ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-1176

August 29, 2001

RALPH EDWARD CALDWELL APPEAL FROM RANDOLPH COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE HAROLD S. ERWIN,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury found Ralph Edward Caldwell guilty of manufacturing methamphetamine, possession of methamphetamine with intent to deliver, simultaneous possession of drugs and firearms, possession of drug paraphernalia, possession of pseudoephedrine with intent to manufacture methamphetamine, and possession of marijuana. He was sentenced to serve an aggregate term of thirty-nine years in prison. Appellant argues that (1) the trial court erred in denying his motion to suppress evidence; (2) the trial court erred in allowing him to be convicted for both manufacturing methamphetamineand possession of pseudoephedrine with intent to manufacture methamphetamine; and (3) the trial court abused its discretion in ordering the sentences to run consecutively. We disagree and affirm.

Randolph County Sheriff Rob Samons testified that he went to appellant's residence to investigate a complaint from Tammy Deckard that she had been held against her will at appellant's residence and that another woman may still be there against her will. Samons testified that he noticed a strong odor of ether inside the house and, where the odor was strongest, he saw a jar of clear liquid. He recalled that appellant may have said he used the ether to clean radio parts. The sheriff stated that he had received information that appellant was involved in drug activities prior to Deckard's complaint. Samons testified that because a Missouri officer, who was also investigating the incident, wanted to take a statement from appellant, he took that officer back to appellant's residence. The Missouri officer also smelled ether. Samons stated that Melanie Gearhart was at appellant's residence but that she said she was not being held against her will. He took a detailed and lengthy statement from Deckard who indicated that she had helped appellant make methamphetamine at the house. Samons obtained a search warrant that was executed at 7:05 in the evening.

Officer Michael Steele, a narcotics investigator, testified that he assisted Samons in executing the search warrant. He statedthat when he and the other officers pulled into the driveway they could hear an audible alarm going off inside the house. Steele testified that the alarm concerned him because it would have alerted the person inside the house of the officers' presence so that the person could arm himself or destroy evidence. He stated that Samons twice knocked on the door and announced that the police were there with a search warrant. He testified that when they did not get a response from inside he kicked in the door. Soon they encountered appellant coming down the stairs with a pistol. Steele said that the items seized from appellant's residence that evening would indicate that appellant was operating a clandestine metham phetamine lab.

In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against a preponderance of the evidence. Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998).

Rule 13.1(b) of the Arkansas Rules of Criminal Procedure incorporates the totality-of-the-circumstances test established in Illinois v. Gates, 462 U.S. 213 (1983), whereby:

[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a "substan tial basis for . . . conclud[ing]" that proba ble cause existed. State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993).

Appellant first argues that no effort was made to establish the reliability of Gearhart and Deckard and that the warrant was based in part on their hearsay statements. However, no additional support for the reliability of witnesses is required where the witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Here, Deckard was a private citizen who came forth with information gained from her own observations at appellant's residence. There is no indication that any statement made by Gearhart was relied on to obtain the search warrant.

Appellant next contends that the odor of ether does not justify a nighttime search. The search warrant here authorized the search of appellant's residence between 6:00 a.m. and 8:00 p.m., which would not constitute a "nighttime" search. Ark. Rule Crim. Pro. 13.1(b)(iii). The officers testified that the warrant was executed at 7:05 p.m. or thereabouts, but appellant and his wife testified at the suppression hearing that they were asleep in their bed until the officers arrived at 8:30 p.m. The resolution of this conflict turns on the credibility of witnesses, a matter solely within the province of the trial court as fact-finder. McChristianv. State, 70 Ark. App. 514, 20 S.W.3d 461 (2000). The trial court was not required to believe the defendant's version of the events because he is the person most interested in the outcome. Reams v. State, 45 Ark. App. 7, 870 S.W.2d 404 (1994).

Appellant also argues that the sheriff failed to disclose facts that could have been exculpatory to him, such as the fact that he cooperated fully; that he explained that the ether was used to clean radio parts; and that Gearhart was with him of her own free will. When an officer omits facts from an affidavit, the defendant must establish by a preponderance of the evidence that: (1) the officer omitted facts knowingly and intentionally, or with reckless disregard for the truth, and (2) the affidavit, if supplemented with the omitted information, is insufficient to establish reasonable cause. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). Matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit and which render what is in the affidavit effectively false because of their nondisclosure. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994). Clearly, the inclusion of the omitted facts in the affidavit would not have rendered it insufficient.

