Morgan v. State

2009 Ark. 257, 308 S.W.3d 147, 2009 Ark. LEXIS 200
CourtSupreme Court of Arkansas
DecidedMay 7, 2009
DocketCR 08-1330
StatusPublished
Cited by55 cases

This text of 2009 Ark. 257 (Morgan v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147, 2009 Ark. LEXIS 200 (Ark. 2009).

Opinion

PAUL E. DANIELSON, Justice.

| Appellant Johnny Elmo Morgan appeals the judgment of the Scott County Circuit Court convicting him of manufacturing methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, first-degree endangering the welfare of a minor, manu-factoring methamphetamine in the presence of a minor, and manufacturing methamphetamine near certain facilities. 1 He was sentenced to a total of 480 months’ imprisonment. On appeal, Morgan argues that the circuit court erred in denying his motion to suppress evidence and that the evidence was insufficient to support the convictions.

|2The Arkansas Court of Appeals issued an opinion finding that the evidence was insufficient to support the convictions. See Morgan v. State, CACR 08-306, 2008 WL 4821000 (Ark. Ct. App. Nov. 5, 2008). Accordingly, the court of appeals reversed and dismissed the case. The State then petitioned this court for review of the court of appeals’s decision. We granted the State’s petition for review pursuant to Arkansas Supreme Court Rule 1-2(e). When we grant review of a decision by the court of appeals, we review the case as though the appeal was originally filed in this court. See Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). Upon such review, we find no error and affirm the judgment of conviction.

The record reveals the following facts. On March 8, 2007, the district court issued a search warrant for the residence Morgan shared with Amy Smith. The warrant was issued based upon the affidavit of Sergeant Joey Deer, of the Scott County Sheriffs Office, explaining that he had reason to believe that Morgan’s residence was being used to conceal certain illegal property, namely, methamphetamine and/or drug paraphernalia. The affidavit further stated that a confidential informant, who had been proven credible by making at least two controlled-substance purchases that led to the confiscation/seizure of illegal narcotics, had made a controlled buy of methamphetamine within the last forty-eight hours from the Morgan residence.

At trial, Heath Tate, of the Fifteenth Judicial District Drug Task Force, testified that he executed the warrant at Morgan’s residence. When the warrant was executed, Morgan |awas not present, but Smith and another woman were standing outside the single-wide mobile home. Two children, both of whom were Morgan’s, and a fifteen- or sixteen-year-old juvenile were inside. Two more of Morgan’s children later arrived on a school bus.

Tate testified that there was an unlocked metal outbuilding approximately thirty to forty feet behind the trailer, as well as a “semi-trailer box.” Tate acted as the evidence custodian and, according to his log, the following evidence was found: a glass smoking pipe, a plastic bag, three corners of plastic bags, and a plastic bag containing a white powder substance, all located in the north bedroom of the residence; and two light bulbs, a rolled dollar bill, a straw, and a roll of plastic bags, all located on top of the refrigerator in the kitchen. He testified that the pipe could be used for smoking methamphetamine, that a controlled substance could be wrapped in a plastic bag corner, and that the light bulb had been hollowed out and could be used to smoke methamphetamine. Both light bulbs had discoloring which, as Tate testified, suggested they had been used to smoke methamphetamine. Tate also noted that the plastic bags could be used for delivery of methamphetamine and that the corners of the bags are also commonly utilized as a way to handle methamphetamine.

The evidence log also reflects that the police found the following evidence in the outbuilding: a camp stove; an “active” HCL generator; two one-gallon containers of muriatic acid; a one-gallon container of lighter fluid that was one-half full; coffee filters; two glass ^containers; a paper towel with red residue; a glass container holding one pound of salt; two glass containers holding unknown liquids; two empty charcoal starter containers; an empty salt package; plastic tubing; “ten generators made of plastic 20 oz. bottles”; a “green metal ammo can containing numerous matches”; and a plastic cardboard box containing seven pints of hydrogen peroxide. Tate testified that the “active” HCL generator, which had a tube coming out of it, was used in the manufacture of methamphetamine. Though listed as part of the items found in the outbuilding, Tate stated that the ten, twenty-ounce plastic bottles were found “outside the metal building just laying around the yard” between the residence and the building. Keith Vanravensway, of the Scott County Sheriffs Office, had participated in the search and stated that he found them scattered around the back yard in a twenty-five-to fifty-yard radius. Tate testified that the bottles had been used as generators because they contained salt inside, which is used to gas off the methamphetamine. Tate further testified that the striker plates had been removed from the matches, which is consistent with the manufacture of methamphetamine.

Sergeant Deer also assisted in the search of Morgan’s residence. Deer testified that there was a metal outbuilding, a trailer for an eighteen wheeler, an old swimming pool, thirty or forty salvage vehicles, and other buildings. He also stated that the back yard was “grown up.” According to Deer, there was no fence between the residence and the outbuilding.

| BPhillip Johnston, a forensic chemist with the Arkansas State Crime Laboratory, testified that the burned residue in the pipe was methamphetamine and dimethyl sulfone, which is a common cutting agent that is combined with a drug to increase the weight of the drug. He stated that the white powder in the plastic bag was 0.2199 grams of dimethyl sulfone. Johnston also tested the residue in the light bulb and the straw and found it was also methamphetamine and dimethyl sulfone. He found methamphetamine, phosphorus, and iodine residue on the stained paper towel and concluded that it was evidence of manufacturing methamphetamine. The unknown liquids found in a glass container did not contain any controlled substance, but one contained an acid, which is used in the manufacture of methamphetamine. Johnston testified that an HCL generator is a plastic bottle with salt and sulfuric acid mixed in the bottom. He further testified that a hole can be made in the cap of the bottle, through which a tube is inserted, and gas then exits the bottle through the tube. Johnston concluded that the plastic bottle found with the tubing might indicate the manufacture of methamphetamine and that a gas stove can be used in the manufacture of methamphetamine. He also testified that lighter fluid, muriatic acid, phosphorus, plastic tubing, charcoal fluid, salt, hydrogen peroxide, and iodine are used in the manufacture of methamphetamine. On cross-examination, Johnston acknowledged that he did not know when the manufacturing process would have taken place and that he could not determine how long ago someone used the HCL generator that had the tubing.

| r,Larry Garner, a five-year agent of the Fifteenth District Drug Task Force, testified that, upon investigation and consideration of the materials present, he concluded it was a methamphetamine lab. In his opinion, the ten HCL generators made from the plastic bottles were old and inactive, but that the one with the tubing was still active.

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Bluebook (online)
2009 Ark. 257, 308 S.W.3d 147, 2009 Ark. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-state-ark-2009.