ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

GLENN ADOLPH WILLIAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1143

September 4, 2002

APPEAL FROM THE FULTON COUNTY CIRCUIT COURT

CR-2000-42-1

HON. JOHN DAN KEMP, JR., JUDGE

AFFIRMED

A jury convicted appellant of manufacture of a controlled substance (methamphetamine), possession of a controlled substance with intent to deliver (methamphetamine), and possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced to forty years, forty years, and twenty years respectively, with the sentences to run consecutively. On appeal, he contends that there is insufficient evidence to support the convictions and that the trial court erred in denying his motion to suppress. We affirm.

In the early morning hours of June 27, 2000, Chief Michael Davis of the Mammoth Spring Police Department approached a parked car in an alley behind appellant's residence. Chief Davis asked the occupant, Jeffrey McConnaha, for permission to search his vehicle. Chief Davis found a jar of muriatic acid and a can of Coleman fuel; he also noticed an odd smell in the car and alley, which resembled an odor he had smelled in the vicinity of methamphetamine laboratories. McConnaha told Chief Davis that he had been waiting for appellant to return to his residence. Hestated that he had an agreement with appellant that he would provide the components for making methamphetamine and appellant would produce it at his apartment or another site and that they would split the finished product. After McConnaha was arrested and interviewed, Davis conveyed the information to Chief Investigator Scott Russell of the Sixteenth Judicial District Task Force, who prepared an affidavit for search warrant. A search warrant was issued and the officers recovered substances suspected to be drugs, as well as numerous items of paraphernalia and ingredients used in the manufacture of methamphetamine.

At trial, McConnaha testified that he was waiting to give appellant the fuel and acid in exchange for two eight balls of methamphetamine when he was stopped by police. He indicated that he had been at appellant's apartment several times to assist appellant in the manufacturing process, most recently the previous day to deliver pseudoephedrine tablets. He had seen a pill soak taking place at appellant's apartment, and McConnaha had obtained methamphetamine from appellant previously. In his statement to police, McConnaha also indicated that appellant would go to "Richard's" to complete the final manufacturing process.

The State introduced the statement of Rhonda Mohlke who was staying at appellant's apartment at the time the search warrant was executed. She stated that she observed drug activity in the apartment. She indicated that a guy named "Jeff" had been to appellant's apartment three or four times while she was staying there. On one occasion, Jeff brought two bottles of Heat and three or four boxes of decongestant tablets to appellant, and they talked about "making the stuff." She stated that appellant told Jeff that he would have to go down south to see Richard. Mohlke also observed them smoke something out of foil that had a strong odor. Mohlke also stated that a lady had brought pills to appellant on one occasion and asked to trade it for "smoke." Her statement also indicated that appellant had put some marijuana in his recliner the night before the search, whichwas recovered during the search. In addition, appellant told her that the closet closest to his apartment was his. She also testified that she had seen appellant on the morning of the search with a container attached to a lid that resembled the one recovered during the search just outside of appellant's apartment.

Sufficiency of the Evidence

We first address appellant's contention that the evidence was insufficient to support his convictions. We consider sufficiency of the evidence before addressing other alleged trial errors in order to preserve a defendant's right to freedom from double jeopardy. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict, and will affirm if there is any substantial evidence to support the finding of guilt. Coon v. State, 76 Ark. App. 250, 65 S.W.3d 889 (2001). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other, inducing the mind to pass beyond mere suspicion or conjecture. Id. The evidence may be either direct or circumstantial. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every other reasonable conclusion is for the jury to decide. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). The credibility of witnesses is an issue for the jury. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). The jury is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

Appellant was convicted of three drug-related offenses. In his motion for directed verdicton the manufacturing charge, appellant argued as follows:

On appeal, appellant argues that the evidence is insufficient because the State failed to adequately corroborate the testimony of McConnaha (an admitted accomplice) and to place appellant at the scene of the manufacture. We cannot reach appellant's argument that the State failed to corroborate McConnaha's testimony because it was not raised below. The requirement that a defendant make a specific directed-verdict motion extends to any challenge to the sufficiency of the evidence corroborating an accomplice's testimony, and the failure to challenge the sufficiency of accomplice-corroboration evidence in a directed-verdict motion at trial precludes appellate review on that ground. Hutts v. State, 342 Ark. 278, 28 S.W.3d 265 (2000).

