NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR00-1104

OCTOBER 24, 2001

LLOYD STONE, JR. AN APPEAL FROM THE GARLAND

APPELLANT COUNTY CIRCUIT COURT v. [CR98-386-I]

STATE OF ARKANSAS HON. JOHN H. WRIGHT,

APPELLEE CIRCUIT JUDGE

REVERSED AND REMANDED

This is an appeal from the Garland County Circuit Court wherein appellant, Lloyd Stone, Jr. was tried and found guilty of manufacturing methamphetamine and sentenced to twenty-seven years' imprisonment. On September 17, 1998, investigator Cory DeArmon, accompanied by investigator Danny Wilson, went to the home of appellant without a warrant. DeArmon testified that they had received some complaints and conducted surveillance on appellant's residence. When the officers knocked on the door, appellant answered. DeArmon testified that they could smell a strong odor of what they believed to be the manufacturing of methamphetamine. DeArmon requested appellant's consent to search the residence, but appellant first called attorney Hubert W. Alexander, Jr. The officersfollowed appellant inside the house while he called the attorney.

A dispute arose as to whether Alexander gave the investigator consent to search the premises, or whether appellant denied access to his premises for a search. Mr. Alexander denied granting permission for a search or directing appellant to do so, stating that DeArmon told him that he had already found enough to charge appellant with attempt to manufacture methamphetamine. The premises were nevertheless searched whereupon appellant was arrested and charged with attempt to manufacture methamphetamine.

A few days before trial, the State amended the information sheet and changed appellant's charge from attempt to manufacture methamphetamine to manufacture of methamphetamine. Counsel for appellant requested a continuance arguing that the amendment changed his trial tactics. The trial court denied appellant's motion. Appellant was subsequently tried and convicted, and it is from this conviction that appellant brings this appeal. We reverse and remand.

On appeal, appellant argues (1) the trial court erred in denying his motion to suppress the evidence seized from his home in a warrantless nighttime search; (2) the trial court erred in refusing to grant a continuance after the amendment of the information just before trial; (3) the trial court erred in permitting the introduction of test results from the state crime laboratory on a sample that the State could not show had not been contaminated or otherwise made unreliable; (4) the trial court failed to provide appellant an impartial forum for his trial; (5) the trial court erred in denying appellant's motion for directed verdict for failure of proof; and (6) the trial court erred in refusing to give the portion of AMCI 2d 6405, based on Ark. Code Ann.§ 5-64-101(m) (Repl. 1997) that excludes the production of a controlled substance for personal use from the definition of manufacturing.

1. Sufficiency of the evidence

Double-jeopardy principles require the court to consider the sufficiency argument first. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000); see Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Appellant argues the trial court erred in denying appellant's motion for directed verdict for failure of proof. Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001); see also Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in light most favorable to the State. Id. Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture and is sufficient to compel a conclusion one way or the other. Ethyl Corp. v. Johnson, 345 Ark.476, 49 S.W.3d 644 (2001). It is not the appellate court's place to try issues of fact; rather, the court simply reviews the record for substantial evidence to support the jury's verdict. Ethyl Corp., supra. If there is substantial evidence supporting the conviction, it must be affirmed on appeal. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998).

Here, we have ample evidence to support appellant's conviction. At trial, the State presented evidence that components used to manufacture methamphetamine and methamphetamine itself were found in appellant's trailer. Investigator DeArmon testified as to the contents found in appellant's trailer. Forensic chemist, Veronica Norris, testified that the contents she tested was methamphetamine. We affirm on this point.

2. Motion to Suppress

Appellant contends that the trial court erred in denying his motion to suppress the evidence seized from his home in a nighttime search because there was no consent given. In our view, the trial court's denial of appellant's motion to suppress is clearly against the preponderance of the evidence and we reverse and remand.

