Wallace v. State

• Decision Date: 29 June 2012
• Docket Number: CR-10-1464
• Parties: Emmett Grady Wallace v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Emmett Grady Wallace v. State of Alabama

CR-10-1464

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2011-2012

Dated: June 29, 2012

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Montgomery Circuit Court

(CC-10-1706)

PER CURIAM.

The appellant, Emmett Grady Wallace, was convicted of the chemical endangerment of a child, a violation of § 26-15-3.2(A), Ala. Code 1975, and the unlawful manufacture of a controlled substance, i.e., methamphetamine, a violation of §13A-12-218, Ala. Code 1975. He was sentenced to 10 years' imprisonment on each conviction, the sentences to be served concurrently. This appeal followed.

I.

Wallace first argues that the State failed to present sufficient evidence to convict him of manufacturing methamphetamine because, he says, it failed to prove that the substance was in fact methamphetamine or that he possessed any precursor chemical as defined in § 20-2-181, Ala. Code 1975. Specifically, he argues that the evidence was insufficient because the State failed to present the testimony of a forensic or scientific expert that the substance was methamphetamine or that he possessed a precursor chemical.

At the close of the State's case, Wallace moved for a judgment of acquittal and argued: "In order to establish that you made meth, you have to have a scientific determination that meth was present at that place or on these substances. That requires the Department of Forensic Sciences to do some test or some other scientific agency to determine [the] presence of meth." (R. 292.) The circuit court denied the motion. (R. 299.)

Section 13A-12-218, Ala. Code 1975, provides, in relevant part:

"(a) A person commits the crime of unlawful manufacture of a controlled substance in the first degree if he or she violates Section 13A-12-217 and two or more of the following conditions occurred in conjunction with that violation:

". . . .

"(4) A clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.

". . . .

"(6) A clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.

"(7) A person under the age of 17 was present during the manufacturing process."

Section 13A-12-217, Ala. Code 1975, provides, in pertinent part:

"(a) A person commits the crime of unlawful manufacture of a controlled substance in the second degree if, except as otherwise authorized in state or federal law, he or she does any of the following:

"(1) Manufactures a controlled substance enumerated in Schedule I to V, inclusive.

"(2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance."

Section 20-2-181(d), Ala. Code 1975, addresses precursor chemicals and states:

"Until the Board of Pharmacy adopts a rule designating listed precursor chemicals, as required by subsection (a), the following chemicals or substances are hereby deemed listed precursor chemicals:

"(1) Acetic anhydride;

"(2) Anthranilic acid and its salts;

"(3) Benzyl cyanide;

"(4) Ephedrine, its salts, optical isomers, and salts of optical isomers;

"(5) Ergonovine and its salts;

"(6) Ergotamine and its salts;

"(7) Hydriodic acid;

"(8) Isosafrol;

"(9) Methylamine;

"(10) N-Acetylanthranilic acid and its salts;

"(11) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;

"(12) Phenylacetic acid and its salts;

"(13) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;

"(14) Piperidine and its salts;"(15) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;

"(16) Safrole; and

"(17) 3,4-Methylenedioxyphenyl-2-propanone."

The indictment charged Wallace as follows:

"Emmett Grady Wallace . . . whose name is otherwise unknown to the Grand Jury, did knowingly manufacture a controlled substance in Schedules I to V, to-wit: METHAMPHETAMINE, and/or possess precursor substances, in any amount, with the intent to unlawfully manufacture a controlled substance, as determined in Section 20-2-181 of the Code of Alabama 1975, and in conjunction therewith, did also establish a clandestine laboratory operation which was to take place or did take place within 500 feet of a residence, place of business, church, or school, to-wit: a residence; and/or established a clandestine laboratory operation for the production of controlled substances, to-wit: METHAMPHETAMINE; and/or a person under the age of 17, [E.T.] was present during the manufacturing process, in violation of section 13A-12-218 of the Code of Alabama against the peace and dignity of the State of Alabama."

When reviewing whether the State has presented sufficient evidence to support a conviction, we keep in mind the following:

"[T]he evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So. 2d 877 (Ala. 1979) . Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So. 2d 280(Ala. Cr. App.), cert. denied, 387 So. 2d 283 (Ala. 1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So. 2d 1020 (Ala. Cr. App. 1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So. 2d 199 (Ala. Cr. App. 1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So. 2d 843 (1969); Willis v. State. A verdict of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust. Duncan v. State, 436 So. 2d 883 (Ala. Cr. App 1983) cert denied 464 U S 1047 104 S Ct 720 79 L.Ed.2d 182 (1984)- Johnson v. 'state '378 So. 2d 1164 (Ala. Cr. App.), cert. quashed, 37 8 So.2d 1173 (Ala. 1979)."

Breckenridge v. State, 628 So. 2d 1012, 1018—19 (Ala. Crim. App. 19 93).

"'Circumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant's guilt. Ward v. State, 557 So. 2d 848 (Ala. Cr. App. 1990). In reviewing a convictionbased in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So. 2d 877 (Ala. 1979).' "

Lockhart v. State, 715 So. 2d 895, 899 (Ala. Crim. App. 1997), quoting Ward v. State, 610 So. 2d 1190, 1191-92 (Ala. Crim. App. 19 92).

The State's evidence tended to show that on June 30, 2010, Officer Christopher Owenby of the Eclectic Police Department was investigating a theft when he learned that property from the theft had been pawned at a pawnshop in Montgomery. Officer Owenby obtained the assistance of Sgt. C.J. Coughlin and Sgt. J.L. Walker, detectives with the Montgomery Police Department, to investigate the name and address on the pawn ticket. The pawn ticket had been signed by M.T. and listed a Plum Street address in Montgomery.¹

Officer Owenby testified that when the officers arrived at the Plum Street address, he went to the back of the house and approached an open window. Wallace was standing at the open window and Officer Owenby asked him to answer the door. The house was occupied by Wallace, M.T., and M.T.'s six-year old daughter, E.T. M.T. told police that the stolen property was no longer in the house and she gave oral and written consent for the officers to search the residence.

Sgt. Coughlin testified that he found a box in a closet in a bedroom that M.T. said was occupied by her and Wallace. The box, he said, had smoke emanating from it. Inside the box was a duffel bag, and inside the duffel bag was a plastic drink bottle with fluid in it and metal strips. The substance, he said, was bubbling, and he believed that it was hazardous. At that time, Sgt. Coughlin testified, he followed protocol, cleared the house, and called the narcotics division. Sgt. Coughlin further testified that there was a thick white smoke throughout the house that had a chemical smell and that the child, E.T., was walking around the house.

Detective W.T. Grant of the Montgomery Police Department testified that Wallace made a statement to him in regard to what had happened at Plum Street. Wallace told him that he had lived at that residence for five years; Detective Grant said that Wallace first referred to M.T. as his wife and that Wallace later called M.T. his girlfriend. Wallace told Detective Grant that he, M.T., and E.T., lived in the house.

Detective Benjamin Schlemmer, a narcotics officer with the Montgomery Police Department, testified that he was called to the house on Plum...