State v. Robertson

• Decision Date: 16 July 2008
• Docket Number: No. 2006-167.,2006-167.
• Citation: 988 So.2d 294
• Parties: STATE of Louisiana v. Timothy E. ROBERTSON.
• Court: Court of Appeal of Louisiana — District of US

988 So.2d 294

STATE of Louisiana v. Timothy E. ROBERTSON.

No. 2006-167.

Court of Appeal of Louisiana, Third Circuit.

July 16, 2008.

Rehearing Denied August 20, 2008.

James Patrick Lemoine, District Attorney-Parish of Grant, James D. White, Jr., Assistant District Attorney-Parish of Grant Colfax, LA for Plaintiff/Appellee-State of Louisiana.

Richard Emile de Vargas, Natchitoches, LA, for Defendant/Appellant-Timothy E. Robertson.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.

THIBODEAUX, Chief Judge.

Our original opinion¹ was affirmed in part and reversed in part by the Louisiana Supreme Court. The supreme court affirmed our decision to reverse the Defendant's conviction for "Creation or operation of a clandestine laboratory for the unlawful manufacture of CDS II, in violation of La.R.S. 40:983(A)(3); second offender, in violation of La.R.S. 40:982" because it constituted a non-crime. Louisiana Revised Statutes 40:982 is a post-conviction enhancement statute. It reversed our decision to invalidate the entire conviction and not merely the erroneous portion. The supreme court further concluded that the trial error of placing prior crimes in a bill of information was subject to a harmless error analysis and, in this case, the error was harmless. The supreme court later granted a rehearing for the "limited purpose of transferring this case to the Third Circuit Court of Appeal for their consideration of the assignments of error previously assigned by defendant to the court of appeal and pretermitted by the court of appeal." State v. Robertson, 06-1537 (La.1/16/08), 988 So.2d 166, 2008 WL 343131, (reh'g granted 3/14/08).

For the following reasons, we affirm the Defendant's conviction for the lesser-included offense of Creation or operation of a clandestine laboratory for the unlawful manufacture of CDS II, to-wit, Methamphetamine and remand to the trial court for sentencing.

I. ISSUES

Consistent with our Louisiana Supreme Court's remand instruction, we shall consider whether:

(1) the evidence presented at trial is insufficient to sustain a conviction for Creation or operation of a clandestine laboratory for the unlawful manufacture of CDS II, to-wit, Methamphetamine;

(2) the trial court erroneously denied Defendant's Motion to Suppress;

(3) the trial court erroneously allowed the introduction of "other crimes" evidence; and,

(4) the trial court erroneously allowed the State to introduce the transcript of Defendant's previous guilty plea after the State had closed its case in chief.

II.

LAW AND DISCUSSION

Insufficiency of the Evidence

Defendant contends the evidence presented at trial was insufficient to support his conviction in that there was no proof of intent. Specifically, he notes some components needed for the production of methamphetamine, namely, anhydrous ammonia, muriatic acid, and denatured alcohol, were not present at the residence. Additionally, Defendant points out that his fingerprints were not found on the seized items. Finally, Defendant argues there was no evidence proving he was in constructive possession of these items. A ruling that the evidence is insufficient would necessitate an acquittal; thus, we have addressed this assignment of error first pursuant to State v. Hearold, 603 So.2d 731 (La.1992).

In State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371, this court set forth the standard of review to be used by appellate courts in addressing a sufficiency review:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

Louisiana Revised Statutes 40:983 provides in pertinent part:

A. Creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance is any of the following:

(1) The purchase, sale, distribution, or possession of any material, compound, mixture, preparation, supplies, equipment, or structure with the intent that it be used for the unlawful manufacture of a controlled dangerous substance.

(2) The transportation or arranging for the transportation of any material, compound, mixture, preparation, supplies, or equipment with the intent that such material, compound, mixture, preparation, supplies, or equipment be used for the unlawful manufacture of a controlled dangerous substance.

(3) The distribution of any material, compound, mixture, preparation, equipment supplies, or products, which material, compound, mixture, preparation, equipment, supplies, or products have been used in, or produced by, the unlawful manufacture of a controlled dangerous substance.

(4) The disposal of any material, compound, mixture, preparation, equipment, supplies, products, or byproducts, which material, compound, mixture, preparation, equipment, supplies, products, or byproducts have been used in, or produced by, the unlawful manufacture of a controlled dangerous substance.

B. It shall be unlawful for any person to knowingly or intentionally create or operate a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance.

In our view, the State presented sufficient evidence to prove Defendant's guilt of the charge of creation or operation of a clandestine laboratory beyond a reasonable doubt. At trial, Defendant's probation and parole agent, Cole Gralap, testified that on June 29, 2004, he went to the residence of Nova Young, where Defendant was residing, for the purpose of administering a urine test. Officer Gralap asked Detective Todd Durham of the Grant Parish Sheriff's Department to accompany him for safety reasons. Officer Gralap testified he became suspicious on a prior visit to the home when he saw a padlock on Defendant's bedroom door and a fan blowing air out of the bedroom window.

While Officer Gralap was administering the urine test, he asked Detective Durham to check Defendant's room for weapons and contraband. In Defendant's bedroom, Durham located a coffee grinder, salt, a section of black hose, pipefittings with a brass valve, filters, a cook stove, a spoon, boxes of "labeled off pseudoephedrine boxes," Pyrex bowls, a couple of two liter plastic jugs, and a couple of pint jars, one containing eight lithium batteries soaking in a solution, and the other containing a brown substance thought to be drain cleaner. Additionally, in a metal box, Durham located labels of antihistamines and decongestants as well as a bag of crushed pseudoephedrine.² Found in the kitchen were a fire extinguisher that had contained anhydrous ammonia at one time and a bottle of professional drain cleaner. Finally, in Ms. Young's outside storage building, Detective Durham located two empty propane bottles. One was fitted with a plastic nozzle at the top, and the other had only a threaded hole which matched the pipe with the brass fitting found in the bedroom.

Deputy Brad Sudduth, who is certified in the investigation of methamphetamine labs, was contacted and asked to come to the residence. He testified that the "Nazi" method of manufacturing methamphetamine could be carried out with the items found in the residence, with the exception that a sufficient amount of anhydrous ammonia, muriatic acid, and denatured alcohol were needed. At the time the items were located in the residence, Defendant did not have a "working lab." However, the presence of the ground pseudoephedrine pills and the ingredients to make an HCO gas generator (with the exception of muriatic acid) made it appear to Sudduth that the manufacturing process had begun. According to Deputy Sudduth, the pseudoephedrine that was recovered could have made 45.24 grams "under the 60 percentile rate."³ This would have been worth approximately $4,500.00.

After the items were found in Defendant's room, Detective Durham advised Defendant of his rights, and Defendant initially denied ownership of the items, saying that the items were there when he moved in. However, Deputy Sudduth testified that after he advised Nova Young of her rights, Defendant admitted that the components of the methamphetamine lab were his and Nova was not involved.⁴

Nova Young testified at trial that Defendant stayed with her from April to June of 2004. Ms. Young testified that before Defendant moved into the spare bedroom, they cleaned everything, including the closet. With the exception of the safe, Ms. Young did not recall any of the items that were found in Defendant's bedroom being there at the time she and Defendant cleaned the room.

To show identity, motive, knowledge, and plan, the State introduced, through the testimony of Deputy Sudduth, evidence concerning a previous investigation of Defendant in April of 2002 for manufacturing methamphetamine. At that time, Defendant was found with "pill soak," the first stage of manufacturing methamphetamine, in his vehicle. In an interview with Deputy Sudduth, Defendant admitted it was his...