The right to be free from unreasonable searches and seizures is guaranteed by both the United States Constitution and the Arkansas Constitution. This right is personal in nature, Rakas v. Illinois, 439 U.S. 128, 133 (1978), and "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. . . ." Id. (citing Katz v. United States, 389 U.S. 347, 357 (1967)). "[At] the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Holmes v. State, 75 Ark. App. 46, ___ S.W.3d ___ (September 12, 2001)(citations omitted). Specifically, "searches and seizures inside a home without a warrant are presumptively unreasonable [and] . . . [i]n terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house." Holmes, supra (citing Payton v. New York, 445 U.S. 573, 586, 590 (1980)). These principles are "subject only to a few specifically established and well-delineated exceptions."1 Id. (citing Katz, 389 U.S. at 357.)

In reviewing a trial court's ruling on a motion to suppress, the court makes an independent determination based on the totality of the circumstances, viewing the evidence in a light most favorable to the State, and reverses only if the ruling is clearly against the preponderance of the evidence. Mathis v. State, 73 Ark. App. 90, 40 S.W.3d 816 (2001); Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). "Knock and talk" is a method used by police officers to obtain valid consent to search. Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897 (2001). The tactic has been used by police officers when there is information that drugs can be found in a residence but probable cause for a search warrant is lacking. Id. Under Ark. R. Crim. P. 11.1, an officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search and seizure. Hadl v. State, supra. The consent for a warrantless search of an individual's home must be given freely and voluntarily, and the burden rests upon the State to prove by clear and positive evidence that consent was given freely and voluntarily. Id. (citing Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000)).

The State argues that there is evidence to support that Hubert Alexander told DeArmon not to question the appellant and that he had advised appellant to cooperate. TheState also argues that appellant then consented to the search of the residence and led DeArmon to various components used to manufacture methamphetamine. It is our job to view the totality of the circumstances in a light most favorable to the State.

This court defers to the superior position of the trial court to ascertain the credibility of the witnesses. Pyles v. State, 55 Ark. App. 201, 935 S.W.2d 570 (1996). Appellant and Alexander testified that the officer stated that he was there looking for a underage girl. On direct examination, Investigator DeArmon testified that on the day he went to appellant's house, the police "had received complaints and conducted surveillance on that residence." He knocked on the door and appellant answered. DeArmon stated that he could smell a strong odor of what he and the other officer believed to be the manufacturing of methamphetamine; therefore, they asked for consent to search the premises. Appellant asked to talk with an attorney and the officers followed him inside the house.

DeArmon testified that appellant consented to the search. On cross examination, DeArmon testified that he believed appellant invited him in because he said, "Come on, I'm going to call my attorney." He further testified that:

we went just right there in the door right in the living room. He said, "I want to call my attorney" just like I said, and we walked in the house. We walked right there to get the telephone. It's not in my report that he invited us in, but he didn't tell us not to come in. I entered the house but with an invitation. He didn't tell us to stay out. All that is in my report is that he wanted to call his lawyer. I went with him. I mean, he could have went in and got a gun for all I know. He had every right to exclude me from his home at anytime. We walked right there to the living room where he grabbed the phone and that's where we did all the discussing. We passed the threshold. Mr. Stone did not say come in and I followed him. He said I want to use the phone. He never invited me in. He said he wanted [to] use the phone. He wanted to callhis lawyer.

We had been getting drug complaints for these premises for quite a while. We had been doing some surveillance for several months. After several months I chose that time to come in at night without a warrant. I had checked FBI records of some description as recently as September 14, but I waited until September 17 at night without a warrant to follow it up. I don't think I should give away my investigative tactics in open court. After all of this investigation and all this time I picked this evening and went without a warrant, at night, because I received fresh information and I wanted to follow up at that point. That fresh information does not appear in my file anyplace. I did not attempt to get a warrant. I did not go over there with the intent to arrest him. I do not recall telling Mr. Alexander [that] I had already seen enough to arrest the defendant. We were just standing there at the threshold. . . . My justification for entering the premises of Mr. Stone that evening was that I was following up on complaints. . . . I had fresh information, I was investigating a drug complaint. (Emphasis added.)

