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Cummings v. State

Court of Appeals of Georgia, Third Division

May 14, 2018

CUMMINGS
v.
THE STATE.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS, J.

          Bethel, Judge.

         Amanda Michelle Cummings appeals from the denial of her motion for a new trial following her conviction for manufacturing methamphetamine, trafficking methamphetamine, manufacturing methamphetamine in the presence of a child, and misdemeanor possession of marijuana. On appeal, she challenges the sufficiency of the evidence presented by the State, arguing that it failed to demonstrate her active participation in each of the crimes for which she was convicted. Cummings also argues that the trial court erred by sustaining the State's objection to her question of an expert witness regarding the process for manufacturing methamphetamine, which she claims went to the heart of her defense. She further argues that the trial court erred by admitting records of pseudoephedrine purchases because such records were more prejudicial than probative and because the admission of the records permitted the State to introduce character evidence without providing notice of its intent to do so under Rule 404 (b). Finally, Cummings argues that the trial court imposed a waiver of her Fourth Amendment rights during sentencing without her express consent and without determining that she was making a knowing, voluntary, and intelligent waiver of those rights. For the reasons set forth below, we affirm her convictions for manufacturing methamphetamine, trafficking methamphetamine, and manufacturing methamphetamine in the presence of a child. We reverse her conviction for possession of marijuana.

         On appeal, the defendant "is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict." Batten v. State, 295 Ga. 442, 443 (1) (761 S.E.2d 70) (2014) (citation omitted). So viewed, the evidence showed that the Columbia County Sheriff's Office (CCSO) became aware that methamphetamine was being produced at a certain residence. Through the use of an informant, CCSO conducted a controlled buy of methamphetamine from Cummings at that residence.

         Based on the controlled buy, CCSO obtained a search warrant for the residence and later conducted a search. CCSO found marijuana just outside one of the windows to the residence. Inside the residence's detached garage, the deputies found a burn barrel containing batteries that had been cut open with the lithium strips removed, along with burned ash. The deputies also found a coffee grinder which contained pseudoephedrine residue, a bottle of muriatic acid, two bottles of Coleman fluid, Drano crystals containing sodium hydroxide, and gas generator tubing. According to testimony at trial, each of these items are involved in or related to the production of methamphetamine. The deputies also located several items containing methamphetamine residue. The CCSO investigator who conducted the search of the residence testified that it appeared there had been a meth lab in the residence at some point and the accumulation of methamphetamine residue located on the items found could only have occurred through the production of methamphetamine. The investigator testified that he believed methamphetamine had recently been produced in the residence.

         The deputies also seized packing bags from the residence as well as a security camera that had been installed at the residence. The investigator who conducted the search testified that drug dealers commonly maintained home security systems and that packaging bags like those recovered were commonly used for drug distribution.

         Cummings lived at the residence where the controlled buy and seizure took place, although the residence was owned by her co-conspirator who also lived there. Cummings' daughter was six years old at the time. The daughter apparently lived with her grandparents several miles away but visited Cummings' residence as many as three times a week. The CCSO investigator testified that Cummings' daughter had access to most of the items recovered from the residence.

         The State also obtained and introduced certain records from the National Precursor Log Exchange (NPLEx) of pseudoephedrine purchases made by Cummings and the man with whom she shared the residence. Cummings objected to the admission of the NPLEx records under Rule 403, arguing that the records were more prejudicial than probative, given that the records indicated that Cummings last purchase of pseudoephedrine was eight months prior to the date her residence was searched. Cummings also argued that the records of purchases by other individuals were likewise more prejudicial to Cummings than probative of her guilt. The State countered that because its theory of the case was that Cummings was a party to a series of crimes, evidence of the conduct of co-conspirators was relevant to, and probative of, her guilt. The trial court overruled Cummings' objection to the introduction of these records.

