Cherry v. State

95 S.W.3d 5, 80 Ark. App. 222, 2003 Ark. App. LEXIS 19
CourtCourt of Appeals of Arkansas
DecidedJanuary 8, 2003
DocketCA CR 02-226
StatusPublished
Cited by19 cases

This text of 95 S.W.3d 5 (Cherry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherry v. State, 95 S.W.3d 5, 80 Ark. App. 222, 2003 Ark. App. LEXIS 19 (Ark. Ct. App. 2003).

Opinion

Karen R. Baker, Judge.

A Drew County jury convicted appellant, Robert Earl Cherry, of manufacturing methamphetamine, simultaneous possession of drugs and firearms, possession of drug paraphernalia with intent to manufacture methamphetamine, possession of anhydrous ammonia in an unlawful container, and possession of ephedrine and pseudoephedrine with intent to manufacture. He was sentenced to a total of forty years’ imprisonment in the Arkansas Department of Correction. None of Mr. Cherry’s arguments have merit, and we accordingly affirm.

Facts

On July 6, 2000, investigators for the Arkansas State Police, the Tenth Judicial District Drug Task Force and the Drew County Sheriffs Department executed a search warrant at Mr. Cherry’s residence, including several outbuildings on his property. They found the following items during the search: an improperly labeled small compressed-gas cylinder with a flaky blue residue around the valve fitting which indicated it had contained anhydrous ammonia; glass jars with methanol, guaifenesin, ephedrine, pseudoephedrine, and methamphetamine residues; scales, soft-drink bottle caps with tubing running through them; thirteen cans of engine starting fluid; denatured alcohol; a loaded Ruger 9 mm handgun; $3,060 found behind a piece of paneling; a radio scanner with a list of law enforcement frequencies; a radio frequency detector that would emit a sound that would indicate to the user that a person in the area was wearing a wire; thirty-seven pages of recipes for manufacturing methamphetamine; coffee filters with residue; and multiple packages of pseudoephedrine pills.

After the execution of the warrant, Mr. Cherry was taken into custody. Arkansas State Police Criminal Investigator Buck McKelvey and Special Agent in charge of the Tenth Judicial District’s Drug Task Force, Brent Reaves, conducted a custodial interrogation of Mr. Cherry. Both officers testified that the appellant read, understood, and signed a Miranda-ñghts waiver form indicating that he was aware of his rights, wished to waive those rights, and would voluntarily make a statement. At the time, Mr. Cherry was a forty-two-year-old, self-employed mechanic and a high school graduate. He never asked for an attorney. In his statement, Mr. Cherry admitted to using and selling methamphetamine and identified his most recent use of methamphetamine as the night before, admitted getting the anhydrous ammonia from a farmer’s tank, and buying the chemicals from Wal-Mart. Iinvestigator McKelvey testified that, although Mr. Cherry said he had ingested methamphetamine the night before, he did not appear to be intoxicated at the time of the interview.

Sufficiency of the Evidence

A motion for directed verdict is a challenge to the sufficiency of the evidence. We address this issue first because the Double Jeopardy Clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. E.g. Coon v. State, 76 Ark. App. 250, 253, 65 S.W.3d 889, 890 (2001). The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict. Hatley v. State, 68 Ark. App. 209, 213, 5 S.W.3d 86, 88 (1999). Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Wortham v. State, 65 Ark. App. 81, 82, 985 S.W.2d 329, 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.3d 830, 832 (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).

Here, Mr. Cherry argues that there was insufficient evidence of manufacturing methamphetamine because there was no evidence of lithium and that lithium was necessary to the manufacturing process. This argument is without merit. The State’s expert in forensic chemistry testified that Mr. Cherry .was using the lithium/sodium method of manufacturing methamphetamine. However, he also testified that during the manufacturing process, when using this method, lithium acts as a catalyst and is consumed during the process. He concluded that there would be no lithium left to be found or tested. This testimony sufficiently explained the absence of lithium upon which Mr. Cherry based his argument.

Mr. Cherry also argues that there was insufficient evidence of simultaneous possession of drugs and firearms because he was arrested outside his residence and there were only trace amounts of methamphetamine. This argument is similarly without merit. A person commits the offense of simultaneous possession of drugs and firearms if he commits a felony violation of Ark. Code Ann. § 5-64-401, or attempts, solicits, or conspires to commit a felony violation of § 5-64-401 while in possession of a firearm. See Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1997). It is a felony violation of Arkansas Code Annotated § 5-64-401 to possess, manufacture, or attempt to manufacture methamphetamine. Ark. Code Ann. § 5-64-401 (a)(l)(i) (Repl. 1997). The statute does not require that methamphetamine actually be produced from the manufacturing process to sustain a conviction because a felony violation of the statute includes attempted manufacture of methamphetamine. Harris v. State, 73 Ark. App. 185, 187, 44 S.W.2d 347, 349 (2001).

In this case, a loaded weapon was found in Mr. Cherry’s kitchen near items used to manufacture methamphetamine. To sustain a conviction, the State must show that the accused possessed a firearm and a nexus between the firearm and the drugs. Manning v. State, 330 Ark. 699, 703, 956 S.W.2d 184, 187 (1997). “For use” as a firearm includes the term “readily accessible for use.” Rabb v. State, 72 Ark. App. 396, 403, 39 S.W.3d 11, 16-17 (2001). The accused does not actually have to be present where the drugs and firearms were found because his possession may be constructive. Darrough v. State, 330 Ark. 808, 811, 957 S.W.2d 707, 708 (1997). The State did not have to show that Mr. Cherry physically possessed the handgun in order to sustain a conviction for its possession if the gun’s location was such that it was under Mr. Cherry’s dominion and control. See id. The gun in Mr. Cherry’s kitchen next to items used to manufacture methamphetamine sufficiently meets that burden.

Mr. Cherry also questions the sufficiency of the evidence regarding his possession of anhydrous ammonia in an unlawful container. His argument emphasizes that prosecution witnesses testified that it was possible that chemicals and/or gases other than anhydrous ammonia could have produced the bluish tarnish found around the brass fittings of the gas cylinder found at Mr. Cherry’s residence, but the State’s expert witness also testified that the discoloration of the fittings was consistent with it having contained anhydrous ammonia.

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Bluebook (online)
95 S.W.3d 5, 80 Ark. App. 222, 2003 Ark. App. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-state-arkctapp-2003.