Rule 3.1 of the Arkansas Rules of Criminal Procedure allows an officer lawfully present in any place to stop and detain any person he reasonably suspects has or is about to commit a crime. Furthermore, Rule 3.4 allows that officer, if he reasonably suspects the person he stopped or detained is armed or presently dangerous, to search the outer clothing of the person and the immediate surroundings for a weapon or other dangerous thing that may be used against him or others. However, this search may in no event be more extensive than is reasonably necessary to ensure safety.

Here, the officers did not have a search warrant when they went to appellant's home, nor did any of the exigent circumstances exist to warrant the search of appellant's home. Investigator DeArmon conceded that he knocked on the door and asked appellant's consent to search the premises. He further admits that he passed the threshold, and while it is true that the officer may have been afraid for his safety, we conclude that DeArmon went beyondthat which was reasonably necessary to ensure his safety. Assuming that the investigator believed that Stone possessed a gun and the focus of concern was for safety, Stone was outside of the house when the investigator came into contact with him. As such, accepting as fact, arguendo, that Rule 3.1 was triggered, the officers could only search, under Rule 3.4, "the outer clothing of [Stone] and the immediate surroundings." Inasmuch as it is uncontroverted that DeArmon was completely out of appellant's house, to affirm based on these rules would be contrary to the mandate in Rule 3.4 that "[i]n no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer and others." See Holmes v. State, 75 Ark. App. ___, ___ S.W.3d ___ (September 12, 2001). Accordingly, we conclude that the trial court's decision was clearly against the preponderance of the evidence, and we reverse and remand.

3. Denial of a Continuance

Appellant argues that the trial court erred in refusing to grant him a continuance after the amendment of the information just before trial. Because we have reversed and remanded the case, the issue is moot.

4. Results of crime lab testing

Appellant further argues that the trial court erred in permitting the introduction of test results from the state crime lab on a sample that the State could not show had not been contaminated or otherwise made unreliable. Appellant contends that the sample had gone to the lab as a liquid, and all the liquid had evaporated before any test had been administered. Specifically, appellant refers to the testimony of Mrs. Norris, a state crime lab chemist who administered testing on the evidence seized from appellant's home.

Appellant's counsel objected to the establishment of the witness as an expert. However, the court allowed her to testify as an expert in the area of forensic chemistry. Appellant was even allowed to voir dire the witness as it related to her experience and training. Appellant contends that the witness's testimony contained "numerous errors . . . many of which would be obvious to high school students," that she was "unreliable," and that her testimony was "patently ridiculous."

Appellee correctly opines that appellant is not challenging the sufficiency of the evidence but the weight of it, and that is a matter for a jury to decide. See Morgan v. State, 33 Ark. 294, 971 S.W.2d 219 (1998). Therefore, this argument is without merit.

5. Impartial forum

Appellant argues that the trial court failed to provide appellant an impartial forum for his trial. This is alleged because appellant feels that the court "seemed hostile to the efforts of appellant to defend himself." Specifically, appellant points to the court's sua sponte interruptions of counsel during cross-examination of the State's witness several times. Appellant notes that the court repeatedly interfered with his examination of Ms. Norris while allowing the State to "drone through the same material with three witnesses, each repeating what the other said about the process of making methamphetamine." In its brief, the State points to the fact that appellant's argument contains no citations of authority to support hisclaim, and thus, no error has been alleged.

Judges are presumed to be unbiased and a party seeking disqualification bears a substantial burden in proving otherwise. Schwede v. State, 49 Ark. App. 87, 896 S.W.2d 454 (1995). A trial court has broad discretion in fulfilling its requirement to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence. See Ark. R. Evid. 611(a) (2000); Shaver v. State, 37 Ark. App. 124, 826 S.W.2d 300 (1992). This court does not consider arguments without citations to authority, unless it is apparent without further research that the point is well taken. Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000). Nevertheless, even assuming that appellant's point can be fairly characterized as a claim of error due to bias on the part of the trial court, the point is not preserved because it was not argued to the trial court. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).

