Stone v. State

• Decision Date: 16 April 2002
• Docket Number: No. CR 01-1239.,CR 01-1239.
• Citation: 348 Ark. 661,74 S.W.3d 591
• Parties: Lloyd STONE, Jr., v. STATE of Arkansas.
• Court: Arkansas Supreme Court

74 S.W.3d 591

348 Ark. 661

Lloyd STONE, Jr., v. STATE of Arkansas.

No. CR 01-1239.

Supreme Court of Arkansas.

April 16, 2002.

T.B. Patterson, Jr., Hot Springs, for appellant.

Mark Pryor, Att'y Gen., by Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

Appellant Lloyd Stone, Jr., appeals his judgment of conviction for manufacture of methamphetamine and his sentence of twenty-seven years. He raises six points on appeal. We reverse on the refusal of the trial court to suppress the evidence seized, and we remand for further proceedings.

For several months, Garland County Sheriff's Department Investigators Corey DeArmon and Danny Wilson had been monitoring Stone's home because they suspected that he was involved in the manufacture or sale of methamphetamine. On the night of September 17, 1998, at approximately 8:30 p.m., the two investigators knocked on the door of Stone's home. They had not obtained a search warrant but had decided to use the "knock and talk" procedure for obtaining a consent to search. When he answered the door, Officer DeArmon asked Stone if they could search the premises. After Stone answered the door, the officers could smell a strong odor which they associated with the manufacture of methamphetamine.

Stone refused to give his consent to search. Instead, he stated that he wanted to call his attorney, Hugh Alexander. He turned around and walked back into the house. When he did so, at least one police officer followed him.¹ It is a matter of some dispute as to why the police officer entered Stone's home. Stone called his attorney, and the police officer listened to his conversation. At one point, Stone put Officer DeArmon on the telephone with Hugh Alexander. What was said in that conversation is also matter of factual dispute. Officer DeArmon testified at the suppression hearing that Stone's attorney advised Stone to consent to the search. Alexander disputed this assertion, noting that most of his law practice was criminal defense work and that he would not advise a client to consent to a warrantless search of that client's home. Alexander maintained that Officer DeArmon falsely told him that he and Officer Wilson had already found evidence of the manufacture of methamphetamine taking place in the home. Thus, Alexander claimed, he thought his client was about to be arrested, and he told Officer DeArmon not to question him until he could make it out to the house.

Another area of dispute is whether, after the telephone call, Stone consented to the police officers' search of his home. Stone maintained that he gave no consent. Officer DeArmon, on the other hand, stated that not only did Stone give his consent, he also escorted the police officers around his house and showed them the contraband. All parties agree that Stone was not offered a consent-to-search form. The two police officers found ingredients for making methamphetamine as well as containers they suspected to be involved in the manufacture of methamphetamine. They arrested Stone for attempted manufacture of methamphetamine, and he was later charged with that offense.

Stone moved to suppress the physical evidence seized at his house on the night in question. He argued that he did not give his consent for the officers to enter his home and that he did not give his consent to search the premises. Following a hearing on the motion to suppress, the trial court denied the motion. On April 3, 2000, the State amended the criminal information to change the charged offense from attempted manufacture, a Class A felony, to manufacture, a Class Y felony. The matter proceeded to a jury trial on May 23, 2000. Stone was convicted of manufacture of methamphetamine and sentenced as stated above.

Stone appealed his conviction to the Arkansas Court of Appeals. In an unpublished opinion, the Court of Appeals reversed Stone's conviction under Fourth Amendment principles governing consent to search. See Stone v. State, 2001 WL 1298894 (Ark.App. Oct. 24, 2001). The Court of Appeals held specifically that Stone gave no consent for Officer DeArmon's initial entry into his home. The State petitioned for rehearing and argued that any taint of this illegal entry was attenuated by the subsequent consent to search that Officer DeArmon maintained Stone gave him after consulting with his attorney. That petition was denied. The State petitioned for review from the Court of Appeals' decision, and we granted that petition.

We review this case as if the appeal from the judgment of conviction was originally filed in this court. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).

I. Sufficiency of the Evidence

For double jeopardy reasons, we first consider Stone's claim that there was insufficient evidence to support his conviction. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). Though we are excluding the methamphetamine seized in this case, the proper disposition is to reverse and remand for the possibility of a new trial. See Crisco v. State, 328 Ark. 388, 393, 943 S.W.2d 582, 585 (1997) (supplemental opinion); Nard v. State, 304 Ark. 159, 163-A, 801 S.W.2d 634, 637 (1991) (supplemental opinion). Accordingly, the issue of whether sufficient evidence was presented by the State to support the conviction must be considered first, as lack of sufficient evidence would result in a reversal and dismissal of the case. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000); Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Haynes v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). Further, this court will not second-guess credibility determinations made by the factfinder. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996).

In challenging the sufficiency of the evidence supporting his conviction, Stone specifically argues that the State did not prove that he was manufacturing methamphetamine for anyone's use but his own. He points to the fact that under Ark.Code Ann. § 5-64-101(m), "manufacture" must be manufacture for a use other than one's personal consumption. See Ark.Code Ann. § 5-64-101(m) (Repl.1997). That section reads:

(m) "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance.... (Emphasis added.)

Thus, "preparation or compounding" of an illegal substance for one's own use does not constitute "manufacture."

This Court has considered personal-use arguments in the context of the manufacture of methamphetamine in prior cases. See, e.g., Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). In Owens, this Court rejected a personal-use argument and adopted the rationale of the appellate court in a sister state:

The plain meaning of the exception is to avoid making an individual liable for the felony of manufacturing a controlled substance in the situation where, being already in possession of a controlled substance, he makes it ready for use (i.e., rolling marijuana into cigarettes for smoking) or combines it with other ingredients for use (i.e., making the so-called "Alice B. Toklas" brownies containing marijuana).

Owens, 325 Ark. at 124, 926 S.W.2d at 658 (quoting State v. Childers, 41 N.C.App. 729, 255 S.E.2d 654 (1979)). The Owens decision distinguished between the "preparation or compounding" of a controlled substance for personal use such as the rolling of a marijuana cigarette and the creation of such a substance. Owens, 325 Ark. at 124, 926 S.W.2d at 658 (citing State v. County Court for Columbia County, 82 Wis.2d 401, 263 N.W.2d 162 (1978); People v. Pearson, 157 Mich.App. 68, 403 N.W.2d 498 (1987)).

Here, the State produced sufficient evidence that Stone was indeed manufacturing methamphetamine by means of the necessary ingredients and required apparatus. The personal-use exception does not apply, and Stone's sufficiency argument is without merit.

Stone, however, makes an alternative sufficiency argument. He claims that the State failed to prove when any manufacture of methamphetamine took place. The State correctly points out that this argument is made for the first time on appeal. Accordingly, this court will not address it. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).

We affirm the trial court on the sufficiency point.

II. Suppression

Stone's central contention in this appeal is that the search of his home was illegal because he did not give valid consent to enter. Thus, any items seized such as the products used to manufacture methamphetamine constituted the fruit of the poisonous tree and should be suppressed. See Wong Sun v....