Lawson v. State , CA CR07-1014 (Ark. App. 6/4/2008)

• Court: Arkansas Court of Appeals
• Writing for the Court: Robert J. Gladwin
• Decision Date: 04 June 2008
• Docket Number: CA CR07-1014
• Citation: Lawson v. State , CA CR07-1014 (Ark. App. 6/4/2008), CA CR07-1014 (Ark. App. Jun 04, 2008)
• Parties: Andy Dwayne LAWSON, Appellant, v. STATE of Arkansas, Appellees.

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Andy Dwayne LAWSON, Appellant, v. STATE of Arkansas, Appellees.

CA CR07-1014

Court of Appeals of Arkansas

Division I.

Opinion Delivered June 4, 2008.

Appeal from the Boone County Circuit Court, [No. CACR-2005-196-4], Honorable Gordon Webb, Judge.

Affirmed.

ROBERT J. GLADWIN, Judge.

Appellant Andy Lawson appeals his convictions from a Boone County jury on charges of manufacturing methamphetamine, with an enhancement for manufacturing methamphetamine in the presence of minors; possession of a firearm by certain persons; and simultaneous possession of drugs and firearms, for which he was sentenced to terms of fifteen years,¹ five years, and ten years, respectively, in the Arkansas Department of Correction. The sentences are to be served concurrently. On appeal appellant challenges the sufficiency of the evidence supporting each of his convictions. We affirm.

Facts

Law enforcement officers from the Boone County Sheriff's Department and 14th Judicial District Drug Task Force began investigating appellant, previously convicted of felony manslaughter in Oklahoma, in late October 2002, after receiving information from a local business that appellant had been purchasing certain precursors used to manufacture methamphetamine. Officers performed surveillance activities in and around appellant's mobile home residence and other businesses in an attempt to catch him buying additional precursors.

On March 17, 2004, officers were informed that appellant had purchased additional quantities of matches and Coleman fuel. A confidential informant working at a local Wal-Mart store observed appellant buying Coleman fuel and other solvents. In July 2005, a pet supply business in Alabama informed officers that appellant purchased significant quantities of pint bottles of seven-percent iodine. Investigator Greg Harris, coordinator for the 14th Judicial Drug Task Force, watched appellant's house after that call was received, and he reported back when the latest shipment of iodine was delivered. Appellant picked up the box and took it into the mobile home, after which officers obtained a search warrant.

Officers, including Investigator Bob King, executed the search warrant the same day, and while inventorying samples and collecting evidence for the Arkansas State Crime Lab, a Richardson's twenty-gauge single shot shotgun, a Ruger model 1022 semi-automatic rifle with a scope, and a Ruger P series nine-millimeter pistol, with two loaded clips, were discovered. The pistol was in the master bedroom dresser area, and the other two firearms were in a locked gun safe next to the back door. Detective Paul Woodruff also discovered on the top of the dresser drawer a glass pipe with a residue inside and some tin foil with residue, normally used for smoking methamphetamine.²

The search lasted several hours and included the search of a blue shed in the backyard. Detective Woodruff testified that there was a disabled and what he would consider a working methamphetamine lab there. Although no usable methamphetamine was recovered, officers inventoried and sampled numerous precursors, including: a total of 10.2 grams of pseudoephedrine from various pills, which exceeds the legal limit; bi-layer solution, with both layers containing methamphetamine according to lab results; a police scanner programmed to listen to the local police department; a baby monitor through which the living room of the mobile home could be monitored from the shed; a small torch (commonly used to smoke methamphetamine); two boxes of latex gloves, two small boxes of new digital scales; rock salt (commonly used after the bi-layer stage); a one-gallon can of paint thinner; a fan and air conditioner (used to circulate the air because of fumes given off in the manufacturing process); sixteen pints of seven-percent iodine (the strongest available for purchase by a citizen and too caustic to place on the skin of a human or animal); two empty Coleman fuel cans; a jar of strong acid; several small coin zip-lock type bags (typically used in the sale or delivery); an air purifying respirator and filters; two pyrex brand glass pie plates with residue; a hot plate (upon which the pie plates were sitting); a razor blade; bottles of rubbing alcohol; Naptha (solvent) acetone; a plastic graduated cup with markings; an Aquafina bottle containing bi-layer solution; laboratory type glassware equipment; a piece of paper with purple color indicating iodine crystals that have to be manufactured; thirteen receipts from Wal-Mart indicating purchases of various precursors; a partial bottle of Red Devil Lye; a partial bottle of muriatic acid (and an empty quart bottle). Officers did not find filter paper, which, although commonly are coffee filters, can be paper towels, toilet paper, or any kind of paper. There was testimony that usually filter paper is burned after it is used, and there was evidence of areas around appellant's residence where things had been burned.

