NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION I

BILLY HAROLD CHATMAN,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-1037

JUNE 19, 2002

APPEAL FROM THE FULTON COUNTY CIRCUIT COURT,

NO. CR97-63,

HON. JOHN DAN KEMP, JUDGE

AFFIRMED

After receiving information that methamphetamine activity may be occurring at the home of Carl Johnson, Johnson's parole officer, Gary Clayton, accompanied by police, went to Johnson's residence to investigate. Appellant Billy Chatman was present at this residence. Upon smelling a strong odor that they believed to be common to methamphetamine labs, the police then searched the house, finding equipment and ingredients that are used in the manufacture of methamphetamine.

Chatman appeals from his conviction by a jury of attempt to manufacture methamphetamine and possession of drug paraphernalia, arguing several reasons why the trial court erred in failing to grant his motions for directed verdicts. He contends that (1) there was not sufficient evidence, independent of interested witnesses; (2) there was no evidence that the propane tank contained anhydrous ammonia; (3) a propane tank containing ammonia is itself useless in manufacturing methamphetamine; (4) the two pans that Marcia

Stultz, a State's witness, observed him working with in the kitchen were not introduced into evidence; (5) Stultz testified that she smelled no odor in the residence even though she testified that she was in the kitchen where the production was allegedly occurring; and (6) he did not actually possess any of the evidence in the case and that constructive possession could not be used because the evidence was not immediately and exclusively accessible to him and subject to his control.

"`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 ..." Ark. Code Ann. § 5-64-101(m) (Repl. 1997). A person commits the offense of criminal attempt if, "acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result." Ark. Code Ann. § 5-3-201(a)(2)(b) (Repl. 1997). "It is unlawful for any person to manufacture, deliver, or possess with intent to deliver a controlled substance." Ark. Code Ann. § 5-64-401(a) (Repl. 1997). "`Drug paraphernalia' includes all `equipment, products, and materials of any kind which are used, intended for use, or designed for use, in ... manufacturing, ... producing, processing, ... a controlled substance...'" Ark. Code Ann. § 5-64-101(v) (Repl. 1997).

The test for motions for directed verdict is whether the verdict is supported by substantial evidence, direct or circumstantial. Ford v. State, 75 Ark. App. 126, 55 S.W.3d 315 (2001). Substantial evidence is evidence of sufficient certainty and precision to compela conclusion one way or another and pass beyond mere suspicion or conjecture. Id. Circumstantial evidence may constitute substantial evidence, but it must exclude every other reasonable hypothesis consistent with innocence. Id. Whether the evidence excludes every hypothesis is left to the jury to determine. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id. We make no distinction between direct and circumstantial evidence when reviewing the sufficiency of the evidence. Id. Neither do we pass on the credibility of the witnesses; that duty is left to the trier of fact. Id.

A crock pot, "warm to the touch," found within the residence, contained residue that tested positive for methamphetamine. Scales, a brush, a measuring spoon, and a calibration tube were found in a Tupperware container. Also in this container, a plastic bag containing a white powder that tested positive for pseudoephedrine and triprolydine was discovered. Jeffrey Taylor, an expert from the state crime lab, testified that these chemicals were the starting chemicals for methamphetamine production.

Marcia Stultz testified that she observed Chatman cooking in Johnson's residence and that he told her that he was cooking methamphetamine to sell. Carleton Pennington testified that, while Chatman and he shared a jail cell, Chatman told him that he was cooking methamphetamine at Johnson's house. Carl Johnson, owner of the residence, testified that the lab equipment belonged to Chatman. Chatman argues that these witnesses lacked credibility because of their interest in the case. He contends that Stultz was an interested witness because she was charged with the same crimes as Chatman, possession of drugparaphernalia and attempt to manufacture methamphetamine. He contends that Johnson's testimony was not credible because he was a co-defendant in the case. He contends that Pennington was a biased witness because Pennington's wife had allegedly been living with Chatman.