Appellant objected to the introduction of testimony on the grounds that it was cumulative. However, in each case, the State was qualifying the witness to testify as an expert. Therefore, the testimony was not cumulative, but necessary in order for each witness to testify as to the evidence presented in the case. Counsel for appellant objected arguing that they had done "this about three times" when the State questioned witness Mr. Turner about what was significant with respect to his training. The court stated, "[w]ell, we haven't done it with this witness though." As appellee duly points out, appellant cites no authority to support his argument, nor was the point preserved for appeal. Therefore, we find this argument is also without merit.

6. Jury Instruction

Finally, appellant argues that the trial court erred in refusing to give the portion of AMCI 2d 6405 based on Ark. Code Ann.§ 5-64-101(m) (Repl. 1997) that excludes from the definition of manufacture, the production of a controlled substance for personal use. Ark. Code Ann.§ 5-64-401(a) (Repl. 1997) provides that "it is unlawful for any person to manufacture . . . a controlled substance." Manufacture means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance . . . by means of chemical synthesis, or by a combination of extraction and chemical synthesis." Ark. Code Ann. section 5-64-101(m) (Repl. 1997). The term "manufacture" does not include "the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging . . ." Id.

Appellant argues that the trial court erred by refusing to give his proffered instruction concerning the personal use exception. A defendant is entitled to an instruction only where the evidence supports it. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998). While appellant may argue that the drugs were for his personal use, the trier of fact does not have to believe him. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000).

The appellant claims that this instruction should have contained the "personal use exemption" language from the AMCI 2d 6405. Implicit in the appellant's argument is his contention that a person cannot be charged with manufacture of methamphetamine if that substance is manufactured for the person's own use. This is incorrect. "As we explained in Patty v. State, 260 Ark. 539, 542 S.W.2d 494 (1976) and Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975), cert. denied, 430 U.S. 931 (1977), the personal use exemption applies onlyto the preparation or compounding of a controlled substance. It is not applicable when other means of manufacture have been used." Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). " In State v. Childers, 41 N.C. App. 729, 255 S.E.2d 654 (1979), the North Carolina court made this cogent observation:

The plain meaning of the exception is to avoid making an individual liable for the felony of manufacturing a controlled substance in the situation where, being already in possession of a controlled substance, he makes it ready for use (i.e., rolling marijuana into cigarettes for smoking) or combines it with other ingredients for use (i.e., making the so-called `Alice B. Toklas' brownies containing marijuana).

Other courts have recognized that the personal use exception does not apply to the creation of the controlled substance, but to the preparation or compounding of a substance already in existence." Id. (citing State v. County Court for Columbia County, 82 Wis.2d 401, 263 N.W.2d 162 (1978); People v. Pearson, 157 Mich. App. 68, 403 N.W.2d 498 (1987)).

There is abundant evidence in this case that, irrespective of whether the appellant made personal use of his product, he created the product, manufacturing it by means other than mere preparation or compounding. Thus, the personal use exception is not applicable, and the trial court was correct to refuse the instruction. We affirm on this point.

Vaught, J., agrees.

Pittman, J., concurs.

1 See, e.g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); Chimel v. California, 395 U.S. 752 (1969) (interest in the officers' safety justifies search incident to an arrest); Michigan v. Tyler, 436 U.S. 499, 509 (1978) ("compelling need for official action and not time to secure warrant" justifies warrantless entry of burning building). The Court in Illinois v.Rodriguez, 497 U.S. 177 (1990) stated that "[T]he Court has often heard, and steadfastly rejected, the invitation to carve out further exceptions to the warrant requirement for searches of the home because of the burdens on police investigation and prosecution of crime. Our rejectionof such claims is not due to a lack of appreciation of the difficulty and importance of effective law enforcement, but rather to our firm commitment to the `view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.'" Illinois v. Rodriguez, 497 U.S. at 191-92 (citations omitted).