Lueken v. State

• Decision Date: 17 November 2004
• Docket Number: No. CA CR 04-00428.,CA CR 04-00428.
• Citation: 198 S.W.3d 547
• Parties: Geoffrey Chris LUEKEN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

198 S.W.3d 547

Geoffrey Chris LUEKEN, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 04-00428.

Court of Appeals of Arkansas, Division III.

November 17, 2004.

The Jesse Law Firm, P.L.C., by: Mark Alan Jesse, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Brent P. Gasper, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Judge.

Appellant, Geoffrey Lueken, appeals from his conviction by a Pulaski County jury of manufacturing methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, possession of drug paraphernalia, and maintaining a drug premises. He was sentenced to 120 months' imprisonment in the Arkansas Department of Correction. He has four points on appeal.¹ First, he argues that when all evidence is viewed in the light most favorable to the State, the evidence was insufficient to support his conviction for manufacturing methamphetamine. Second, he argues that when all evidence is viewed in the light most favorable to the State under a joint occupancy/constructive possession argument, the evidence was insufficient to support the conviction for possession of paraphernalia with intent to manufacture methamphetamine. Third, appellant argues that the evidence was insufficient to support his conviction for maintaining a drug premises when the evidence demonstrated that contraband belonged to a joint occupant of the residence who had an equal right to control the premises. Fourth, appellant argues that the trial court erred in refusing to admit a certified copy of the co-defendant's judgment and conviction order, showing he had pled guilty to manufacturing methamphetamine under a reverse Rule 404(b) argument, as such was an exculpatory explanation for the paraphernalia found on the premises. We affirm.

On May 27, 2003, officers of the Little Rock Police Department executed a search warrant at the home of appellant and his roommate, Chris Southall. Upon the officers' arrival at the home, appellant was discovered outside working on a vehicle. Officer Russ Littleton testified that a security pat-down was conducted on appellant, and a cigarette package containing a clear smoking device with a white residue and a small metal pipe was discovered in his right pants pocket. Appellant was taken into custody.

Officer Ken Blankenship testified that while Officer Littleton stayed outside with appellant, he and other officers made their way into the home. He testified that when he reached the porch of the home a strong chemical odor was detected. Appellant's roommate, Mr. Southall, was in the bathroom, and a woman was on the sofa near the television in the living room. Officer Blankenship searched the area upstairs, which was a loft area, where a computer and paperwork were kept. In the loft area, he found a chopper, used to chop ephedrine tablets, and a propane bottle. Officer Blankenship also was responsible for searching Mr. Southall's vehicle, which was parked outside. A search of his vehicle revealed numerous items of drug paraphernalia, including a pickle jar with a bilayer liquid with a cloudy sediment on the bottom, paper plates, syringes, a drain opener, rust remover, a coffee filter inside a plastic bag containing red sludge, a 200 mm flask with tape around the top, a glass jar, and a glass.

Officer Greg Siegler explained that once the officers entered the home, there was a door straight ahead of them that was closed. He could hear someone inside a bathroom. Officer Siegler knocked on the door and identified himself. He heard the toilet flush. He told the person to come out; however, he heard the toilet flush again. Soon the door opened, Mr. Southall exited the bathroom and was taken into custody. Officer Siegler also testified that the woman who was discovered on the sofa in the living room was also taken into custody. A search of the living room revealed three straws, a glass smoking pipe, and four small plastic bags, which were all found near the coffee table.

The search continued into the kitchen and laundry room area. Officer Blankenship testified that a very strong odor was emanating from the kitchen and laundry room area. When he entered the small laundry room, he noticed boxes that had iodine stains on them. He also noticed staining on the walls as well as rust stains in the area in general. On the laundry room shelves and around the room, he found a gallon can of hexane, a funnel, plastic tubing, a container of salt, and coffee filters. A turkey baster, a jar containing a bilayer liquid, coffee filters, stirring sticks, a fan, a plastic bottle with tubing attached, and rubbing alcohol were also found in the laundry room. In the trash can in the laundry room, tubing with stains on it and tissue paper with stains on it were discovered.

Officer Michael Terry conducted a search of the bathroom and the kitchen. Once Mr. Southall was removed from the bathroom, Officer Terry discovered one small glass container with a small amount of white powder on it. In the kitchen, he found a "baster-type" object, a glass jar with a white powder type residue, a container of Red Devil lye, and a homemade smoking device.

A search of the southwest bedroom, conducted by officer Steve Pledger, revealed several items of drug paraphernalia. He discovered pipes used to ingest or smoke methamphetamine, a watertight bong used to smoke marijuana, and plastic bags with residue. Officer Pledger also testified as to items discovered on the porch of the residence. There he found a can of acetone, a can of toluene, which he testified is a thinner used in the separation of a methamphetamine cook, and a can of Coleman camp fuel.

Chris Harrison of the state crime lab testified that of the fourteen items tested for residue at the lab, seven of them tested positive for methamphetamine. Of the remaining items tested, some of them had chemicals commonly used in the manufacturing process. In his opinion, manufacturing was occurring at the residence. Moreover, on appellant's person, officers found a small plastic packet containing a glass tube with a white residue on it and a small metal pipe. As to the amount of methamphetamine found on appellant, Harrison testified that there was just a small amount of residue. As a result, he did a methanol rinse and did not weigh it.

At the conclusion of the testimony, a jury in Pulaski County Circuit Court convicted appellant of manufacturing methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, possession of drug paraphernalia, and maintaining a drug premise. This appeal followed.

Sufficiency of the Evidence

Because each of appellant's first three arguments concerns the sufficiency of the evidence as to three of his convictions, we will address them together. Specifically, appellant argues that when all evidence is viewed in the light most favorable to the State, the evidence was insufficient to support each of his convictions for manufacturing methamphetamine, possession of paraphernalia with intent to manufacture methamphetamine, and maintaining a drug premise.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Cherry v. State, 80 Ark.App. 222, 95 S.W.3d 5 (2003). When reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the guilty verdict, considers only that evidence supporting the verdict, and affirms if substantial evidence supports the verdict. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict. Id. (citing Hatley v. State, 68 Ark.App. 209, 5 S.W.3d 86 (1999)). Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Id. (citing Wortham v. State, 65 Ark.App. 81, 985 S.W.2d 329 (1999)). Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Mace v. State, 328 Ark. 536, 539, 944 S.W.2d 830 (1997). The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001).

Arkansas Code Annotated section 5-64-401(a) (Supp.2003) states that it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. "Manufacture" means 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, or by a combination of extraction and chemical synthesis. Ark.Code Ann. § 5-64-101(m) (Repl.1997). Arkansas Code Annotated section 5-64-403(c)(1)(A)(i) (Supp. 2003) states that:

It is unlawful for any person to use, or to possess 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 in violation of subchapters 1-6 of this chapter.

Arkansas Code Annotated section 5-64-402(a)(3) (Repl.1997) states that:

It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, or other structure or place or premise, which is resorted to by persons for the purpose of using or obtaining these substances or which is used for keeping them in violation of subchapters 1-6 of this chapter.

In his brief, appellant argues that there was insufficient evidence to support his convictions under either a circumstantial case of constructive possession or a circumstantial case of accomplice liability. In Walley v. State, 353 Ark. 586, 595-96, 112 S.W.3d 349, 354 (2003), our supreme...