Finally, appellant maintains that the officers did not wait a reasonable period of time before breaking down his front door. Mere technical compliance with the "knock and announce" requirement is not sufficient where there is not a reasonable amount of timebetween the announcement and forced entry, unless exigent circum stances, including danger or harm to officers or others and the destruction of evidence, were known to the officers at the time of entry. Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648 (1999). Considering the alarm that sounded upon the officers' arrival and Sheriff Samons's prior observation of firearms in the residence, we cannot say that exigent circumstances did not exist in the case at bar.

Appellant's second argument is that he cannot be found guilty of possession of pseudoephedrine with intent to manufacture methamphetamine because it is a lesser-included offense of manufacturing methamphetamine. Appellant relies on Craig v. State, 314 Ark. 585, 863 S.W.2d 386 (1993), where the court held that possession of marijuana is a lesser-included offense of manufactur ing marijuana so that Craig's subsequent prosecution for manufac turing was barred by the double jeopardy clause. The court's reasoning in Craig was that the offense of possession of a controlled substance contained no element that is different from that of manufacturing and that the State, in proving the offense of manufacturing, necessarily had to show that Craig was in possession and control of the substance in order to manufacture it.

For appellant to be convicted of possession of pseudoephedrine with intent to manufacture methamphetamine, the State had to prove that he knowingly or intentionally possessed pseudoephedrine withthe intent to manufacture methamphetamine. See Ark. Code Ann. § 5-64-1102 (Repl. 1997). Arkansas Code Annotated section 5-64-401 (Supp. 1999) proscribes the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance. "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction or chemical synthesis . . . Ark. Code Ann. § 5-64-101 (Repl. 1997).

In Blockburger v. United States, 284 U.S. 29 (1932), the Court held, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact that the other does not. In Grady v. Corbin, 495 U.S. 508 (1990), the Supreme Court held that in addition to passing Blockburger's "same-elements" test, a subsequent prosecution must satisfy a "same-conduct" test to avoid the double jeopardy bar. In United States v. Dixon, 509 U.S. 688 (1993), the Court overruled Grady and held that the Blockburger test was the only one to be applied. See Penn v. State, 73 Ark. App. 424, ___ S.W.3d ___ (2001).

Using Blockburger's "same-elements" test, in order to convict appellant of manufacturing methamphetamine, the State had to showthat appellant committed any of several acts, whereas, to sustain the conviction for possession of pseudoephedrine with intent to manufacture methamphetamine, the statute requires that the State show that appellant possessed a particular substance, pseudoephe drine, and that appellant did so with a particular mental state. See Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001)(holding that double jeopardy was not violated when the defendant was found guilty of both possession with intent to deliver and manufacturing a controlled substance because the State was not required to prove that the defendant intended to deliver the controlled substance he had manufactured). Moreover, pseudoephedrine, commonly found in over-the-counter cold medicines, is not a controlled substance in and of itself, and the definition of "manufacture" speaks to controlled substances. Pseudoephedrine is only a drug precursor that the possession of which becomes unlawful when a person holds an excessively large amount. See Ark. Code Ann. §§ 5-64-415 and 5-64-1101.

Possession of pseudoephedrine with intent to manufacture methamphetamine and manufacturing methamphetamine do not contain the same elements of proof. A person could simply possess pseudoephedrine and even do so with the intent to manufacture methamphetamine and yet not be committing any of the various acts associated with manufacturing methamphetamine. Conversely, thedefinition for manufacturing methamphetamine does not require that a person possess pseudoephedrine.

Finally, appellant maintains that the trial court abused its discretion in ordering his sentences to run consecutively because its effect is a life sentence for him. It is within the province of the trial court to determine whether sentences should run consecutively or concurrently, and the decision is left to the sound discretion of the trial court. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995); see also Ark. Code Ann. § 5-4-403 (Repl. 1997). The trial court is not required to explain its reason for running sentences consecutively. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Here, the trial judge stated that he considered appellant to be dangerous and not easily deterred. We cannot say that the trial court abused its discretion in ordering the sentences to run consecutively.

Affirmed.

Stroud, C.J., and Pittman, J., agree.