ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

JOHNNY PAUL DODSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1160

June 6, 2001

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[NO. CR-99-93-2]

HON. PHILLIP H. SHIRRON,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged as a habitual offender with criminal attempt to manufacture methamphetamine in concert with his wife, Karen Humes. After a jury trial, appellant was convicted of that offense and sentenced to fifty years in the Arkansas Department of Correction. From that decision, comes this appeal.

For reversal, appellant contends that his conviction of attempt to manufacture methamphetamine is not supported by substantial evidence; that the trial court erred in denying his motion to suppress evidence obtained in a warrantless search of a trailer rented by appellant; and that the trial court erred in admitting testimony concerning items seen in a camper. We affirm.

We first address appellant's contention that his conviction of attempt to manufacture methamphetamine is not supported by substantial evidence. We review the evidence in the light most favorable to the appellee, and the judgment will be affirmed if there is substantial evidence to support the verdict. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Substantial evidence must do more than create a suspicion of the existence of the fact to be established; it must induce the mind to pass beyond a suspicion or conjecture and must be of sufficient force and character as to compel a conclusion one way or the other with reasonable and material certainty. Id.

Viewing the evidence, as we must, in the light most favorable to the appellee, the record reflects that appellant owned a camper. John Browning testified that he went to check on some land owned by his mother in January 1999. There was an unoccupied residence on the land that Mr. Browning occasionally used during hunting season. When he arrived, he discovered a white camper, approximately fourteen feet long, parked directly behind and approximately six feet from the unoccupied residence on the property. The windows of the camper were covered with aluminum foil preventing him from seeing inside. Mr. Browning knocked and entered the camper. He noticed a strange odor and saw a quantity of large pickle jars, rubber gloves, cases of starter fluid, clear plastic tubing, and ether. Mr. Browning called his half-brother, Jerry Benn, and told him about the camper.

Mr. Benn testified that he went to the property and saw that the camper was still there. He also saw that there was a van stuck in the front yard and an automobile stuck in the back yard. The automobile was driven by Karen Humes and the van was driven by appellant,neither of whom had permission to be on the property. Mr. Benn attempted to pull the vehicles out but was unsuccessful. Appellant asked Mr. Benn if he could leave the vehicles there until he could come back and get them, and Mr. Benn agreed. Subsequently the police contacted Mr. Benn and asked if they could come and inspect the camper. They were given permission to do so, but the camper had been removed earlier on the day that they arrived.

Mitchell Robbins, the owner of a wrecker service, testified that three men came to his place of business early one morning in January 1999 and hired him to pull a camper out of the deer woods. He accompanied the men to the woods and saw a camper parked directly behind a home. Mr. Robbins towed the camper to solid ground, and one of the men paid him $60 in cash. He identified a photograph of appellant as the man who paid him.

George Pratt testified that he owned a trailer located in an isolated area sixteen miles south of Malvern, Arkansas. The trailer's well had no pump, and the trailer had no running water. He stated that appellant rented the trailer for $200 per month, payable monthly, late in 1998. There was no lease. Appellant always paid the rent in cash. Appellant paid Mr. Pratt the initial month's rent personally, but thereafter paid the rent by placing an envelope containing two $100 bills on Mr. Pratt's screen door the Sunday night before the rent was due. This invariably occurred while Mr. Pratt was at church services. Mr. Pratt testified that, when appellant rented the trailer, a small camper, approximately fourteen feet long, was brought onto the property. Mr. Pratt was told that appellant's brother was staying in the camper. During the time appellant rented the property, a young man called Mr. Pratt and told him that a trash fire had gotten out of control and destroyed an automobile on the trailerproperty. The automobile was owned by Mr. Pratt's daughter. Appellant reimbursed Mr. Pratt for the damage to his daughter's automobile.

Mr. Pratt further testified that, in late January or early February of 2000, he went to the trailer property after a neighbor called and told him that the occupants had moved out in the middle of the night. When Mr. Pratt arrived, he saw that there were no vehicles there and that the camper was gone. The trailer was locked and appeared to be deserted. Mr. Pratt also noticed that the windows of the trailer had been completely covered in black plastic since he initially rented it to appellant. Mr. Pratt waited until approximately one week after the rent was due before entering the trailer. When he did so, he noticed that there was nothing in the trailer except some chemicals and utensils that appeared to be of no use to a normal household, and he called the police.

