Amanda Ellen O'Callaghan was indicted for, and convicted of, unlawful manufacture of a controlled substance in the first degree, a violation of § 13A-12-218, Ala. Code 1975.
The evidence adduced at trial indicated the following. Brian Cochran, a patrol officer with the Warrior Police Department, testified that at approximately 11:30 p.m. on April 8, 2003, he was patrolling the northbound section of Interstate 65 located within the Warrior city limits and that this area is located within the Birmingham Division of Jefferson County. Officer Cochran testified that he was at mile marker 280, which was in a construction zone, when he saw a blue and silver GMC 1500 pickup truck traveling 65 miles per hour in a 55-mile-per-hour construction zone; that he noticed that the pickup truck did not have a rearview mirror on the inside of the vehicle and that it had a cracked windshield; that he began to follow the pickup truck and noticed that it was weaving within its lane; that he did not activate his lights and attempt to pull over the pickup truck until mile marker 282 because, he said, mile marker 282 is a safer area in which to execute a traffic stop on that portion of the interstate; and that, although the driver pulled the pickup truck into the emergency lane and turned on the truck's hazard lights, the driver continued to travel approximately one mile before stopping the pickup truck. Officer Cochran also testified that Alabama Plastics, a manufacturing company that operates 24 hours a day, 7 days a week, was located within 200 feet of the interstate when he initially observed the pickup truck at mile marker 280 on Interstate 65 North.
Officer Cochran stated that for his safety, he made a passenger-side approach to the pickup truck, tapped on the window and requested that the driver roll down the passenger-side window. The driver indicated that the window would not roll down, and the driver told the passenger to open the door. Officer Cochran testified that when the passenger-side door opened, he "was immediately overwhelmed with the strong chemical odor of ether emitting from the vehicle" (R. 21) and that he "explained the reason for the stop to the driver and requested driver's license, proof of registration and insurance." (R. 23.) Officer Cochran learned that the driver was William Harold Lamb and that the passenger was Lamb's wife, Amanda O'Callaghan.
Officer Cochran stated that both occupants of the pickup truck appeared very nervous. Specifically, he testified that O'Callaghan, seated in the passenger's seat, was "staring straight ahead" (R. 24); that she had a small dog sitting in her lap and "she was stroking [the dog's] head very rapidly and very hard" (R. 24); and that when he jokingly asked her if the dog was an attack dog, she did not respond but "continued to stare straight ahead and rapidly stroke the dog's head." (R. 25.) Officer Cochran stated that as he issued Lamb a warning citation "for vision obstruction, no rearview mirror and improper lane change for the weaving across the roadway" (R. 26), Lamb explained that he had been driving all day so he was sleepy and tired. Officer Cochran returned Lamb's documents to him and told him that he was free to leave. Officer Cochran then asked Lamb if he could ask him some questions, and Lamb said that he could. Officer Cochran stated that during the course of this conversation, he requested permission to search the pickup truck and Lamb consented to a search of the vehicle.
Officer Cochran testified that the search of the "back floorboard" of the pickup truck revealed two jars that contained a clear liquid that had the odor of ether; that he placed both Lamb and O'Callaghan under arrest for "a meth production lab in
Officer Henderson stated that the Occupational Safety and Health Administration classifies meth labs as hazardous and contaminated sites and that he contacted a hazardous material ("HAZMAT") crew to assist in cleaning up the materials recovered from the pickup truck. (R. 30-31, 116-17.) Officer Cochran also testified that they had to close "a portion of the interstate there for safety reasons." (R. 30.) Officer Henderson testified that the lithium strips used in the production of methamphetamine are dangerous because, he said, "[i]f lithium contacts with any moisture including the air, it will ignite." (R. 121-22.)
