ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

LUCKY DALE PATTON,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-1238

SEPTEMBER 12, 2001

APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT,

NO. CR99-174,

HON. HARVEY LEE YATES,

JUDGE

AFFIRMED

Lucky Dale Patton was tried before a jury on four charges resulting from the execution of a search warrant on December 4, 1998, at a residence that had been rented to Patton and his wife, Cindy Arwood Patton. He was acquitted of the charge of manufacturing methamphetamine but was convicted of charges of simultaneous possession of firearms and methamphetamine, possession with intent to deliver methamphetamine, and possession of drug paraphernalia.

Patton appeals his convictions. He contends that the trial court erred 1) by not dismissing all charges because of insufficient evidence, 2) by admitting three categories of inadmissible evidence, 3) by refusing to dismiss the simultaneous possession of methamphetamine and firearms charge pursuant to the defense provided by Ark. Code Ann. § 5-74-106, 4) by instructing the jury that the affirmative defense required proof by apreponderance of the evidence, 5) by instructing the jury on accomplice liability, and 6) by

denying Patton's request for a mistrial based upon remarks by the prosecutor in rebuttal closing argument. We find no error; therefore, we affirm.

1. Whether the trial court erred by not dismissing all charges because of insufficient evidence

The law makes no distinction between circumstantial and direct evidence in a review for sufficiency; however, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Whether the evidence excludes every such hypothesis is ordinarily for the trier of fact to determine. Id. In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998).

At trial, Deputy Sheriff Scott Russell of the Sixteenth Judicial District Drug Task Force testified that law enforcement officers maintained twenty-six continuous hours of surveillance before the warrant was served at 3:23 p.m. on December 4. He testified that when officers arrived to serve the warrant, Patton had just come out of a shed in the back yard, and his wife was in the yard on her hands and knees, wearing a bathrobe and digging in the dirt with a saucer; they were arrested and taken to the police station. When questioned about Patton's general condition, Russell stated, "Based upon my, at that time, approximately eleven years of law enforcement experience, I felt Mr. Patton was under theinfluence of methamphetamine."

Russell further testified that officers found all items necessary to make methamphetamine except anhydrous ammonia, and that insurance papers indicated that Patton owned a 1989 Lincoln Continental that was in the driveway. Russell testified that officers seized items such as marked telephone books and writings in order to determine if other people were involved, and they also seized an audiotape from an answering machine. He testified that a cigar box in plain view in the kitchen contained a small spiral notebook with notes, a film canister with an off-white powder substance believed to be methamphetamine, coffee filters with residue, an ibuprofen bottle with tablets, eighteen hypodermic needles, and a large Baggie containing a large quantity of off-white powder-like substance that field-tested positive for methamphetamine. He said that three blister packs of pseudoephedrine, an empty salt container, and two fans were found in the shed; rolling papers were found in a jewelry cabinet in the bedroom; and, in what they called an office, were found a desk, a lot of paperwork, an aerator, and a loaded Marlin .22 rifle. Regarding the notebooks and papers seized from the residence, Russell testified that handwritten notes included the following statements:

Handwriting on a page from a telephone book introduced through Russell stated, "One batch to cook. Two batches in ALK. One batch to put in ALK."

Finally, Russell testified that while officers were conducting the inventory at thehouse, Terrence Vessells drove onto the property in a pickup truck. Officers seized from his person a bill of sale for a 1989 Lincoln and a $500 check to Cynthia Arwood Patton. From the truck they seized pipe fittings, paint valves, a roll of plastic tubing, two red steel tanks used for anhydrous ammonia, thirteen packs of double "A" Energizer lithium batteries, a box of five-card Sudafed tablets, a gallon of denatured alcohol, a sack of thirteen boxes of forty-eight pack tablets of Equate antihistamine tabs, a box of twenty-four count decongestant, fifteen boxes of twenty-four count Equate pseudoephedrine, and two more red steel tanks. Roy Adams Jr., a chemist with the state criminal laboratory, testified that he had tested samples of evidence from the Patton case. He stated that an off-white substance in a plastic bag in an ibuprofen bottle proved to be 6.032 grams of methamphetamine and ephedrine, a powder in a film cannister contained .676 grams of methamphetamine and ephedrine, and three coffee filters also had methamphetamine residue.

