ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

JOHN HENRY RHODES, JR.,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-1122

SEPTEMBER 19, 2001

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT,

NO. CR99-57,

HON. DAVID REYNOLDS, JUDGE

AFFIRMED

John Henry Rhodes was tried by a jury on drug-related charges that resulted from law enforcement officers' discovery of a methamphetamine lab in a trailer where he was staying. He was convicted of possession of drug paraphernalia and endangering the welfare of a minor. He was acquitted of possession of marijuana, and a mistrial was granted on the charge of manufacturing methamphetamine because the jury could not arrive at a verdict. He was sentenced as a habitual offender to twenty-seven years in the Arkansas Department of Correction.

Rhodes now appeals the convictions. He contends that the trial court erred by failing to grant a directed verdict for possession of drug paraphernalia and endangering the welfare of a minor; by failing to dismiss Count II, possession of drug paraphernalia; and by denying his motion to suppress evidence. He also contends that the trial court denied his right to afair hearing during the sentencing phase. We affirm.

Rhodes's first point of appeal is that the trial court erred in failing to grant a directed verdict with respect to possession of drug paraphernalia and endangering the welfare of a minor. At trial, Rhodes moved for directed verdicts at the close of the State's case in chief and again at the close of all the evidence. The trial court denied the motions.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. 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. Id. Substantial evidence is that which 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. Id. Furthermore, it is within the province of the fact-finder to resolve conflicts in testimony and to assess credibility of witnesses. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). Finally, attempts to cover up a crime are admissible. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993).

The State's evidence at trial included testimony by Scott Bradley, an investigator with the Van Buren County Sheriff's Department; by Afton Fletcher, an investigator for the Fourteenth Judicial District Drug Task Force; and by Chief Deputy Billy Walker of the sheriff's department. They testified that on the evening of June 9, 1999, they were among

the officers who executed a search warrant at the residence of Connie Ward in Van Buren County. Investigator Bradley testified that he and others went to the two doors of the residence, which was a trailer, and knocked; they announced themselves and their search warrant. Bradley testified that he heard people inside the trailer running and heard things being "banged around, moved around." He testified that when officers began prying the door with a crowbar, Rhodes pushed the door open and came out with his hands up. Investigator Fletcher and Deputy Walker testified that they also knocked and announced themselves. They testified that inside the trailer they encountered a thick fog and the strong odor of chemicals associated with a methamphetamine lab, that Sandra Lindsay and her baby were found in a bedroom, and that Eddie Wyatt was found at the front of the trailer.

Sandra Lindsey, Rhodes's sister, also testified for the State. She testified that she had been staying in Ward's two-bedroom trailer about a week before the search warrant was executed, and that her brother had been staying there off and on although he had no bedroom there and usually slept on the couch. Lindsey further testified:

Ryan Black, a chemist with the state crime laboratory, was another witness for the State. He described how items that were seized in the search in the manufacture of methamphetamine could be used in the manufacturing process. He testified that a quart jar that contained liquid methamphetamine, which was one of the pieces of evidence in this case, was near the final stage of manufacture.

Rhodes argues that the State did not prove either of the crimes for which he was convicted because it did not prove that he was in possession of the items listed in the drug-paraphernalia information: "needles, fitters [sic], corners of baggies, tubing, scales, spoons, glassware, and apparatus for the manufacture and use of controlled substances, to-wit methamphetamine."2 He notes that these items were found in the kitchen/living room and the bedroom, which were occupied by Wyatt and Lindsey.

In order to sustain a conviction for possession of a contraband, the State need not prove that the accused had actual physical possession of the controlled substance. See Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). Constructive possession, which is control of the contraband or right to control the contraband, is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. Constructive possession can also be inferred whenthe contraband is in the joint control of the accused and another. Franklin v. State, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Id. In such cases, the State must prove two additional elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew that the matter possessed was contraband. Id. (citing Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 794 (1988)).

Here, the State presented evidence that officers found paraphernalia for the manufacture of methamphetamine in common areas of the trailer that Rhodes occupied with others, and that he was one of the people in the residence at the time the warrant was executed. When officers knocked on the door and announced that they had a search warrant, they heard the occupants running and banging things around. Upon entering the trailer, officers encountered strong fog and chemical fumes, and they found liquid methamphetamine as well as various items associated with the manufacturing process. Sandra Lindsey testified that she told officers that Rhodes had plans to manufacture methamphetamine and that he was in the trailer in the two hours before the warrant was executed. We hold that this evidence constitutes substantial evidence to support Rhodes's convictions.

