Cluck v. State

226 S.W.3d 780

Alan Ray CLUCK v. STATE of Arkansas.

No. CR 05-677.

Supreme Court of Arkansas.

February 2, 2006.

Knutson Law Firm, by: Gregg A. Knutson, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

Appellant Alan Ray Cluck appeals his felony conviction for possession of drug paraphernalia with intent to manufacture methamphetamine. The jury sentenced Cluck as a habitual offender to a term of fifteen years' imprisonment. Cluck raises four points on appeal. We affirm.

On July 8, 2003, after obtaining information that Cluck had purchased iodine from a local food store, Officer Will Dawson of the 12th and the 21st Judicial Drug Task Force decided to make contact with Cluck. Cluck's parole officer, Heather Douglas, and another police officer, Suzanne Bobbitt, accompanied Officer Dawson. When they did not find Cluck at his home, they located him at his brother's house nearby, where Cluck's car was parked. When Officer Dawson asked Cluck what the iodine was for, Cluck responded that he had gotten it for a friend. Officer Douglas searched Cluck's car and found a bottle of hydrogen peroxide and a bottle of alcohol, both of which Cluck immediately claimed belonged to him. The three police officers, along with Cluck, then traveled to Cluck's residence. Officer Dawson testified that Cluck gave consent for the officers to search his residence and any outbuildings. The officers recovered several items associated with the production of methamphetamine from Cluck's residence and outbuilding.

Cluck was charged with possession of drug paraphernalia with intent to manufacture methamphetamine, a Class B felony, and found guilty and sentenced. He appealed to the court of appeals, and his judgment of conviction was reversed. See Cluck v. State, 91 Ark.App. 220, 209 S.W.3d 428 (2005). We granted the State's petition for review. When we grant review, we consider the appeal as if it was originally filed in this court. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002).

I. Sufficiency of the Evidence

Cluck contends as one of his points on appeal that the circuit court erred when it denied his motion for a directed verdict. Because this issue implicates Cluck's right to be free from double jeopardy, we will consider it first. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005).

Cluck claims that the State's proof only shows the presence of common household items. He maintains that no evidence was produced showing that he intended to use the items to manufacture methamphetamine. Additionally, he points out that several ingredients necessary to produce methamphetamine were not present, and no methamphetamine was found at his residence.

Cluck also relies on Gilmore v. State, 79 Ark.App. 303, 87 S.W.3d 805 (2002), for the proposition that a person should not be deprived of his liberty on mere suspicion or conjecture. According to Cluck, the State produced only circumstantial evidence to show that he used the items found at his house and in his car to manufacture methamphetamine. Cluck goes on to explain that all the witnesses at trial described legitimate uses for the items found. Cluck finally makes the point that the prior convictions were remote in time and insufficient to show intent, as they only gave rise to suspicion or conjecture that Cluck might have had possession of the items with the intent to manufacture methamphetamine.

Our standard of review for a sufficiency challenge is as follows:

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. 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 resorting to speculation or conjecture. Id.

Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Whether the evidence excludes every other hypothesis is left to the jury to decide. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). The credibility of witnesses is an issue for the jury and not the court. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

Tillman v. State, 364 Ark. 143, 146, 217 S.W.3d 773, 775 (2005).

We agree with the State that the evidence presented at trial was sufficient to support Cluck's conviction. Officer Dawson testified that he identified Cluck as the man who had purchased iodine, an ingredient used to manufacture methamphetamine, from one of the stores that he monitored and that he could not determine that Cluck was legally using the iodine.¹

Officer Dawson further testified that he, along with two other police officers, made contact with Cluck and questioned him regarding the iodine. Officer Dawson stated that Cluck responded that he had purchased the iodine for a friend. In addition to finding a container of hydrogen peroxide and isopropyl alcohol in Cluck's vehicle, the officers discovered other items used to manufacture methamphetamine at Cluck's residence. An empty can of toluene was found in his garage. In his kitchen, the officers discovered Red Devil lye, salt, isopropyl alcohol, drain cleaner, and muriatic acid. The officers also found Equate allergy sinus pills, Dollar General cold and allergy pills, PVC gloves, a piece of tubing, and a syringe. Officer Dawson concluded that all the listed items were of a type used to manufacture methamphetamine.

A second witness, Mitch Carolan, a criminal investigator for the Arkansas State Police who was trained in the detection of the processes used to manufacture methamphetamine, testified that based on his training and experience, the items found at Cluck's residence appeared to be those used to manufacture methamphetamine. Officer Heather Douglas further testified that she was a parole officer and that Cluck was on parole for conviction of conspiracy to manufacture methamphetamine and for possession with intent to deliver methamphetamine.

The apposite section of the criminal code under which Cluck was charged reads: "[i]t is unlawful for any person to ... possess ... drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to ... manufacture ... a controlled substance[.]" Ark.Code Ann. § 5-64-403(c)(2)(A) (Supp.2001). Drug paraphernalia is defined by statute as "all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in ... manufacturing, ... a controlled substance in violation of sub-chapters 1-6 of this chapter[.]" Ark.Code Ann. § 5-64-101(v) (Repl.1997). Under § 5-64-101(v), in order to determine whether an object is drug paraphernalia, courts are directed to consider, "in addition to all other logically relevant factors, the following: ... (2) Prior convictions, if any, of an owner, or of anyone in control of the object, under state or federal law relating to any controlled substance; ... (14) Expert testimony concerning its use[.]" Id.

The jury had before it evidence of the items found at Cluck's residence and in his vehicle, but it was also informed of Cluck's iodine purchase and of Cluck's prior convictions relating to a controlled substance (methamphetamine) in addition to the expert testimony concerning how the items found in Cluck's possession are used to manufacture methamphetamine. A defendant's criminal intent may be inferred from circumstantial evidence, and circumstantial evidence may be used to support a conviction so long as it is consistent with a defendant's guilt. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). This evidence easily supports Cluck's conviction.

As a final point, Cluck's argument that the evidence was insufficient because the police officers did not find all the ingredients necessary to manufacture methamphetamine has no merit. Neither this statute nor this court's prior case law require that all the ingredients necessary to manufacture methamphetamine be found in a defendant's possession in order for that defendant to be charged and convicted for committing this crime.

We affirm on this point.

II. Parole Officer

Cluck next urges that the circuit court erred when it allowed the State to introduce evidence that Officer Heather Douglas was Cluck's parole officer for prior convictions of conspiracy to manufacture methamphetamine and possession of methamphetamine with intent to deliver, as these facts had minimal independent relevance and the probative value did not substantially outweigh the danger of unfair prejudice. He explains that the court allowed the State to introduce this evidence in response to his counsel's general questions during cross-examination of Officer Dawson about how the items found in Cluck's possession were everyday household items and might be legally used. This was error, he contends.

Cluck further maintains that the only probative value of the evidence of his prior convictions was to show that he previously had been convicted of similar crimes and not that he intended to manufacture methamphetamine. He asserts that the evidence of prior crimes was not independently relevant because it only showed that he had been convicted of two earlier crimes. For these reasons, he seeks (a) a determination that the circuit court...