         A jury found Cummings guilty on one count each of manufacturing methamphetamine, [1] trafficking methamphetamine, [2] manufacturing methamphetamine in the presence of a child, [3] and misdemeanor possession of marijuana.[4] The trial court sentenced her to 15 years imprisonment to be followed by seven years of probation. Among other conditions of her probation, Cummings waived her Fourth Amendment rights and agreed to submit to searches whenever requested by her probation officer or other law enforcement officers upon reasonable cause to believe that she was in violation of the law or the conditions of her probation.

         Cummings later moved for a new trial, raising the same errors enumerated in this appeal. The trial court denied the motion following a hearing, and this appeal followed.

         1. Cummings first argues that the State failed to present sufficient evidence upon which a rational jury could find her guilty beyond a reasonable doubt on each of the charges against her. We consider the sufficiency of the evidence presented on each charge in turn.

         (a) Cummings first challenges her conviction for manufacturing methamphetamine. OCGA § 16-13-30 (b) provides, in relevant part, that, "[e]xcept as authorized by [law], it is unlawful for any person to manufacture . . . any controlled substance." OCGA § 16-13-21 (4) defines "controlled substance" as "a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308." Methamphetamine is a Schedule II controlled substance. See OCGA § 16-13-26 (3) (B).

         In this case, through evidence collected during a search of the residence and expert testimony, the State presented evidence that methamphetamine had been manufactured in the residence Cummings shared with her co-conspirator. Given the large array of products involved in the production of methamphetamine, their proximity to each other in the residence, and the fact that methamphetamine was found throughout the residence, the jury heard sufficient evidence to allow it to conclude that it would have been virtually impossible for Cummings to have been unaware that methamphetamine was being produced there. See Gentry v. State, 281 Ga.App. 315, 320-21 (2) (a) (635 S.E.2d 782) (2006). Moreover, given the long history of purchases of pseudoephedrine by both Cummings and her co-conspirator, the jury could infer that they were purchasing precursor substances that were then being used to manufacture methamphetamine. Finally, the State presented evidence that police had observed Cummings sell methamphetamine to a confidential informant from the same residence where the methamphetamine was being produced. The State therefore presented sufficient evidence from which the jury could find that Cummings was guilty of this offense.

         (b) Cummings next challenges her conviction for trafficking methamphetamine. OCGA § 16-13-31 (f) (1) provides, in relevant part, that

any person who manufactures methamphetamine . . . or any mixture containing . . . methamphetamine . . . as described in Schedule II, in violation of this article commits the felony offense of trafficking methamphetamine . . . If the quantity of methamphetamine . . . or a mixture containing [methamphetamine] is less than 200 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $200, 000.00[.]

         As discussed above, the State presented sufficient evidence to support Cummings' conviction for manufacturing methamphetamine. The same evidence supports her conviction for trafficking methamphetamine, as she was charged under subsection (f), of OCGA § 16-13-31, which punishes the manufacture of any quantity of methamphetamine up to 200 grams. "Given the numerous items of evidence seized from [Cummings' residence] that were indicative of the clandestine manufacture of methamphetamine, as well as the samples of substances that tested positive for methamphetamine, sufficient evidence existed to support [Cummings'] conviction of trafficking methamphetamine pursuant to OCGA § 16-13-31(f)." Wesson v. State, 279 Ga.App. 428, 430 (1) (631 S.E.2d 451) (2006) (citation omitted).

         (c) Cummings next challenges her conviction for manufacturing methamphetamine in the presence of a child. OCGA § 16-5-73 (b) (1) provides that

any person who intentionally causes or permits a child to be present where any person is manufacturing methamphetamine or possessing a chemical substance with the intent to manufacture methamphetamine shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than two nor more than 15 years.

         A child is any individual who is under the age of 18. OCGA § 16-5-73 (a) (2). "Chemical substances" includes pseudoephedrine and other chemicals used in the manufacture of methamphetamine. OCGA § 16-5-73 (a) (1). The statute provides that intent to manufacture "means but is not limited to the intent to manufacture methamphetamine, which may be demonstrated by a chemical substance's usage, quantity, or manner or method of storage, including but not limited to storing it in ...


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