ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-910

May 30, 2001

MARK LATTA APPEAL FROM GARLAND COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN H. WRIGHT,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury in Garland County found appellant, Mark Latta, guilty of manufacturing a controlled substance (methamphetamine), for which he was sentenced to a term of fifteen years in prison. On appeal, appellant contends that the trial court erred in denying his motion to suppress; that the trial court erred in failing to grant his motions for mistrial; and that the trial court erred by not giving a requested instruction. We find no error and affirm.

On March 8, 1999, police officers in Garland County received information that methamphetamine was being manufactured and sold from appellant's trailer. Officers Todd Sanders, Cory Dearmon, Brian Keck, Scotty Dodd, and Richard Norris went to appellant's home to investigate. The officers parked their vehicles at the end of the driveway and walked up to appellant's residence. They met appellant in the patio area toward the front of the trailer, and they remained in the driveway as they spoke to appellant. During their conversation, appellant asked them to leave, and he declined the officers' request for permission to search the premises. The officers did not leave, however, because they had observed several items sitting in plain view on the patio that they recognized as being used in the process of manufacturing methamphetamine. According to the officers, there was also a strong odor of chemicals emanating from the trailer that they also associated with methamphetamine production. The officers secured the area while they applied for a search warrant for the premises, which they obtained based on the information they had received, the items they had observed on the patio, and the odor they had detected.

On April 2, 1999, appellant's appointed counsel filed a motion to suppress, contending that the officers had violated his fourth amendment rights because they had no probable cause to come onto his property and because they had remained after they had beenasked to leave. Appellant also argued that the warrant was invalid as fruit of the poisonous tree. A hearing on the motion was held on April 26, wherein the above-mentioned officers related the foregoing events. A woman named Angela Musgrove, who was present at the time of the encounter, also testified. The trial court denied the motion to suppress in a letter opinion issued on May 5. The court stated:

The initial question is whether or not the officers were within the law while they were walking up the driveway to the Defendant's home. The test appears to be whether or not the Defendant had a reasonable expectation of privacy as to the area in question. Gaylord v. State, 1 Ark. App. 106, 613 S.W.2d 409 (1981). From a reading of that case, it appears that the officers were well within their rights to walk up what was obviously the normal and ordinarily used approach to the dwelling. There was some mention of a "No Trespassing" sign, but the testimony of the officers was that it was not visible to them. Additionally, there was no testimony that the Defendant made any concerted or continuing effort to demonstrate that there was an expec tation of privacy which extended to the bound aries of his property.

Once the officers were lawfully within sight of the chemicals which they recognized were ordinarily used in the manufacture of metham phetamine and also smelled a chemical odor which is consistent with the operation of a meth lab, there was sufficient cause to secure the area to prevent destruction of any evi dence and apply for a search warrant.

In late July, appellant retained the services of his present attorney, and trial was scheduled on January 11, 2000. On December 27, 1999, appellant filed another motion to suppress, asking the court to reconsider its previous decision. This motion included the allegation that there were at least six signs warning persons not to enter the property. The court held a hearing on this motion the day before trial. The officers who had testified at the previous hearing were not recalled. Appellant and his witnesses testified that, in addition to posting a number of warning signs, appellant had stretched two ropes across the driveway to restrict access to the property. A photograph was introduced that allegedly depicted the condition of the property on October 8. It showed a rope barrier and various signs reading "No Trespassing," "Keep Out," "Private Property," and "Beware of Dog." The court took the motion for reconsideration under advisement and asked appellant's counsel for his telephone number so that he might be advised of a decision.

Appellant first argues that the trial court erred by failing to suppress the evidence discovered by the officers. Appellant contends that the testimony offered at the supplemental hearing demonstrated that he had a reasonable expectation of privacy and that it was unlawful for the officers to approach his property. Wedo not address the merits of this contention because appellant has failed to show that he obtained a ruling on this issue.

In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). We will not review a matter on which the trial court has not ruled, and a ruling will not be presumed. Id. The burden of providing a record sufficient to demonstrate that reversible error occurred is upon the appellant. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); see also Watts v. State, 68 Ark. App. 47, 8 S.W.3d 563 (1999). Because the record contains no ruling on the supplemental motion to suppress, we must conclude that this point has not been preserved for appeal. See Evans v. State, 331 Ark. 240, 959 S.W.2d 745 (1998); McGhee v. State, supra; Watts v. State, supra.

As his second point on appeal, appellant argues that the trial court erred in denying his mistrial motions that were made when the State allegedly commented on his right to remain silent on two occasions. The granting of a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing trial. Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000). We do not reverse a trial court's decision denying a motion for mistrial absent an abuse of discretion or manifest prejudice to thecomplaining party. Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000).

Appellant first moved for a mistrial during voir dire when the prosecutor addressed the potential jurors saying, "Now, I think that you all have been here long enough to know that there's two sides to every case, but I don't have a client sitting here with me. Does that cause anybody a problem?" In his motion, appel lant's counsel argued that the remark was unfair because appellant had the right to remain silent and that the jury might think that there is another side to the case. We agree with the State that the comment did not infringe upon appellant's right to remain silent. There was no direct reference to the appellant or his decision to testify, nor was there any suggestion that the panel should draw any inferences in the event that appellant should choose not to testify. Neither do we think the comment left the impression that appellant was required to put on proof. It is clear that the prosecutor was only attempting to gauge whether jurors would be biased against the State because they would not be able to identify with the prosecutor's "client." We find no abuse of discretion in the trial court's ruling.

Appellant next moved for a mistrial during the prosecutor's closing argument when he referred to the State's evidence as being unrefuted. We conclude that a mistrial was not warranted. Aprosecutor may refer to the undisputed nature of the testimony when the State's evidence could have been disputed by evidence other than the testimony of the accused. Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997). See also Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995); Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990).

Appellant's last issue is that the trial court erred in refusing his requested instruction based on the "personal-use exception" found in the bracketed portion AMCI 2d 6405. Appellant argues that he was entitled to the instruction because the State failed to prove that he manufactured methamphetamine for any purpose other than his own use. In Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996), the supreme court rejected the argument that a person cannot be convicted of manufacturing methamphetamine if that substance is manufactured for the person's own use. The court found the following explanation of the exception persuasive:

The plain meaning of the exception is to avoid making an individual liable for the felony of manufacturing a controlled substance in the situation where, being already in possession of a controlled substance, he makes it ready for use (i.e., rolling marijuana into ciga rettes for smoking) or combines it with other ingredients for use (i.e. making the so-called "Alice B. Toklas" brownies containing mari juana).

Id. at 124, 926 S.W.2d 658. There is no evidence in the record that suggests that this exception applied to the facts of this case. It was not error to refuse the instruction.

Affirmed.

Robbins and Baker, JJ., agree.