Investigator Barry Roy of the Arkansas State Police testified regarding the execution of the search warrant. He testified that the window shades were pulled together with clothes pins and the drapes were double-layered, and the front door was locked and nailed shut. He stated, "When Mr. Patton came out of the shed, his eyes were flickering, which is a common characteristic of people that are high on a drug. In my opinion, Mr. Patton was under the influence of some kind of drug." Roy also testified that in a conversation on the seized audiotape, Vessells asked Patton's wife to speak with appellant Patton, that the men had a brief conversation about the phone being wired or tapped, and that Vessells said that he would see Patton shortly.

In the case for the defense, Carol Smith, an employee in the sporting goods department of Wal-Mart, testified that a Wal-Mart document reflected that the Marlin .22 rifle introduced at trial was purchased by Cynthia Arwood Patton. Appellant Patton's sister-in-law testified that he and his wife had been experiencing marital difficulties and that he had been living with her before December 4, that his truck was not running, and that on the afternoon of December 4 she dropped him off in the alley at the back of his house to get tools so he could work on his truck.

At the close of the State's case and again at the close of all the evidence, Patton moved for directed verdicts on all counts, arguing that the State had not proved that he had exclusive possession of controlled substances, and that he was entitled to a dismissal of the simultaneous possession of methamphetamine and a gun. The arguments in his brief regarding sufficiency of the evidence concern a lack of proof that he exercised care, control, and management over the methamphetamine that officers testified was found in the ibuprofen bottle in a cigar box in the kitchen. The State argues that his appeal does not contest his conviction for possession of drug paraphernalia. We note, however, that Patton specifically argues that each of his convictions should be reversed because each involved the methamphetamine. Therefore, we disagree with the State and find that the issue of sufficiency of the evidence has been preserved with regard to the three convictions.

In Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998), we stated the following:

60 Ark. App. at 201-02, 962 S.W.2d at 372.

In his argument under this first point of appeal, Patton contends that the State failed to show that he had exclusive possession of the methamphetamine found in the cigar box, and that all of his convictions center around this proof. He points to evidence that, at the time of the search, he was in the back yard or had just come out of the shed, and he was not inside the residence; that he had no controlled substances or drug paraphernalia on his person or in his immediate vicinity; that he was polite and cooperative upon his arrest; and that officers never saw him inside the residence. He contends that evidence supports the conclusion that the methamphetamine belonged to his wife for her personal use. Regarding proof of his constructive possession of the contraband, he argues that it is more likely that he had been staying with his sister-in-law for several days and had not been at his residence because of marital difficulties, and that she had dropped him off in the alley to get sometools shortly before officers began their search.

The State argues that substantial evidence of Patton's constructive possession of methamphetamine consisted of evidence that the drugs were in a common area of his residence; that he and his wife were the only occupants of the residence, that no one else entered or left the residence for the twenty-six hours preceding the execution of the search warrant; that he and his wife were under the influence of methamphetamine at the time the warrant was executed; and that writings in the residence indicated that Patton manufactured, possessed, and sold controlled substances. We agree that this is substantial evidence of Patton's constructive possession of methamphetamine.

2. Whether the trial court erred by admitting three categories of evidence

A. Documents introduced in alleged violation of the hearsay rules

and Patton's right to confront a witness

The documents at issue in this point of appeal were presented at trial as State's Exhibits Nos. 34, 35, 42, and 43. Exhibits 34 and 35 are papers with handwritten notes, drawings, and lists. Patton points on appeal to such writings as these:

Patton complains on appeal, as he did at trial, that the purpose of the writings was toshow him as a manufacturer, dealer, or user of methamphetamine, and that they were introduced in violation of hearsay rules and his right to confront witnesses. The arguments he presents in his brief, however, are confined to the issue of hearsay. He points out that, despite his objections at trial, the State did not introduce testimony identifying the person who wrote these statements and references. The State responds that the statements were admissible as exceptions to the hearsay rule under Ark. R. Evid. 801(d)(2), as an admission of an out-of-court statement made by a co-conspirator in the course of and in furtherance of a conspiracy, or under Rule 803(3), as a statement of the declarant's then existing state of mind. Alternatively, the State responds that allowing the documents into evidence was harmless error in the face of overwhelming evidence of guilt. In his reply brief, Patton argues that Rule 801(d)(2) and 803(3) cannot be applied because the author of the hearsay statements is unknown.