Officer Cochran testified that the following items were recovered during the search of the pickup truck on April 8, 2003: inside the truck—the two jars with clear liquid that he initially had observed, one of which had "what appeared to be ephedrine pills, crushed ephedrine pills in the bottom" (R. 31); "coffee filters with residue" (R. 38);
(R. 38); and in the bed of the truck—a propane tank; "three fuel burners like a camping fuel burner type of stove thing" (R. 40); "a one-gallon can of a Liquid Fire drain opener" (R. 40); "[r]ubber tubing and some more Ziploc [brand plastic] bags with an unknown residue in them" (R. 40); and
(R. 40.) Officer Cochran stated that in addition to the items described above, the makeup bag found inside the pickup truck contained "[m]akeup and hair brushes and personal-type stuff that a female would probably use" (R. 39); that this was the only makeup bag found in the truck; and that when he asked her about the makeup bag, O'Callaghan told him that it was her bag.
Dan Matteo, a forensic drug chemist at DFS, testified that Det. Archer delivered State's Exhibits 19, 20, and 21 to DFS on April 9, 2003, and that he analyzed the contents of those exhibits between July 23, 2003, and August 1, 2003. Matteo stated that his analysis of those exhibits revealed that the crushed tablets contained in State's Exhibit 19 was ephedrine, which is a precursor substance (R. 99); that the residue on State's Exhibit 20 (the aluminum foil) was methamphetamine (R. 101); and that State's Exhibit 21 (the coffee filters) contained methamphetamine residue. (R. 103.) Matteo stated that while ephedrine is not a controlled substance like pseudoephedrine, ephedrine is very similar to pseudoephedrine and it is a precursor substance. (R. 98-99.) Matteo testified that in his opinion, ephedrine or pseudoephedrine is "a great precursor" because, he said, "it's so similar to methamphetamine" and "it's got everything you need." (R. 104-05.) Matteo also testified that coffee filters, a drain opener, anhydrous ammonia, a hot plate or fuel burner, and lithium are all items commonly used in the production of methamphetamine. (R. 105-08.)
Pursuant to Rule 404(b), Ala.R.Evid., the State also presented evidence regarding O'Callaghan's subsequent arrest for unlawful manufacture of a controlled substance. Greg Carr, a narcotics and violent crime investigator with the 24th Judicial Circuit Drug Task Force, testified that he is responsible for investigating crimes associated with illegal narcotic activity and that at approximately 10:00 p.m. on May 1, 2003, he was called to a residence located at 141½ 14th Avenue Southwest in Reform, Alabama, to investigate possible illegal narcotic activity. He stated that when he arrived, seven people were inside this residence—Amanda O'Callaghan, Joshua O'Callaghan, Ricky Biers, Damon Mixon, Kenneth Jones, a juvenile by the name of Julie, and an eight-week-old infant. Inv. Carr testified that they were given consent to search the residence and that during the search the officers recovered approximately a gram of methamphetamine from a cigarette carton. He stated that during the search, Amanda O'Callaghan was sitting on the couch and that when she was removed from the couch they discovered that she had been sitting on a Marlboro brand cigarette carton and that this cigarette carton contained approximately a gram of methamphetamine. (R. 148.) During the search, they also discovered several boxes of pseudoephedrine cold medicine in the bathroom closet and two bottles of "Heet," which contains methanol,
Section 13A-12-218, Ala.Code 1975, states:
Section 13A-12-217, Ala.Code 1975, states:
Section 13A-1-2(3), Ala.Code 1975, defines the term "clandestine laboratory operation" as any of the following:
O'Callaghan first contends that § 13A-12-218, Ala.Code 1975, is "unconstitutionally void for vagueness" because, she argues, "the statute fails to state whether a clandestine laboratory must be intended to operate in the county where the arrest and prosecution occurred." (O'Callaghan's brief at p. 18.) Specifically, she argues:
(O'Callaghan's brief at p. 15; emphasis added).
Vaughn v. State, 880 So.2d 1178, 1194-96 (Ala.Crim.App.2003).
