

Herbert McIntosh Poston Jr., Susan Franklin, for the State.

McMILLIAN, Judge.

Co-defendants Charles Randall Franks (“Franks”) and Richard Clayton Long (“Long”) appeal following the denial of their motions for new trial after they were each convicted of one count of attempted trafficking by manufacturing methamphetamine.¹ As his sole enumeration of error on appeal, Franks challenges the sufficiency of the evidence to support his conviction. Long also asserts that the evidence was insufficient to support his conviction and further argues that the trial court erred in failing to give his requested charges on the lesser included offenses of possession of a drug-related object and unlawful possession of pseudoephedrine.

Viewed in the light most favorable to the verdict,² the evidence demonstrates that on or about June 4, 2010, Detective John Helton of the Dalton Police Department was investigating a report that someone had shoplifted rat poison from a grocery store. That investigation led Helton to the home of Franks' brother, Allen. Franks arrived while Helton was talking with his brother. The Franks brothers denied any knowledge of the shoplifting incident, but Franks indicated that Long might have been involved.

Franks then escorted Helton to the nearby house where Franks said Long and he lived. Helton said that Franks hurried to get ahead of him and appeared a little fidgety and nervous. Helton also noticed that Franks appeared to have some difficulty walking, and he later discovered that Franks had recently suffered a burn on his lower left side. The injury was severe enough to require a trip to the emergency room. Franks said he was burned when a Coleman camping lantern exploded. When they got close to the house, Franks yelled to Long that he was there and he had the police with him. After speaking with Helton about the reported shoplifting, Long gave Helton consent to search the house.

Long did not own the house, but the owner allowed Long to stay there. He had been living there for about a year. The house was in poor condition. With the exception of one bedroom that was enclosed with paneling, the house had few finished interior walls, and it had no electricity or running water. The living room contained what appeared to be a fire pit where someone had cut a hole in the floor and placed rocks in it. Long had boarded up all the doors except one, which could be locked from the inside.

During the search, Helton observed a number of items in the bedroom that he believed related to a methamphetamine manufacturing lab (“meth lab”), including blister packs containing what appeared to be pseudoephedrine tablets, syringes, bottles containing tri-level liquids, jars and canisters with tubing running out of them, and an open container with a “mashed-up” substance and a potato masher inside. Helton then placed Long and Franks under arrest and notified the drug unit.

Detectives Dwayne Holmes and Shannon Ramsey of the Whitfield County Sheriff's Office narcotics unit assisted the Dalton Police Department in investigating the reported meth lab at Long's house. Both had special training and experience in the detection and dismantling of meth labs. When they arrived at the house, the officers noticed a chemical odor that, based upon their training and experience, they associated with a meth lab. After obtaining a search warrant, several officers on the scene, including Holmes, donned protective clothing and respirators and began removing items from the house, while Ramsey stayed outside to catalogue the items seized.

The detectives removed a number of items from the bedroom and living room area of the home that they found to be consistent with items typically found in meth labs. These items included:

- bi-level and tri-level liquids in various bottles and jars, including Mason jars; ³ - containers of a red liquid that appeared to be red phosphorous, a chemical used in the manufacture of methamphetamine; ⁴

- a plastic bowl containing a metal potato masher, strainer, and a reddish paste substance suspected of being red phosphorous;

- plastic bottles cut in half and containing a white powdery substance;

- a bug sprayer altered to act as a gas generator;

- canisters of Coleman fuel, which is used as a solvent to remove ephedrine from pseudoephedrine⁵ during the manufacturing process;

- coffee filters, which are often used to filter ephedrine from the soaking solution;

- several spoons with powdery residue, one of which tested positive for methamphetamine; and

- a hollowed-out light bulb, taken from a jacket pocket in the bedroom, fashioned as a smoking device with residue that tested positive for methamphetamine, as well as ephedrine and/or pseudoephedrine.

The State tendered Ray Grossman, Chief of Police of Cohutta, Georgia, as an expert in methamphetamine production and methamphetamine-related products, and the court qualified him without objection. Grossman testified that he had worked approximately 200 red phosphorous meth labs. And during special training he received from the Drug Enforcement Administration and the State, he was required to manufacture methamphetamine using the red phosphorous method. He identified the items seized as components of “an average meth lab,” and he said that these items could not be anything else but a meth lab. He explained in detail how each of the components were used in the manufacturing process. Grossman testified from his review of the crime scene photographs that the meth lab at Long's house was “inactive,” i.e., the methamphetamine had already been “cooked off” leaving only “remnants.” Grossman stated that in his experience it was not unusual to find components of a lab dispersed after the manufacturing process is complete. Moreover, Grossman stated that electricity was not required for a meth lab; a portable heating device, such as a Coleman camp stove, would be sufficient. He also said that it was not unusual for the smell of methamphetamine to linger after the manufacturing process is complete.

Case No. A13A0118

1. Franks argues that this evidence was insufficient to support his conviction for attempted trafficking by manufacturing methamphetamine. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court. As long as there is some evidence, even though contradicted, to support each necessary element of the [S]tate's case, this Court will uphold the jury's verdict.

(Citations omitted.) Gentry v. State, 281 Ga.App. 315, 319(2), 635 S.E.2d 782 (2006).

Under OCGA § 16–13–31(f), “[a]ny person who knowingly manufactures methamphetamine, ... or any mixture containing ... methamphetamine ... in violation of this article commits the felony offense of trafficking methamphetamine.” The term “manufacture” is defined in pertinent part as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis....” OCGA § 16–13–21(15). And “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16–4–1.

Franks argues that the evidence was insufficient to prove that they lived at the house and argues that their “mere presence” is not sufficient to support his conviction. He also asserts that the evidence did not establish beyond a reasonable doubt that he took any substantial step toward manufacturing methamphetamine, as required for a conviction for criminal attempt.

“Mere presence, without proof of participation, is insufficient to support a conviction.” (Citation omitted.) Sherrer v. State, 289 Ga.App. 156, 159(2), 656 S.E.2d 258 (2008). Rather, the State was required to show that Franks had the power and intent to exercise control over the meth lab components. Id.

[E]vidence merely showing that contraband was found in the residence occupied by the defendant is insufficient to support a conviction if it affirmatively appears from the evidence that other persons had equal access to the contraband and therefore an equal opportunity to commit the offense.... Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.

(Citations omitted; emphasis in original.) Howard v. State, 291 Ga.App. 386, 388, 662 S.E.2d 203 (2008).

Moreover, “[a]n act constituting a ‘substantial step’ is one done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation.” (Citation and punctuation omitted.) Taylor v. State, 320 Ga.App. 596(1), 740 S.E.2d 327 (2013). Nevertheless, it cannot “accurately be said that no preparations can amount to an attempt. The question, then, is one of degree, depending upon the circumstances of each case.” (Citation omitted.) Rainey v. State, 319 Ga.App. 858, 859(1)(a), 738 S.E.2d 685 (2013).

Although someone else owned the house and no evidence existed that either Long or Franks had signed a formal lease, the owner testified that he allowed Long to stay there, and if Long let other people stay there, “that was his business.” Franks told Helton that he lived in the house with Long, and...