Stallard v. State

THIEME, J. Following a bench trial in the Circuit Court for Garrett County, Dana Russell Stallard, appellant, was convicted of manufacturing methamphetamine, possession of plastic bottles adapted for the production of methamphetamine, possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. He was sentenced to five years’ imprisonment for manufacturing methamphetamine, a consecutive two-year term for possession of plastic bottles adapted for the production of methamphetamine, and a consecutive four-year term for possession of methamphetamine. He was fined $500 ⁴⁰⁴ for possession of marijuana and fined $500 for possession of drug paraphernalia. Stallard appealed and presents two questions for our review, which we quote: 1.

Was the evidence insufficient to sustain Mr. Stallard’s convictions for manufacturing methamphetamine and for possession of plastic bottles adapted for the production of methamphetamine? 2. Is Mr. Stallard entitled to merger of the convictions and sentences for manufacturing methamphetamine and for possession of plastic bottles adapted for the production of methamphetamine? For the reasons to be discussed, we conclude that Stallard’s conviction for possession of plastic bottles adapted for the production of methamphetamine should have merged, for sentencing purposes, with the conviction for manufacturing methamphetamine. We otherwise affirm the judgment.

BACKGROUND On November 14, 2013, police officers assigned to the Garrett County Narcotics Task Force executed a search and seizure warrant at Stallard’s residence located on Morris Avenue in Friendsville. Maryland State Police Trooper Sid Bittinger testified that, when the warrant was executed about 9:56 a.m., Stallard, a woman, and a child were home at the residence. Prior to entering the premises, Trooper Bittinger asked Stallard whether there was “any methamphetamine cooking inside the residence.” Stallard responded that there was a “bottle underneath the kitchen table” and he advised the officer not to “tighten the lid on it” or it “might blow up and catch the house on fire.” The search of the premises revealed a number of items, including two plastic bottles containing a “white powder” substance; a pipe believed to be a “marijuana smoking device”; a pouch with various items (tweezers, a spoon, a “pen body,” a hypodermic syringe, and “suboxone strip”) containing suspected methamphetamine; a Coleman fuel container; a ⁴⁰⁵ Red Devil lye container; several “aluminum foil homemade smoking pipes”; a “silver metal grinder” which appeared to contain marijuana residue; “cold packs”; a “red plastic grinder”; a clear plastic bottle inside a plastic cup containing a liquid resembling “separated oil and water”; a clear plastic bottle “with a liquid inside, along with black lithium battery strips”; a bottle with a “muriatic acid” label; and a bottle of Claritin brand pills. Trooper Bittinger testified about a conversation he had with Stallard just after the search was completed in which Stallard related that he had “learned to cook methamphetamine” two or three weeks previously.

Stallard then went on to describe the process. He related that he had purchased the necessary items, including fuel oil, lye, lithium batteries, and Claritin pills (which may contain pseudoephedrine—an ingredient used in the manufacture of methamphetamine). Stallard explained that he used the “cold cook method” to manufacture the methamphetamine, which involved putting two cupfuls of lye, crushed Claritin pills, three-quarters of a cold pack containing nitrate, and some Coleman fuel into “plastic bottles.” He then removed the lithium strips from the batteries and added them to the mixture. Afterwards he shook the bottle until it swelled and then he “slowly let the air out” over a “one-hour time period.” At this stage, Stallard related that it was “very easy for the bottle to blow up or to catch on fire.” Once this phase was completed, Stallard said that he would filter what remained in the bottle into a mason jar.

He would then pour the liquid into a second bottle and add distilled water and muriatic acid. After that he would shake the bottle and turn it upside down and slowly loosen the cap. He would then “squeeze out the oil onto a special plate” and place the plate on a hot stove and let the liquid evaporate. The end result of the process was approximately six grams of methamphetamine.

Trooper Bittinger further testified that Stallard informed him that he injected the methamphetamine and also smoked it. Stallard knew it was dangerous to cook, but he said he was so addicted he could not stop. ⁴⁰⁶ Eileen Briley, a forensic examiner and chemist with the Maryland State Police, testified that she examined and tested some of the items recovered from Stallard’s home. She found residue of methamphetamine on (or in) various objects, including the pen body, metal spoon, tweezers, pouch, aluminum foil smoking device, and a straw. A bag containing plant material contained marijuana and marijuana residue was found on the metal grinder and in a smoking device.

Maryland State Trooper Pennie Kyle, an expert in the identification of methamphetamine and its production and manufacture, testified that the evidence recovered from Stal-lard’s home indicated that Stallard was involved in “a one-pot or a shake-and-bake type method of cooking methamphetamine.” This “easy” method required “three main ingredients,” ephedrine or pseudoephedrine, “some type of anhydrous ammonia” (such as that found in cold packs and mixed with lye), and “some kind of lithium metal” (such as that found in some batteries), as well as a solvent (with Coleman fuel being the most common one used). Trooper Kyle then explained the “cooking” process in some detail and further testified that the items found in Stallard’s home were consistent with the manufacture of methamphetamine. As noted, the court found Stallard guilty of manufacturing methamphetamine, possession of plastic bottles adapted for the production of methamphetamine, possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. DISCUSSION I. Sufficiency of the Evidence A. Manufacture of Methamphetamine Stallard asserts that the evidence was insufficient to convict him of manufacturing methamphetamine because the evidence established that he was “cooking” the substance for his personal use and, under the statute, the manufacture of a ⁴⁰⁷ controlled dangerous substance (“CDS”) for personal use is not a crime. 1 The issue is less one of sufficiency of the evidence, and more a question of statutory interpretation.