Although § 13A-12-218 does not specifically address venue, § 15-2-2, Ala.Code 1975, states that "[u]nless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed." A person of ordinary intelligence could understand that the venue for a violation of § 13A-12-218 is in the county where the clandestine laboratory operation took place and where the defendant possessed a precursor substance with the intent to manufacture a controlled substance. In the present case, the evidence showed that O'Callaghan was involved in transporting the chemicals, supplies, and equipment necessary for the manufacture of methamphetamine on Interstate 65, which runs through Jefferson County, and that she possessed ephedrine, a precursor substance. (R. 99.) As previously noted, one of the definitions of "clandestine laboratory operation" is the "[t]ransportation . . . of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances." § 13A-1-2(3)b. Thus, we do not find § 13A-12-218 unconstitutionally void for vagueness.
O'Callaghan next contends that "the trial court committed reversible error when it ruled that venue is not a jury question and instructed the jury that it did not have to find that the alleged `lab' had to be intended for use in Jefferson County." (O'Callaghan's brief at p. 22.)
During its deliberations, the jury sent the trial court several questions. One of these questions was: "To convict in Jefferson [County] does the meth lab intent to set up have to be in Jefferson County?" (R. 268.) The trial court heard arguments from the parties regarding this question posed by the jury. The State's position was that "the transporting of the chemicals has to be within Jefferson County" but that "where you set [an operational meth lab] up does not have to take place here" in Jefferson County. (R. 271.) O'Callaghan's position was that "in order to be in violation of the law if they are looking at where a meth lab was to be set up, it's going to have to be established somehow that it had to be set up in Jefferson County." (R. 268-69.) After hearing the parties' positions, the trial court stated:
It appears that O'Callaghan's argument is based on an erroneous interpretation of the law—that an operational "meth lab" must actually be set up in Jefferson County or that there be the intent to set up an operational "meth lab" in Jefferson County for a person to be prosecuted and convicted in Jefferson County under § 13A-12-218. However, this interpretation ignores the fact that one of the definitions of a "clandestine laboratory operation" is the "[t]ransportation . . . of chemicals, supplies, or equipment for the unlawful manufacture
In light of the foregoing, we find that the trial court correctly answered the jury's question in the negative.
O'Callaghan contends that the trial court erred when it denied her motion for a judgment of acquittal because, she says, the State failed to prove that "the alleged clandestine laboratory operation was to take place, or did take place, within 500 feet of a residence, place of business, church, or school" and that "only one precursor material was found." (O'Callaghan's brief at p. 24.) Specifically, O'Callaghan argues:
(O'Callaghan's brief at p. 25.)
However, this argument again ignores the fact that one of the definitions of a "clandestine laboratory operation" is the "[t]ransportation . . . of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances." § 13A-1-2(3)b. In the present case, the evidence presented at trial showed that O'Callaghan was involved in transporting the chemicals, supplies, and equipment necessary for the manufacture of methamphetamine on Interstate 65, which runs through Jefferson County. As previously noted, Officer Cochran testified that Alabama Plastics, a manufacturing company that operates 24 hours a day, 7 days a week, was located within 200 feet of the interstate when he initially observed the pickup truck at mile marker 280 on Interstate 65 North. Thus, there was sufficient evidence presented to establish that there was a clandestine laboratory operation in Jefferson County within 500 feet of a business. Therefore, the State did not have to present evidence proving either that O'Callaghan set up an operational "meth lab" in Jefferson County or that she intended to set up an operational "meth lab" in Jefferson County in order to obtain a conviction of O'Callaghan under § 13A-12-218.
O'Callaghan also argues that the State did not present sufficient evidence to obtain a conviction because, she says, the State presented evidence that only one precursor substance was found in the pickup truck while § 13A-12-217(a)(2), Ala. Code 1975, plainly states that the defendant must possess "precursor substances." (Emphasis added.) She argues that "[i]f the legislature had intended to allow the discovery of a single item to be sufficient, then the statute would read `material' as
Additionally, before the legislature's passage of § 13A-12-217(a)(2) in 2001, § 20-2-190(b), Ala.Code 1975,
(Emphasis added.) There is no indication that the legislature, in the face of a growing methamphetamine epidemic at the time of the enactment of § 13A-12-217 in 2001, intended to relax the threshold and require the possession of more than one precursor substance used in the manufacture of methamphetamine in order to establish that a person has committed the crime of unlawful manufacture of a controlled substance.