In Box v. State, 74 Ark. App. 82, 45 S.W.3d 415 (2001), we found that the trial court abused its discretion in admitting into evidence a letter introduced by the State that purportedly was from the appellant. We agreed with the appellant's argument that the State had not shown that the matter in question was what its proponent claimed it to be. We further discussed the issue:

The authentication of a letter is subject to Ark. R. Evid. 901(a), and as such:

32A C.J.S. Evidence § 982(a)(1996). In the case at bar, we conclude that the documentary evidence offered lacked a reasonable certainty of genuineness and authenticity.

74 Ark. App. 82, 92-93, 45 S.W.3d 415, 422.

It is well settled that rulings on the admission of evidence lie within the sound discretion of the trial court, and the reviewing court will not disturb evidentiary rulings absent a showing of abuse of discretion. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). In the present case, the State presented no testimony or other evidence identifying the author of the handwriting on documents that referred to the manufacturing, dealing, or use of methamphetamine. We agree with Patton's argument that the statements are inadmissable because the author is unknown; thus, the trial court erred in admitting the documents into evidence.

We now examine this error in light of other evidence presented by the State to support the conviction for intent to manufacture methamphetamine, a charge that the inadmissable hearsay tended to prove. There was evidence at trial that six grams of methamphetamine and a loaded rifle were found in the home occupied by Patton and his wife, that numerous items of drug paraphernalia used in the manufacturing of methamphetamine were found in thehome and in the shed, and that Patton and his wife appeared to be under the influence of methamphetamine when the search warrant was executed. We hold that this evidence constitutes overwhelming evidence that Patton possessed methamphetamine with intent to deliver, the only charge to which the hearsay documents would have been relevant. Thus, the admission into evidence of the hearsay documents constituted harmless error.

B. Items found in co-defendant Vessells' vehicle

Patton argues on appeal, as he did below, that items from Vessells's truck were not relevant and that their probative value was substantially outweighed by the danger of unfair prejudice. Arkansas Rule of Evidence 401 defines "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Absent a showing of manifest abuse of discretion, the trial court's determination of whether relevant evidence's probative value is substantially outweighed by the danger of unfair prejudice will not be reversed on appeal. Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996).

Here, the State presented evidence on the audiotape seized from Patton's residence that Vessells had telephoned that he would be coming over to help, and evidence that Vessells did drive to the residence with items in his truck that could be used in the manufacturing process. The items were relevant to prove that Patton and Vessells acted in concert to manufacture methamphetamine, a charge of which Patton was acquitted. Thus,no prejudice was suffered by the admission of the evidence.

C. Officers' opinion testimony that Patton had the appearance of a person "strung out" on methamphetamine

Patton moved in limine that officers not be allowed to testify that he had the appearance of a methamphetamine user. The prosecutor responded by stating that the officers would not say that he was using methamphetamine, and that their opinion was similar to those expressed in trials for driving while intoxicated. The trial court ruled that the testimony would be relevant and admissible as to whether Patton appeared to be under the influence of drugs, but that "officers should not say" that it appeared to be methamphetamine. However, Investigator Russell testified at trial, "Based upon my, at the time, eleven years of law enforcement experience, I felt Mr. Patton was under the influence of methamphetamine."

Patton argues on appeal that there is nothing in the record to support the officer's unfounded conclusion that Patton had been using methamphetamine. He points to testimony that he was polite, cordial, and cooperative; and that no drugs were found on or near him. The State notes that it is the role of the jury rather than of the appellate court to assess the credibility of testimony and to weigh evidence.

We agree with the State. Opinion testimony regarding intoxication is admissible. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996). It was up to the jury to assess Officer Russell's opinion that Patton was under the influence of methamphetamine, and we find no abuse of discretion in the admission of this testimony. Chapman v. State, supra.

