ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

VERA GARNER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1124

June 27, 2001

APPEAL FROM THE SEARCY COUNTY CIRCUIT COURT

[NO. CR 98-64]

HON. DAVID L. REYNOLDS,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with manufacturing methamphetamine and marijuana, possession of drug paraphernalia, and simultaneous possession of drugs and firearms. After a jury trial, she was convicted of those offenses and sentenced to twenty-two years in the Arkansas Department of Correction. From that decision, comes this appeal.

For reversal, appellant contends that there was insufficient evidence to support her convictions for manufacturing methamphetamine and marijuana and simultaneous possession of drugs and firearms; that the trial court erred in instructing the jury on accomplice liability; that there was no probable cause to sustain the warrant to searchappellant's home; and that the fruits of that search should be suppressed because the issuing magistrate had a conflict of interest. We affirm.

We first address appellant's contention that the evidence was insufficient to support her convictions for manufacturing methamphetamine and marijuana and simultaneous possession of drugs and firearms. When we review a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and affirm the conviction if it is supported by any substantial evidence, i.e., evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). The evidence may be either direct or circumstantial but, to be substantial, circumstantial evidence must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every other reasonable conclusion consistent with innocence is for the jury to decide. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).

Arthur Raff, a narcotics investigator with the Arkansas State Police, testified that he was investigating appellant's possible connection with the manufacture of methamphetamine when, on September 10, 1998, he came in contact with Johnny Ducote. On condition of immunity from prosecution, Ducote informed him that he cohabited with appellant and that appellant manufactured methamphetamine in her back yard. Officer Raff obtained and executed a search warrant the same day. The search of appellant's two-bedroom cabin revealed items used in manufacturing methamphetamine, including camp fuel and packagesof cold tablets containing pseudoephedrine. Other such items were found on the grounds of appellant's property, including a one-gallon jar containing liquid and white sediment, a plastic bag containing coffee filters with residue, and a 150-pound tank of anhydrous ammonia concealed under some brush. The cab of a pickup truck registered to appellant contained a sack covered with several items of women's clothing. Many of the components of a methamphetamine lab were found in the sack, including a quart jar containing liquid and brown sediment, a gallon jug of liquid fire, funnels, starting fluid, rock salt, and a homemade hydrochloric gas generator. In the bed of the truck the police officers found several one-gallon cans of denatured alcohol, two bottles containing battery acid, an empty twenty-four-tablet package of Sudafed, a coffee filter with residue, and two syringes.

Items associated with the use of controlled substances were also found in appellant's cabin, including a set of scales; two razor blades and three straws containing a white residue found on a plate underneath the bedroom sink in the master bathroom; a marijuana cigarette attached to a wire found on the kitchen table; a homemade brass pipe containing marijuana residue; a marijuana pipe made from a bottle; and a box containing marijuana, rolling papers, and marijuana seeds on the dresser in the upstairs bedroom.

Other items found during the search included a six-feet-tall marijuana plant growing in a shed approximately ninety yards from the cabin. Several weapons were found in the house, including a loaded pistol, a loaded rifle, several other rifles, and a shotgun.

Appellant contends that, in light of the evidence that Johnny Ducote cohabited with her in the cabin prior to the search, the jury could not have concluded that she wasresponsible for manufacturing methamphetamine and marijuana without resort to speculation and conjecture. We do not agree. When contraband is found in a place under a defendant's dominion and control a jury may infer constructive possession. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Although proof of knowledge of the contraband is also required if joint control is established, see id., there was more than enough evidence in the present case to establish appellant's knowledge. Appellant owned and lived in the cabin and, although Johnny Ducote shared the house with her, drugs and materials used in the manufacture of methamphetamine and marijuana were scattered throughout the cabin and grounds. Much of the contraband was in plain view; other items were concealed under women's clothing in a vehicle registered in appellant's name. Furthermore, there was testimony that appellant asked a co-worker to store anhydrous ammonia for her and that she denied any knowledge of how the items in evidence came to be on her property. The former testimony is evidence of appellant's knowledge of and control over a key substance in the manufacturing of methamphetamine, while the latter comment, being extremely improbable in light of the proliferation of these items throughout appellant's home and grounds, could properly be viewed as an indication of guilty knowledge on appellant's part. See Atkins v. State, 63 Ark. App. 203, 979 S.W.2d 903 (1998). We hold that the jury could properly find that appellant had knowledge of and participated in the manufacture of methamphetamine and marijuana.

Appellant also contends that the State was required to prove that she had the specific intent to distribute controlled substances in order to prove that she manufactured them, andthat the firearms found in the cabin were located too far away from the controlled substances to constitute simultaneous possession. We do not reach these issues because they were not within the scope of the argument raised below, and therefore are not preserved for appellate review. See Whitfield v. State, 70 Ark. App. 451, 20 S.W.3d 422 (2000).

Appellant next contends that the trial court erred in instructing the jury that it could find appellant guilty as an accomplice. We do not agree. Although it is true that appellant was not charged as an accomplice, the trial court may instruct the jury on accomplice liability without violating a defendant's due process rights even if the State failed to charge him as an accomplice. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994). If there is some evidence to support an accomplice instruction, it is appropriate for a trial court to give it. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Here there was substantial evidence to support a finding that Johnny Ducote, as joint occupant of the premises with detailed and exact knowledge of the location of the contraband, was also involved in the manufacture of methamphetamine, and the trial court therefore did not err in giving the accomplice instruction. See Orsini v. State, 286 Ark. 283, 691 S.W.2d 175 (1985).

Appellant next argues that the search warrant was invalid because some of the information recited in the affidavit was stale in that it was sixteen months old, and that there was no showing of the informant's reliability with respect to the most recent information. Arkansas Rule of Criminal Procedure 13.1(b) provides in part that:

Failure of the affidavit or testimony to establish the veracity and bases of knowledge of person providing information to the affiant shall not require that the application be denied, if theaffidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

Viewing the affidavit as a whole, we think that it tends to show that appellant has engaged in the manufacture or sale of methamphetamine over an extended period of time. The informant's statement, obtained on the day the warrant was issued, substantiated the previous information. Furthermore, the informant's statement was based on the informant's own observation while cohabiting with appellant. These factors lend veracity to the informant's statement and provide a substantial basis for a finding of reasonable cause. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996).

Finally, appellant contends that the trial court erred in refusing to suppress the results of the search on the grounds that the issuing magistrate had a conflict of interest based on his previous representation of appellant in an unrelated civil matter. This argument is not based on facts of record. When it was raised below, the trial court invited proof on the issue of bias. Although the State conceded that the issuing magistrate had once represented appellant, there was no testimony or other evidence in the record to show that the magistrate had any recollection of appellant, much less any knowledge that appellant was involved with drugs. Appellant has failed to meet her burden of proof on this issue. See Lofton v. State, 57 Ark. App. 226, 944 S.W.2d 131 (1997).

Affirmed.

Neal and Bird, JJ., agree.