Appellant also makes the argument, which he did preserve, that there is insufficient evidence to support the manufacturing conviction because the State failed to produce evidence connecting appellant to the crime. We disagree. Appellant concedes that the apartment belonged to him. The testimony of Jeffrey McConnaha and statement of Rhonda Mohlke both indicated that appellant had been at his apartment the night before the search took place. Officer Scott Russell testified that appellant's apartment contained "basically a full blown meth lab," elaborating that there were enough items to make methamphetamine. He also indicated that one jar recovered was a reaction vessel and that they were in the process of making methamphetamine. McConnaha testified that when he was stopped by police outside of appellant's apartment, he was waiting to deliver Coleman fuel and muriatic acid to appellant in exchange for methamphetamine. His statement to police provided that appellant had gone to Richard's house to smoke off the powder. It also indicated thathe had an agreement with appellant that he would provide ingredients to appellant for the manufacture and that appellant would manufacture the methamphetamine and they would split the final product. He testified that he had been at appellant's apartment several times to assist appellant in the manufacturing process; McConnaha had been to appellant's apartment the day prior to his arrest to deliver pseudoephedrine tablets and saw a pill soak taking place. Mohlke's statement confirmed that drug activity was going on in appellant's apartment. She stated that a guy named Jeff had brought appellant two bottles of Heat and three or four boxes of pseudoephedrine tablets, and that they talked about making "the stuff."

Appellant relies on the case of Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), for reversal. Harris, however, is distinguishable because there the items required to manufacture were found in a van in a self-storage unit. The only proof linking the Harrises to the van was an old registration bearing the Harris's name and that Mrs. Harris had ordered chemicals from a supply house, and one or two fingerprints of Mr. Harris were found in the van. Unlike Harris, there is evidence that the apartment where the components were found belonged to appellant; Mohlke saw McConnaha bring tablets and Heat to appellant; Mohlke denied that the items seized belonged to her and there was no indication anyone else lived there; Mohlke saw appellant with a container that looked like the one seized which contained methamphetamine; and Mohlke heard McConnaha and appellant talking about making "the stuff" and going down to see Richard. We hold that the State presented sufficient evidence to support a conviction for manufacture of a controlled substance.

Appellant next argues that there is insufficient evidence to support his conviction of possession of methamphetamine with intent to deliver. At trial, appellant argued that there was no "useable amount of methamphetamine in the apartment itself which was under [appellant's] control" and that there was "no evidence that [appellant] intended to transfer any methamphetamine foranything of value."

During the search of appellant's residence, officers found a round plastic vial containing an off-white, rock-like substance taped to the lid of a coffee-creamer container on a shelf in the hallway just outside appellant's apartment. The substance was determined to be .604 grams of methamphetamine hydrochloride. A one-half gallon Mason jar containing a bi-layered solution was found in the kitchen against a wall near a china hutch. The witness from the state crime lab testified that the methamphetamine "powdered out" from the solution would weigh between 1.6 and 1.7 grams. Officer Scott Russell testified that numerous ziploc baggies with corners missing were found on a writing table beside the couch. He elaborated that it is common for methamphetamine that is for sale to be packaged in ziploc baggies with the corner removed. There is a rebuttable presumption that a person possesses a stimulant drug with the intent to deliver if he possesses more than 200 milligrams of the drug. Ark. Code Ann. § 5-64-401(d) (Repl. 1997). The amount of methamphetamine found inside of appellant's apartment and in the hallway outside his apartment is enough to create the presumption that appellant had the intent to deliver.

Under our law, the State is not required to prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997). Constructive possession can be implied when the controlled substance is in the joint control of the accused and another. Id. Joint occupancy, though, is not sufficient in itself to establish possession or joint possession. Id. There must be some additional factor linking the accused to the contraband. The State must show additional facts and circumstances indicating the accused's knowledge and control of the contraband. Id. When seeking to prove constructive possession, the State mustestablish (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Id.

Knowledge and control can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. See Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). Appellant concedes that the apartment belonged to him. Rhonda Mohlke, who had been staying at appellant's apartment for less than two weeks at the time of the search, gave a statement that the container attached to a lid which was seized looked like the same container she had seen appellant leave with earlier that day. The mason jar was found beside a china hutch, apparently in plain view. The fact that the drugs were found in common areas of the residence has been considered a linking factor to establish constructive possession. See Sweat v. State, 25 Ark. App. 60, 752 S.W.2d 49 (1988). Mohlke stated the "stuff," the jar, and the paraphernalia found during the search did not belong to her. She further indicated that the closet outside of appellant's apartment where numerous items of contraband were found belonged to appellant. In addition, she stated that she saw appellant and Jeff smoke something out of foil. The determination of credibility of witnesses is for the jury to decide. Polk, supra. We hold that there is sufficient evidence to support appellant's conviction for possession of a controlled substance (methamphetamine) with the intent to deliver.

Lastly, appellant argues that the evidence is insufficient to support his conviction for possession of drug paraphernalia with the intent to manufacture methamphetamine. Appellant argued below, as he does on appeal, that there is no connection between him and the items of paraphernalia seized.