Officer Pat Mahoney, a criminal investigator with the Hot Spring County Sheriff's Department, testified that Mr. Pratt called him on February 12, 2000, and asked him to inspect the rental trailer. Officer Mahoney entered the trailer at the owner's request and noticed a strong chemical odor that, through experience, he associated with the manufacture of methamphetamine. Inside the trailer he found numerous plastic bags, gloves, and bottles, as well as glass jugs. He also found a gallon can of acetone, numerous bottles of professional drain opener composed of sulphuric acid, a gallon of muriatic acid, a blower fan, a large funnel, white tablets containing pseudoephedrine, and syringes containing methamphetamine residue. Nearby the trailer in a burned area were found cans of starter fluid containing ether that had been opened from the bottom and batteries that had been cutin half. Norman Kemper, a forensic chemist employed by the Arkansas State Crime Laboratory and specializing in clandestine drug labs, testified that it was his opinion that these items were without a doubt associated with the manufacture of methamphetamine.

Karen Humes testified that she had married appellant. Although she denied that appellant was present or involved, she admitted that the camper belonged to appellant and that she had used the trailer to manufacture methamphetamine. She also testified that the car on the property that had burned, and for which appellant had reimbursed Mr. Pratt, had been used to store ether and anhydrous ammonia.

Appellant argues that the case against him is based "solely and exclusively upon items found during the warrantless search of the trailer house" and items seen in the camper, and that the evidence is insufficient because there is nothing to connect him to those items. We do not agree. There was evidence that the camper contained items used in the manufacture of methamphetamine. Karen Humes testified that the camper belonged to appellant, and appellant was shown to have exercised control over the camper when he paid to have it towed and when it was moved onto the trailer property he rented. Furthermore, appellant asserts that, because he and his wife were joint occupants of the trailer, the State was therefore required to show some additional factor linking him to the contents thereof. See Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). However, appellant was not charged with possession of the items found in the trailer, but instead with criminal attempt to manufacture methamphetamine. All that was required was proof that he had the intent to manufacture methamphetamine and that he took a substantial step in a course of conductintended to culminate in the commission of that offense. See Ark. Code Ann. § 5-3-201(a)(2) (Repl. 1997). The existence of criminal intent or purpose is a question of fact to be determined by the trier of fact when criminal intent may be reasonably inferred from the evidence; the trier of fact resolves any conflicts in testimony and determines the credibility of the witnesses, and its conclusion on credibility is binding on the appellate court. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). We think that the evidence that appellant possessed a camper loaded with precursor chemicals, arranged for the camper to be towed from a remote location where it was stuck, took it to a trailer he rented, and paid for damages to a car that was destroyed on the trailer premises while precursor chemicals were being stored in it, together with proof that methamphetamine was manufactured in that trailer by appellant's wife, is sufficient to prove he intentionally took a substantial step toward manufacturing methamphetamine even if there is nothing to show that he possessed the items found in the search of the trailer. We hold that appellant's conviction for criminal attempt to manufacture methamphetamine is supported by substantial evidence.

Appellant next contends that the trial court erred in denying his motion to suppress evidence obtained in the warrantless search of the trailer. We need not reach that issue because, even assuming arguendo that the search of the trailer was illegal and the items found therein should have been suppressed, appellant was clearly not prejudiced by the admission of that evidence. Illegally obtained evidence that is erroneously admitted is subject to the constitutional harmless error analysis; i.e., before such an error can be heldharmless, the appellate court must declare it harmless beyond a reasonable doubt. Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). The question for this court to determine is, if we excise from the evidence the items seized during the assertedly illegal search of the trailer, does the remaining evidence show beyond a reasonable doubt that appellant engaged in a criminal attempt to manufacture methamphetamine? See Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). We hold that it does. The items found in the trailer were relevant only to show that methamphetamine had been manufactured in the trailer; however, appellant's own wife, called by him and testifying in his behalf, affirmed that very fact. The evidence is therefore cumulative to the point of insignificance and any error that may have occurred is harmless beyond a reasonable doubt. See Schalski v. State, supra.

Finally, appellant contends that the trial court erred in admitting testimony concerning the items seen in the camper by Mr. Browning. We do not address this issue because, although appellant objected to testimony about the fact that a search warrant had been issued for the camper, he failed to object to Mr. Browning's testimony concerning the camper's contents. Appellant is bound by the scope and nature of the argument made at trial, and cannot change his argument on appeal. Whitfield v. State, 70 Ark. App. 451, 20 S.W.3d 422 (2000).

Affirmed.

Robbins and Bird, JJ., agree.