Crosswhite v. State

732 So. 2d 856, 1998 WL 909534
CourtMississippi Supreme Court
DecidedDecember 31, 1998
Docket97-KA-00148-SCT
StatusPublished
Cited by14 cases

This text of 732 So. 2d 856 (Crosswhite v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crosswhite v. State, 732 So. 2d 856, 1998 WL 909534 (Mich. 1998).

Opinion

732 So.2d 856 (1998)

Monte CROSSWHITE
v.
STATE of Mississippi.

No. 97-KA-00148-SCT.

Supreme Court of Mississippi.

December 31, 1998.
Rehearing Denied April 15, 1999.

*857 Jim Waide, Tupelo, Attorney for Appellant.

Office of the attorney general by Jean Smith Vaughan, Attorney for Appellee.

Before PITTMAN, P.J., and SMITH and MILLS, JJ.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On April 5, 1996, Monte Crosswhite was indicted in the Circuit Court of Clay County for the unlawful manufacture of methamphetamine, a Schedule II drug, in violation of Miss.Code Ann. §§ 41-29-139 and 41-29-115. Crosswhite was found guilty of manufacturing a controlled substance by a jury of his peers and was sentenced to pay a fine of five thousand dollars ($ 5,000.00) and serve a period of five (5) years in the custody of the MDOC. Crosswhite subsequently filed a motion for acquittal or a new trial which was denied by the Circuit Court on January 24, 1997. Aggrieved, Crosswhite raises three issues on appeal:

I. WHETHER THE ACT OF BOILING VICKS INHALERS CONSTITUTES THE CRIME OF MANUFACTURING A CONTROLLED SUBSTANCE PURSUANT TO MISS. CODE ANN. § § XX-XX-XXX AND XX-XX-XXX.
*858 II. WHETHER THE INTRODUCTION OF THE DEFENDANT'S PRIOR BAD ACTS AND SUBSEQUENT REFERENCE TO THESE ACTS DURING CLOSING ARGUMENT DENIED THE DEFENDANT A FAIR TRIAL.
III. WHETHER AN ENVELOPE ON WHICH THE INGREDIENTS USED TO MANUFACTURE METHAMPHETAMINE WERE WRITTEN WAS PROPERLY ADMITTED INTO EVIDENCE.

STATEMENT OF FACTS

¶ 2. Based upon knowledge of a previous sale of marijuana from the home of Summer Studdard, Mississippi Bureau of Narcotics officers obtained a warrant to search the Studdard home for marijuana and any drug contraband contained therein. At approximately 11:30 p.m. on September 22, 1995, officer Joe Huffman and Deputy Chief Bill Gibson executed the search warrant and gained entry into the house. Upon entry, Huffman immediately smelled an odor in the house which burned his eyes and throat. He then entered the kitchen and found Monty Crosswhite standing over the stove holding a pair of pliers. On the stove they found a white bowl containing a clear liquid. Huffman immediately placed handcuffs on Crosswhite. As Huffman looked around the kitchen, he noticed approximately fifty (50) empty Vicks Inhaler containers lying on the stove, counter top, and in the garbage can next to the stove. After the liquid cooled, Huffman poured it from the white bowl into a plastic bag and later transferred it into a glass jar to be sent to the Mississippi Crime Lab for analysis.

¶ 3. During trial, Sheriff Huffman testified that the combination of heat and water cause the inert ingredients in the Vicks Inhaler to bond with water. The cotton swabs found within the inhaler are then placed in the liquid mixture. When the water eventually evaporates, a concentrated form of methamphetamine is squeezed from the cotton swabs using pliers. The result of this process is the formation of a narcotic substance commonly referred to as "kitchen crank", "bathtub meth", or "stove-top meth."

¶ 4. Grady Downy, a forensic scientist employed by the Mississippi Crime Lab, testified concerning the results reached by the lab after testing the liquid seized at the Studdard home. Methamphetamine was found in both the seized liquid and the cotton swabs. Downy explained that the active ingredient contained in the Vicks Inhaler, l-desoxyephedrine, is a form of methamphetamine. Each inhaler contains fifty (50) milligrams of l-desoxyephedrine combined with other ingredients. He further explained that the amount of l-desoxyephedrine found in the Vicks Inhaler is not changed by the process of boiling the contents in water. Rather, the amount of methamphetamine is simply concentrated when the other ingredients contained in the inhaler evaporate along with the water. The fifty (50) milligrams of l-desoxyephedrine found in each inhaler remains in the cotton swab(s) and may then be extracted in a condensed form.

DISCUSSION OF THE ISSUES

I. L-DESOXYEPHEDRINE IS A FORM OF METHAMPHEAMINE AND AS SUCH IS A SCHEDULE II CONTROLLED SUBSTANCE, THE MANUFACTURE OF WHICH IS PROHIBITED BY STATUTE.

¶ 5. Although other state and federal courts have addressed the issue presented in the instant case, it now comes to Mississippi on first impression. After closely reviewing the position of other jurisdictions concerning this matter, we find the conclusion reached by other jurisdictions is proper. Therefore, it is our opinion that the lower court did not err in finding that the act of boiling Vicks Inhalers constitutes the illegal manufacture of a Schedule II controlled substance.

*859 ¶ 6. Mississippi Code Annotated Section 41-29-115(c)(Supp.1998) lists the following as Schedule II controlled substances: "[a]ny material, compound, mixture, or preparation which contains any quantity of the following substances: (1) Amphetamine, its salts, optical isomers, and salts of its optical isomers ..." Further, any sale, manufacture, or possession of a schedule II controlled substance is prohibited by Miss.Code Ann. § 41-29-139 (Supp.1998).

¶ 7. Crosswhite argues that the lower court was incorrect in labeling the act of boiling Vicks Inhalers as the manufacture of methamphetamine because l-desoxyephedrine is a form of methamphetamine which is exempt by statute in Mississippi. In support of his argument, he relies on Miss.Code Ann. § 41-29-122 (1993), which reads:

Any material, compound, mixture or preparation which contains any quantity of a controlled substance and is listed as an exempt substance in 21 C.F.R., section 1308.22, shall be exempted from the provisions of the Uniform Controlled Substances Law.

Section 1308.22 of the Code of Federal Regulations excludes certain nonnarcotic products from the controlled substance list and designates for each product a company name, trade name, controlled substance contained therein, and the specific quantity of the controlled substance which may lawfully be present in the product. Both the "Vicks Inhaler" and "l-desoxyephedrine" are specifically descheduled by 21 C.F.R. § 1308.22.

¶ 8. Since the form of methamphetamine in Vicks Inhalers, l-desoxyephedrine, is exempt from controlled substance status and no statute states that the act of boiling the inhalers in water removes the product from its exempt status, Crosswhite argues that finding him guilty of a crime which is not defined by statutory law violates his due process rights. However, Crosswhite's argument is flawed because the substance formed after boiling the contents of a Vicks Inhaler in water is quite dissimilar from the substance sold over the counter as the Vicks Inhaler.

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Cite This Page — Counsel Stack

Bluebook (online)
732 So. 2d 856, 1998 WL 909534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crosswhite-v-state-miss-1998.