Officers also discovered a small kiddie pool located some ten to fifteen feet from the blue shed and inflatable toys close by the pool. Officers found children's shoes and toys that had been shed or discarded between the shed and the pool. It is undisputed that appellant, his wife, and their two children, ages three and eight, live in the residence. Appellant's mother continued to live there part-time, sometimes up to three days per week, even after she married in September 2003, in order to help take care of the children. Appellant's wife testified that the kids use the pool almost every day.

The State filed a felony information on August 2, 2005, and an amended felony information on September 8, 2006. A jury trial was held on March 28, 2007. Appellant moved for a directed verdict on each count at the close of the State's case in chief, and the motion was denied. He renewed the motions at the close of all the evidence, and the renewed motions were also denied. The jury convicted appellant on all counts, and he was sentenced as previously set forth. A judgment and commitment order was filed on March 28, 2007, and appellant filed a timely notice of appeal on April 17, 2007. This appeal followed.

I. Sufficiency of the Evidence Supporting the Convictions

A. Preservation of Issues

We first consider whether this issue is preserved for appeal. Arkansas Rule of Criminal Procedure 33.1(a) provides that in a jury trial a motion for a directed verdict must be made at the close of the evidence offered by the prosecution and again at the close of all evidence. The rule further provides that the failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict. Ark. R. Crim. P. 33.1(c). Appellant moved for a directed verdict as to all charges at the close of the State's case in chief, and that motion was denied. He renewed the motion at the close of all the evidence, and the renewed motion was also denied. Therefore, as related solely to the timing requirements of Rule 33.1, his challenge to the sufficiency of the evidence is preserved for our review.

B. Standard of Review

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. We do not weigh witness credibility. See Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The jury is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Likewise, the reliability of an eyewitness is a question for the jury. Id. After a jury gives credence to a witness's testimony, it will not be disregarded unless it is so inherently improbable, or clearly unbelievable that reasonable minds could not differ. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). Additionally, a witness will not be discredited because his or her testimony is uncorroborated or because it has been impeached. Id.

C. Manufacturing Methamphetamine

Arkansas Code Annotated section 5-64-401(a)(1) provides that it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance, including the manufacturing of a controlled substance, methamphetamine. Appellant moved for a directed verdict on this charge, arguing that many of the ingredients and equipment necessary for manufacturing methamphetamine were not discovered during the search. He pointed out that no tubing, proper cooking dishes, coffee filters, phosphorus, hydrogen peroxide, HEET, pill soak, or HCL generator were found pursuant to the search. Likewise, officers found no customer list, price list, stash of cash, evidence of comings and goings, or anything else appellant contends that common sense tells us is usually associated with a methamphetamine manufacturing operation.

Appellant claims that the State's case rested for the most part on the existence of regular household goods found in the blue shed behind the mobile home. He explains that officers involved testified as to certain items necessary for manufacturing that were not discovered on the scene during the search. Investigator King testified that there were no remnants of lithium batteries, no hydrogen peroxide, no phosphorus, no anhydrous ammonia, and no usable methamphetamine on the premises. He further explained that the pyrex pie plates,...