NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION I

SARAH O'NEAL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-602

September 12, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. 98-4061]

HONORABLE DONALD R. HUFFMAN, CIRCUIT JUDGE

AFFIRMED

At a bench trial, the court found appellant, Sarah O'Neal, guilty of the crimes of attempted manufacture of methamphetamine, possession of drug paraphernalia, and possession of ephedrine and sentenced her to a total of six years' imprisonment in the Arkansas Department of Correction. For her first point on appeal, appellant argues that her convictions for attempted manufacture of methamphetamine and possession of drug paraphernalia must be reversed and dismissed because the State failed to prove that she constructively possessed various items of drug paraphernalia. Second, she argues that her conviction for possession of ephedrine should be reversed and dismissed because the State presented evidence of possession of pseudoephedrine, not ephedrine. We affirm, concluding that the State sufficiently established that she possessed the items of drug paraphernalia and that she failed to preserve her second argument for appellate review.

On August 8, 1998, Detectives Dana Jackson and Ken Blankenship were working off-

duty at a drugstore when appellant and Michael Wilson entered the store together, split up after a brief conversation, and purchased six boxes each of allergy medicine at separate check-out stands. Appellant and Wilson then left in a gray Isuzu Trooper driven by Vicky Hormann. After contacting an on-duty patrol unit, the detectives followed the Isuzu in an unmarked vehicle to a Kroger grocery store where they saw appellant and Wilson enter and then exit the store with bags.

After a patrol unit stopped the Isuzu, Wilson exited from the right front passenger's seat and fled into some nearby woods. The Isuzu had only the two front seats and a flat surface without seats in the rear. According to Blankenship, O'Neal was sitting in the rear of the Isuzu behind the driver's seat. Also within this three-by-four feet space in the rear of the Isuzu were grocery bags containing four large packages of coffee filters, one container of Red Devil drain opener containing lye, nine bottles of Heet brand carburetor cleaner, four jugs of Toluene, two containers of butane, four bottles of hydrogen peroxide, two containers of salt, four plastic funnels, and allergy medication (including the twelve boxes of nasal decongestent purchased from the drugstore, seven boxes of Kroger brand nasal decongestant, and six boxes of Equate brand antihistamine). Additionally, within arm's reach of appellant in the rear of the Isuzu behind the front passenger seat was a black duffel bag that contained a red powder in three plastic bags, another substance in a plastic bag, a red substance in a plastic bottle, and a dark crystalline substance in a glass jar.

According to the State's forensic chemist, Dan Hedges, there were 816 tablets representing 49.68 grams of pseudoephedrine. The red powder in the three plastic bags wasred phosphorus. The other plastic bag contained 30.616 grams of 82% pure pseudoephedrine. The dark crystalline substance in the glass jar was iodine. The red substance in the bottle was a mixture of red phosphorus, iodine, methamphetamine, and ephedrine. Hedges testified that with the addition of one item, hydrochloric or muriatic acid, methamphetamine could be made from the items found in the Isuzu.

During an interview, appellant falsely identified herself to the detectives as Tonya Milligan. Jackson also asked appellant why she and Wilson were purchasing so much "SudaFed." Jackson testified that appellant "stated to me they were going to do a cook pretty soon."

Appellant argues that her convictions for attempt to manufacture methamphetamine and possession of drug paraphernalia must be reversed and dismissed because the State failed to prove that she constructively possessed drug paraphernalia. The often-stated standard of review in such challenges is as follows:

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Possession of drugs can be proved by constructive possession. Id. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Id. There must be some other factor linking the accused to the drugs:

Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest.

Id. at 207, 884 S.W.2d at 600.

Dodson v. State, 341 Ark. 41, 47, 14 S.W.3d 489, 493 (2000).

Here, there are several factors linking appellant to the items found in the Isuzu. Appellant was seen purchasing nasal decongestant at the drugstore. Appellant was also sitting in the rear of the Isuzu where all of the items were found. When asked why she and Wilson purchased the nasal decongestant, she stated that they were "going to do a cook pretty soon." Further, appellant acted suspiciously, falsely identifying herself to the detectives as Tonya Milligan. Given this evidence, we conclude that the court did not err in finding that the State established appellant's constructive possession of the drug paraphernalia.

Appellant next argues that her conviction for possession of ephedrine should be reversed and dismissed because the State presented evidence of possession of pseudoephedrine, not ephedrine. Upon reading her counsel's remarks at the close of the bench trial, and as readily acknowledged by appellant, this challenge to the sufficiency of the evidence was not made below. As our court rules clearly state, "A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient." Ark. R. Crim. P. 33.1(c) (2001). Appellant's failure to specifically raise this argument precludes this court from reviewing her argument on appeal. Sharkey v. State, 71 Ark. App. 50, 51, 25 S.W.3d 458, 459 (2000). Nevertheless, we note that the forensic chemist, Dan Hedges, testified that one of the bottles found in the duffle bag contained a mixture of chemicals that included methamphetamine and ephedrine.

Affirmed.

Pittman and Roaf, JJ., agree.