As his second point of appeal, Rhodes contends that the trial court erred in failing to dismiss Count II, possession of drug paraphernalia, because "the information alleged in the disjunctive two separate and distinct crimes within the same conduct." He points to theallegation that he possessed certain items "with intent to use or manufacture (methamphetamine) . . . ." He contends that this language alleges both possession of drug paraphernalia with intent to use methamphetamine, and possession of drug paraphernalia with intent to manufacture methamphetamine. The former is a Class C felony under Ark. Code Ann. § 5-64-403(c)(1)(Supp. 1999); the latter is a Class B felony under subsection (c)(5). The State responds that Rhodes's second point of appeal is barred from appellate review because it was not raised before the trial court. We agree with the State.

A non-jurisdictional challenge to the sufficiency of a felony information must be made before trial to preserve the issue for appellate review. Ray v. State, 344 Ark. 136,40 S.W.3d 242 (2001). Where an appellant does not challenge the sufficiency of the information until after the jury had been chosen and sworn to hear the case, jeopardy has attached and the argument is not preserved. McNeese v. State, 334 Ark. 445, 976 S.W.2d 373 (1998). A motion for a directed verdict is not a substitute for a timely motion to dismiss an allegedly improper information. See Williams v. State, 331 Ark. 263, 269, 962 S.W.2d 329, 331 (1998). Here, Rhodes did not challenge the sufficiency of the information until he moved for a directed verdict at the close of the State's case. By failing to raise this issue before trial, he has not preserved his claim for appellate review. We, therefore, will not now consider it.

As his third point of appeal, Rhodes contends that the trial court erred in denying his motion to suppress evidence because parts of the supporting affidavit were false, and that without the false information, the affidavit failed to establish probable cause to search. Heargues that law enforcement officers who signed the affidavit were not truthful regarding their own confirmation of a confidential informant's reliability, and that they relied upon fellow officers' representations that the informant was reliable.

An identical point of appeal was raised in Wyatt, supra (n.1), by Rhodes's co-defendant Eddie Wyatt. In that case, Wyatt contended that the trial court erred in denying his motion to suppress evidence because the affidavit supporting the search warrant included material misstatements of fact regarding the reliability of the confidential informant. We affirmed, discussing the point at length. For the reasons in Wyatt v. State, id., we now affirm the denial of the motion to suppress regarding appellant Rhodes.

Rhodes contends as his final point of appeal that the trial court denied his right to a fair sentencing hearing by its refusal to admit signed letters of character reference into evidence and its "failure to recess until the next morning for the State to cross-examine said witnesses live." At the sentencing stage, Rhodes proffered seventeen identical letters stating that he had exhibited responsibility, good work habits, and a good attitude while a trustee at the Van Buren County Jail. The letters had been signed by various members of law enforcement of Van Buren County. The trial court upheld an objection by the State that the letters were hearsay, and Rhodes asked for a continuance until the next morning so that the witnesses could be made available for cross-examination.3 Rulings on the admission of evidence lie within the sound discretion of the trial court, and this courtwill not disturb evidentiary rulings absent a showing of abuse of discretion and prejudice. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997). In Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000), reversible error was found where hearsay testimony was admitted at the sentencing phase to show the appellant's prior convictions. Under Ark. R. Evid. 801, hearsay is a statement other than the one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Here, because the letters offered were clearly hearsay offered to prove the truth of the matter asserted, the trial court did not abuse its discretion in refusing to admit them.

Affirmed.

Robbins and Vaught, JJ., agree.

1 In his reply brief, Rhodes asserts that testimony about his plans to learn how to manufacture methamphetamine was inadmissible and was stricken by the trial court. It is not clear, from the abstract, however, which parts of the testimony were covered by the ruling. It is appellant's duty to provide a record demonstrating that reversible error occurred. Wyatt v. State, __ Ark. App. ___, __ S.W.3d ___ (August 29, 2001).

2 Rhodes concedes that if there was substantial evidence to support the conviction for possession of drug paraphernalia, there also would have been substantial evidence to support the conviction for endangering the welfare of a minor in the second degree.

3 Rhodes's brief states that the motion was denied. The abstract does not show this.