Section 5-603 of the Criminal Law Article of the Maryland Code (2012 Repl.Vol.) provides: Except as otherwise provided in this title, a person may not manufacture a controlled dangerous substance, or manufacture, distribute, or possess a machine, equipment, instrument, implement, device, or a combination of them that is adapted to produce a controlled dangerous substance under circumstances that reasonably indicate an intent to use it to produce, sell, or dispense a controlled dangerous substance in violation of this title. (Emphasis added.) The term “manufacture” is used in various provisions throughout Title 5 (“Controlled Dangerous Substances, Prescriptions, And Other Substances”) of the Criminal Law Article, and is defined as follows: (1) “Manufacture,” with respect to a controlled dangerous substance, means to produce, prepare, propagate, compound, convert, or process a controlled dangerous substance: (1) directly or indirectly by extraction from substances of natural origin; (ii) independently by chemical synthesis; or (in) by a combination of extraction and chemical synthesis. (2) “Manufacture” includes to package and repackage a controlled dangerous substance and label and relabel its containers. (3) “Mlanufacture” does not include: ⁴⁰⁸ (i) to prepare or compound a controlled dangerous substance by an individual for the individual’s own use; or (ii) to prepare, compound, package, or label a controlled dangerous substance: 1. by an authorized provider incidental to administering or dispensing a controlled dangerous substance in the course of professional practice; or 2. if the controlled dangerous substance is not for sale by an authorized provider, or by the authorized provider’s agent under the authorized provider’s supervision, for or incidental to research, teaching, or chemical analysis.

Crim. Law, § 5-101(p) (emphasis added). Stallard maintains that the so called “personal use exception” in the definition of manufacture “required the State to prove that the intent to manufacture methamphetamine was not for [his] personal use.” He claims, however, that “the undisputed evidence was that [he] was ‘cooking’ the purported methamphetamine for his own personal use” and there “was absolutely no suggestion of any intent to distribute the drug.” The State asserts that “the personal use exception is limited to the preparation or compounding of a controlled dangerous substance by an individual for the individual’s own use” and, as such, it does not encompass the “production, propagation, conversion, or processing” of a controlled dangerous substance for personal use. The State therefore maintains that, because “the personal use exception does not apply to the production of a controlled dangerous substance, the exception does not apply to Stallard’s conduct.” (Emphasis added.) “Given the dangers inherent in the manufacture or production of methamphetamine,” the State continues that “it would be absurd for the legislature to exclude from its definition of manufacture the production of methamphetamine simply because it was for personal use.” We are unaware of any reported Maryland case addressing this issue.

Accordingly, we turn to the often-cited rules of ⁴⁰⁹ statutory interpretation, which the Court of Appeals has summarized as follows: The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny. To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to the legislative intent ends ordinarily and we apply the statute as written without resort to other rules of construction.

We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with forced or subtle interpretations that limit or extend its application. We, however, do not read statutory language in a vacuum, nor do we confíne strictly our interpretation of a statute’s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope.

Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, ⁴¹⁰ its general purpose and relative rationality and legal effect of various competing constructions. In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical or incompatible with common sense. Gardner v. State, 420 Md. 1, 8-9 , 20 A.3d 801 (2011) (quoting State v. Johnson, 415 Md. 413, 421-422 , 2 A.3d 368 (2010)) (internal quotation marks and citations omitted).

Title 5 of the Criminal Law Article was enacted for the following purpose: (a) Findings.—The General Assembly finds that: (1) many of the substances listed in this title have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the people of the State; but (2) the illegal manufacture, distribution, possession, and administration of controlled dangerous substances have a substantial and detrimental effect on the health and general welfare of the people of the State. (b) Purpose.—(1) The purpose of this title is to establish a uniform law to control the manufacture, distribution, possession, and administration of controlled dangerous substances and related paraphernalia to: (1) ensure their availability for legitimate medical and scientific purposes; but (ii) prevent their abuse, which results in a serious health problem to the individual and represents a serious danger to the welfare of the people of the State. (2) This title shall be liberally construed to accomplish this purpose. Crim.

Law, § 5-102 (emphasis added). To implement the purposes stated above, the General Assembly enacted a statutory scheme which involved the registration and regulation of legitimate manufacturers, distributors, and dispensers of CDS and criminalized certain activities involving the unregistered or illicit manufacture, possession, ⁴¹¹ and distribution of CDS. See Crim. Law, §§ 5-301 et seq.

Accordingly, unless authorized by statute, it is a crime to possess or administer a controlled dangerous substance, Crim. Law, § 5-601; to distribute or dispense a controlled dangerous substance or possess it in a sufficient quantity to indicate under all circumstances an intent to distribute or dispense it, Crim. Law, § 5-602; and to manufacture a controlled dangerous substance, Crim. Law, § 5-603.

As noted, Stallard does not dispute that he was “cooking” a combination of substances for the purpose of creating methamphetamine. Nor does he dispute that methamphetamine is a controlled dangerous substance. But he maintains that because he was making it for his personal use it was not a criminal