Insofar as Chatman is challenging the sufficiency of evidence independent of accomplice testimony, Chatman waived this argument by his failure to request the trial court to declare the witnesses as accomplices as a matter of law or submit the issue to the jury for determination. See Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996). Insofar as Chatman is challenging the credibility of the witnesses' testimony because of their interest in the case due to their respective charges and motives, this challenge must fail, as this court does not pass on the credibility of the witnesses; that duty is left to the trier of fact. Ford, supra.

Chatman next argues that there was no evidence that he possessed a propane tank found at the residence or that the tank contained anhydrous ammonia. There is substantial evidence that Chatman possessed the propane tank and that the propane tank contained anhydrous ammonia. David Wilkerson, the former administrator of the drug task force, testified that the propane tank found at the residence had blue residue on the valve and that he could smell the odor of anhydrous ammonia. He stated that Chatman admitted that the propane tank was his, but that he used it in his job of repairing refrigeration systems in motor homes. The current drug task force administrator, Dale Weaver, testified that, in his experience with methamphetamine labs, anhydrous ammonia will turn the tank valve "bluishgreen colors." Jeffery Taylor, the state crime lab expert, testified that "when you see blue corrosion around the valve at the top of these tanks, that's a sure sign that it has or had ammonia gas stored in it. I don't know of any other substance that would do that, including propane or Freon." He further explained that anhydrous ammonia is used in the reaction process to produce methamphetamine. Brad Schauffler, of the Fulton County Sheriff's Office, testified that the propane tank had a blue ring around it and that Chatman told him that the tank was his and requested a receipt for it. While we recognize that the ammonia itself may be useless in the manufacture of methamphetamine, there is substantial evidence, in light of the other equipment found at the residence and the testimony that anhydrous ammonia was a necessary component of the type of methamphetamine manufacturing that was occurring at the residence, that the ammonia was used in the manufacturing. Therefore, we hold that there is substantial evidence to support the conviction for possession of drug paraphernalia.

Chatman next challenges the testimony of Stultz, contending that her testimony that she saw him cooking methamphetamine was not credible because she testified that she smelled no odor even though she testified that she was in the kitchen where she alleged that the manufacturing occurred. Again, this challenge is to the credibility of a witness and credibility is for the trier of fact to determine. See Ford, supra. He further contends that the pans in which Stultz testified that he was cooking methamphetamine were not introduced into evidence. These pans were not included in the list of seized items from the residence, nor were they introduced at trial. However, even without the introduction of these pans, theevidence to support his convictions is substantial.

Lastly, Chatman argues that he did not actually possess any of the evidence in the case and that constructive possession could not be used because the evidence was not immediately and exclusively accessible to him and subject to his control. There is substantial evidence that Chatman admitted to actual possession of the propane tank; thus, constructive possession is inapplicable in light of his admission. In support of the attempted manufacturing conviction, the necessary ingredients for the manufacture of methamphetamine and equipment commonly used in the production were recovered at the residence. Constructive possession is sufficient to support a conviction for possession of contraband. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). The State must establish that (1) the accused exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Id. However, Chatman's conviction was for attempted manufacture of methamphetamine, not for possession of contraband. Nevertheless, there was substantial evidence of such force that Chatman's knowledge and control could be inferred from the circumstances without resorting to speculation and conjecture. Stultz testified that she observed Chatman cooking, and that Chatman told her that he was cooking methamphetamine in order to sell it. Pennington testified that Chatman admitted to him that he was cooking methamphetamine at the Johnson residence. Johnson testified that the equipment found at the residence belonged to Chatman. Chatman admitted ownership to the propane tank that contained anhydrous ammonia, an ingredient of methamphetamine. We hold that there was substantial evidence to supportChatman's conviction for attempted manufacture of methamphetamine and possession of drug paraphernalia; therefore, we affirm.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.