There were numerous items of drug paraphernalia found throughout appellant's apartment, many of which were in common areas and in plain view. Various drug paraphernalia were alsofound in the closet outside appellant's apartment, which Mohlke stated belonged to appellant. McConnaha testified that the day before he was arrested he brought appellant pseudoephedrine tablets to make the methamphetamine. Mohlke stated that McConnaha brought two bottles of Heat and three or four boxes of decongestant tablets to appellant. Bottles of Heat and pseudoephedrine tablets were found in appellant's apartment. Officer Russell testified that these are items used in the manufacture of methamphetamine. Mohlke also indicated that the items of paraphernalia were not hers. Two spoons and a vial containing methamphetamine residue were found in the recliner, which Mohlke referred to as appellant's recliner. She indicated that she had seen appellant place a little brown bag in his recliner the night before the search was conducted. We hold that there is sufficient evidence to support appellant's conviction for possession of paraphernalia with intent to manufacture methamphetamine.

Motion to Suppress

Appellant contends that the trial court erred in denying the motion to suppress because the affidavit in support of the search warrant was based entirely on hearsay evidence. When this court reviews a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000). We will reverse a trial court's ruling on a motion to suppress only if the ruling was clearly erroneous or clearly against the preponderance of the evidence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given to the testimony, we defer to the trial judge's superior position. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992).

The facts set out in the affidavit of Officer Scott Russell of the Sixteenth Judicial Drug Task Force included, in part, the following: (1) Chief Michael Davis of the Mammoth Springs Police Department had been receiving information for the past several months that Glen Williams wasmanufacturing methamphetamine at his residence in Mammoth Springs and selling it from his home; (2) Glen Williams refused Chief Davis's request to consent to a search of his residence on two occasions when investigating complaints1; (3) the Fulton County Sheriff's Department had been receiving information that Glen Williams was selling and manufacturing methamphetamine from his residence; (4) Glen Williams had been arrested on numerous occasions for drug related offenses; (5) Officer Russell described the odors associated with clandestine methamphetamine labs and then stated that Chief Davis and Deputy Carroll Traw observed a strong odor in the neighborhood where the traffic stop of Jeffrey McConnaha took place, which is in very close proximity to appellant's residence. The affidavit was also based on information provided by Jeffrey McConnaha, who was arrested during a traffic stop on June 27, 2000, outside of appellant's residence and charged with possession of drug paraphernalia with intent to manufacture methamphetamine.

The affidavit provided that at the time of his arrest, McConnaha was in possession of one gallon of Coleman fuel, which he stated he was delivering to appellant to "soak the pills," and in possession of a glass jar containing muriatic acid, which he was also delivering to appellant to use in the manufacture of methamphetamine. McConnaha stated that he was going to trade the items for two "eight balls" of methamphetamine. He also stated that on Monday, June 26, 2000, he delivered a large amount of ground-up ephedrine tablets to appellant, who told him to return that night to pick up the methamphetamine. The affidavit provided that during his interview, McConnaha stated that he regularly went to appellant's residence, and that every time appellant hadpills soaking in alcohol to remove the ephedrine. He indicated that appellant went to "Richard's" house out in the woods to convert the liquid methamphetamine into powder. The affidavit also provided that during the traffic stop of McConnaha near appellant's apartment, Officer Davis and Deputy Traw observed a strong odor in the area, presumably consistent with a clandestine methamphetamine laboratory.

Appellant first argues that McConnaha's hearsay statement is unreliable because he is an admitted accomplice, and therefore the affidavit is unreliable. When an affidavit for a search warrant is based, in whole or in part, on hearsay, the affiant must set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained. Ark. R. Crim. P. 13.1(b). In deciding whether to issue the warrant, the magistrate should make a practical, common-sense determination based on the totality of the circumstances set forth in the affidavit. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). The affidavit for a search warrant need not contain facts establishing the veracity and reliability of nonconfidential informants such as police officers, public employees, victims, and other witnesses whose identity is known. Id. (citing State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999)). Thus, "no additional support for the reliability of witnesses is required where the witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected." Moore v. State, 323 Ark. 529, 539, 915 S.W.2d 284, 290 (1996)(citing Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1993)). This applies even when the citizen informant is not a "model citizen." Id. In the present case, McConnaha was not a confidential informant, thus his reliability need not be established in spite of the fact that he was not a model citizen. Considering the information provided by McConnaha, along with other facts contained in the affidavit above, we cannot say that the trial court's finding of probable cause was clearly erroneous.

Appellant also contends that Officer Russell attempted to mislead the court to believe (1) that Chief Davis and Deputy Traw observed a strong odor of ethyl ether in the vicinity of appellant's apartment, and (2) that Russell conducted the interview of McConnaha. In his motion to suppress, appellant failed to allege that the affiant provided misleading information, and we do not consider arguments raised for the first time on appeal. Foster v. State, 66 Ark. App. 183, 991 S.W.2d 135 (1999).

Affirmed.

Jennings and Crabtree, JJ., agree.

1 The assertion of one's constitutional right not to be subjected to a warrantless search should not be a factor that would support issuance of a search warrant. However, this argument was not raised in appellant's motion to suppress. We cannot consider arguments, even constitutional ones, raised for the first time on appeal. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002).