3. Whether the trial court erred by refusing to dismiss the simultaneous possession of methamphetamine and firearms charge pursuant to the defense stated in Ark. Code Ann. § 5-74- 106(d)

Arkansas Code Annotated section 5-74-106(d) (Repl. 1997) provides a defense to a charge of simultaneous possession of drugs and firearms if the defendant was in his home and the firearm was not readily accessible for use. Patton repeats the arguments made under Point 1 that the State did not prove constructive possession, this time with regard to the firearm, which was found in the living room in a gun rack, and whether it was readily accessible for use. There must be some link between the firearm and the drugs, and mere possession of a firearm is not enough. Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997). The question is whether the firearm must be proximate and accessible to the defendant, proximate to the drugs, or some combination of the two. See id.

In Manning v. State, id., police officers executing a search warrant entered a home where two men were seated in the living room, and Manning was one of four men in the kitchen. The police searched the house and found two guns wrapped in a black ski mask on the top shelf of the closet in the only bedroom. One gun was a loaded Lorcin 9 millimeter pistol, and the other was an unloaded Smith & Wesson .38 caliber revolver. Manning's arguments that the Lorcin handgun was not readily accessible for use were rejected by the supreme court, which noted that the firearm was proximate to both the accused and to drugs.

Here, the State points to Investigator Russell's testimony that the loaded .22 caliberMarlin rifle was recovered from the "office area" of Patton's house where an aerator and writings describing the manufacture of methamphetamine were found, and that no one besides Patton and his wife had entered or left the residence in the twenty-six hours of surveillance before the search warrant was executed. We find that this evidence is substantial evidence that Patton constructively possessed the rifle, and thus the trial court did not err in refusing to dismiss the charge of simultaneous possession of methamphetamine and firearms.

4. Whether the trial court erred by instructing the jury that Patton was required to prove by a preponderance of evidence the affirmative defense of Ark. Code Ann. § 5-74-106(d)

Patton cites Ark. Code Ann. § 5-1-111 (Repl. 1997), which sets forth the burden of proof for defenses and affirmative defenses. The pertinent part of the statute states:

The State responds that this argument is barred. At a hearing to settle proposed juryinstructions, the State offered two instructions and Patton offered one. The second of the State's instructions, later given to the jury, stated that "the defendant has the burden of proving this [defense] by a preponderance of the evidence." Patton proffered his own instruction and the State's instruction that was not ultimately used, and he stated that the State's first instruction was "the better of the two" regarding burden of proof. He did not, however, specifically object to the burden of proof as set forth in the instruction that was given. Therefore, we agree with the State that this point is barred on appeal.

5. Whether the trial court erred by instructing the jury on accomplice liability

During a conference on jury instructions, Patton objected to an instruction on accomplice liability, arguing that no evidence supported giving it. However, a jury instruction should be given wherever there is the slightest evidence supporting it. See Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). At trial, the State presented evidence that Patton, his wife, and Vessells acted in concert to manufacture methamphetamine: writings implicated both Patton and Vessells, the tape-recorded conversation showed that Vessells would be coming to the residence "to help," and Vessells arrived with paraphernalia used to manufacture methamphetamine. Therefore, the trial court did not err in giving the accomplice-liability instruction.

6. Whether the trial court erred when denying Patton's request for a mistrial based upon the prosecutor's statement in rebuttal closing argument, "I tell you folks, I would not be here if this man was not guilty. I would not be here."

Patton argues that the prosecutor improperly vouched for the credibility of his case. This argument is meritless because Patton invited the prosecutor's comment.

Patton stated during closing argument, "The prosecutor likes to get convictions, good or bad." He also asked, "Has anyone ever [heard] a prosecutor brag about a not guilty verdict? Has anyone ever heard the police talk about cases that they [lose]?"

The prosecutor then stated in rebuttal closing argument, "`You know, all the State wants is a conviction, right or wrong.' Who believes that? I tell you folks, I would not be here if this man was not guilty. I would not be here."

Patton asked the trial court for a mistrial or a cautionary instruction. Both requests were denied. When a defendant opens the door in closing argument to the State's comment, he cannot complain about it on appeal. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Thus, the trial court did not err in refusing to grant a mistrial or to give a cautionary instruction.

Affirmed.

Baker and Roaf, JJ., agree.