Because the State presented evidence indicating that O'Callaghan was involved in transporting the chemicals, supplies, and equipment necessary for the manufacture of methamphetamine within 500 feet of a business and that O'Callaghan was in possession of a precursor substance, the trial court properly denied her motion for a judgment of acquittal.
O'Callaghan also contends that the trial court erred when it overruled her objection to Inv. Carr's testimony on Rule 404(b) grounds because, she says, the State did not disclose this evidence before trial even though she had requested in her discovery motion that the State provide any and all information concerning her prior criminal record, including, but not limited to, arrests, convictions, periods of incarceration, and present probationary or parole status.
Before the testimony of Inv. Carr—who testified at trial regarding O'Callaghan's subsequent arrest on May 1, 2003, for the unlawful manufacture of a controlled substance in the first degree—O'Callaghan objected and requested that Inv. Carr not be allowed to testify on the grounds that she had not received pretrial disclosure under Rule 404(b), Ala.R.Evid., of the State's intent to use this evidence. Rule 404(b), Ala.R.Evid., states:
O'Callaghan argued at trial, as she does on appeal, that in her discovery motion filed with the trial court she made the following request:
(C. 23), and that this request was, in effect, a request for Rule 404(b) information. (R. 136-37, O'Callaghan's brief at p. 29.) The trial court disagreed that this was a request for Rule 404(b) evidence, and it allowed Officer Carr to testify at trial. (R. 137.)
On appeal, O'Callaghan makes the following argument:
(O'Callaghan's brief at pp. 30-31.) However, this argument misconstrues the trial court's ruling on this objection.
At trial, the following exchange occurred between O'Callaghan's attorney and the trial court:
(R. 137.) It is clear that the basis for the trial court's ruling was not that a request for Rule 404(b) evidence could not be contained in a discovery motion, but that O'Callaghan's request in her discovery motion was not a request for Rule 404(b) evidence. In Ex parte Davis, 875 So.2d 276 (Ala.2003), the Alabama Supreme Court stated:
875 So.2d at 277 (emphasis added).
In Huffman v. State, 706 So.2d 808 (Ala. Crim.App.1997), this Court determined that evidence of Huffman's conviction for third-degree theft was properly admitted based, in part, on a finding that Huffman "did not make a specific pretrial request for the state to provide notice of any prior convictions that it intended to introduce in evidence at trial." 706 So.2d at 814. In the present case, as in Huffman, O'Callaghan did not make a specific pretrial request for Rule 404(b) material. Moreover, O'Callaghan's request was for information regarding her prior criminal record; however, the Rule 404(b) evidence introduced by the State concerned O'Callaghan's arrest subsequent to the present crime. Clearly then, O'Callaghan's request did not cover the evidence introduced by the State. Thus, the trial court correctly allowed the State to present the testimony of Officer Carr.
Based on the foregoing, we affirm O'Callaghan's conviction for unlawful manufacture of a controlled substance in the first degree. However, we must remand this case for the trial court to set aside that part of its order imposing a $1,000 fine pursuant to the Demand Reduction Assessment Act, § 13A-12-281(a), Ala. Code 1975, which provides:
This section does not authorize an additional penalty for persons convicted of violating § 13A-12-218, as O'Callaghan was. Therefore, although we affirm O'Callaghan's conviction, we remand this case for the trial court to set aside its imposition of the $1,000 fine pursuant to § 13A-12-281. Due return shall be filed with this Court within 21 days of the date of the opinion.
AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS AS TO SENTENCING.
McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.