NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION I

GEORGE DAVID PLUMLEY,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-1105

SEPTEMBER 11, 2002

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT,

NO. CR99-341-2A,

HON. JAMES SCOTT HUDSON,

JUDGE

AFFIRMED

The Miller County Sheriff's Department executed a search warrant on February 12, 1999, discovering methamphetamine, guns, and currency in a residence shared by David Plumley and Lillian Simpson. Both parties were arrested, and Plumley was convicted by a jury of possession of methamphetamine with intent to deliver. Plumley appeals, contending that there was insufficient evidence to sustain a conviction, that the prosecutor's comments concerning his right to remain silent constituted prejudicial error, and that the trial court erred in denying his motion to suppress evidence. We affirm.

Sufficiency of the Evidence

Plumley contends that the trial court erred in denying his motions for directed verdict because there was insufficient evidence to support his conviction. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). The test for such motions is whether the verdict is supported by

substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. 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.

Actual or physical possession is not required to prove guilt of possession of a controlled substance. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994). Constructive possession is sufficient and can be implied when the controlled substance is in joint possession of the accused and another. Id. Joint occupancy of a residence, though, is not sufficient by itself to establish joint possession. Id. The State must show additional facts or circumstances indicating that the accused had knowledge and control of the controlled substance. Id.

Though there was testimony that other people had access to the refrigerator in which the methamphetamine was found, Plumley testified that he knew that the methamphetamine was in the refrigerator and that he consented to possessing it for a friend while the friend was traveling. This testimony is sufficient to establish that Plumley had knowledge that the methamphetamine was in the residence and that he had control of it: temporary possession is still possession, provided the requisite knowledge and control elements are met.

As part of his sufficiency challenge, Plumley additionally contends on appeal that the testimony of Simpson, the female arrested with Plumley and charged as a co-defendant, cannot support the conviction because it was uncorroborated accomplice testimony. However, Plumley did not make this argument as a basis for his directed verdict motion atthe close of the State's evidence or at the close of all evidence. A party cannot change his grounds for an objection or motion on appeal, and the parties are bound by the scope and nature of their arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997) (holding that appellant did not argue the trustworthiness of an accomplice's testimony as a basis for his motion for directed verdict; thus, he could not base his sufficiency challenge on such argument on appeal).

Possession of more than 200 milligrams of methamphetamine creates a rebuttable presumption that such possession is with intent to deliver. See Ark. Code Ann. § 5-64-401(d) (Supp. 2001). The officers recovered more than nineteen grams (19,000 milligrams) of methamphetamine from Plumley's residence. Additionally, a notebook containing a recipe for methamphetamine was discovered, and Plumley admitted ownership of the notebook. Simpson identified the handwriting in which the recipe was written as Plumley's.

We hold that the evidence is sufficient to support Plumley's conviction for possession of methamphetamine with intent to deliver.

Prosecutor's Comments

Plumley contends that the prosecutor's comments during closing argument violated Doyle v. Ohio, 426 U.S. 610 (1976), which prevents the State from using a defendant's post-arrest, post-Miranda warning silence for impeachment purposes. Plumley had testified during trial that he had withdrawn $2000 in currency from his bank, in order to purchase electrical supplies for a house he had just rented. He testified that the $1164 seized from his residence was the remainder of this withdrawn money. During closing argument, theprosecutor commented that this was the first time that Plumley had offered such an explanation. Plumley objected contending that the prosecutor's argument constituted a commentary on Plumley's right to remain silent, but the court overruled, finding that Plumley was not prejudiced by the comment.

In Bivins v. State, 286 Ark. 314, 691 S.W.2d 847 (1985), the supreme court refused to find a Doyle violation when the prosecutor commented during closing argument that an explanation proffered by the defendant at trial had not been offered before. The Bivins prosecutor stated that:

[Mr. Bivins] heard the testimony today about the socks, and all of a sudden it became important that he get those socks wet and get them dirty outside. So, that's when we come up with the story about throwing up, a story that he never had told anybody else before. It's because he's not sitting back there in that room. He can hear what everybody else says and get his story straight.

Given our supreme court's refusal to hold that the direct accusation of fabrication in Bivens constituted a Doyle violation, we cannot say that the indirect accusation in the case at bar constitutes such a violation.

Motion to Suppress

Plumley contends that the search warrant affidavit contained no indicia of reliability of the confidential informant and was, therefore, invalid.

The affidavit provided:

This affiant has received information from a source that has proven to be reliable in the past, and provided reliable information that has resulted in arrest, and seizures of property, and narcotics. This source has stated to this affiant that he has observed a large amount of methamphetamine being sold, and possessed in the above described residence, by a white male living there named David. And that there is alsoa white female name unknown in this residence also, this white female has knowledge of the narcotics being sold and used. This source has observed the methamphetamine in the past 24 hrs. This warrant if granted will be served ...... This affiant has approx. 15 years of law enforcement experience, and most of which has been spent in narcotic investigations, and operations.

Arkansas Rule of Criminal Procedure 13.1(b) provides:

If an affidavit or testimony is based in whole or part on hearsay, the affiant or witness shall 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. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

Plumley contends that the affidavit contains only a bare assertion that the informant was reliable, which is insufficient. However, the affiant, Chief Deputy Toby Giles, asserted that the informant had provided reliable information in the past that had led to arrests and seizures of property and narcotics. Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of supplying reliable information or if it is corroborated by independent evidence. United States v. Williams, 10 F.3d 590 (8th Cir. 1993). While information from an anonymous tipster must be sufficiently corroborated, see Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997), this informant was not anonymous: the informant's identity was known to police, as well as the informant's previous record of reliability.

The lack of specific details about the informant's assistance in previous drug cases isnot fatal, as Giles stated more than a mere conclusion of reliability and provided information to show that the informant was worthy of belief - the informant's past reliability and success. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998).

Plumley also contends that the fact that a prior search at his residence had yielded no methamphetamine should have been acknowledged to the magistrate. With respect to omissions in an affidavit, evidence will be suppressed if the defendant establishes by a preponderance of the evidence that: 1) the officer omitted facts knowingly and intentionally, or with reckless disregard; and 2) the affidavit, if supplemented with the omitted information, is insufficient to establish probable cause. Franks v. Delaware, 438 U.S. 154 (1978); State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999). Even with omissions there must be a knowing intent to deceive, or a reckless disregard of truth. Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994), rev'd on other grounds, 514 U.S. 927 (1995). Furthermore, omissions must involve material circumstances which contradict or dispel the incriminating factors in the affidavit. Id.

The prior search of Plumley's residence had yielded no methamphetamine, which was the stated object, but did yield marijuana. There is no evidence that Giles knowingly and intentionally, or with reckless disregard, omitted this fact. When the affidavit is supplemented with this omitted information, the affidavit is still sufficient to establish probable cause; the fact that the prior search did not yield its stated object does not contradict or dispel the incriminating factors in the affidavit.

We hold that the affidavit sufficiently established probable cause and that the trialcourt was correct in denying Plumley's motion to suppress the evidence.

Because there was substantial evidence that Plumley constructively possessed the methamphetamine, the prosecutor's comment during closing argument did not constitute a Doyle violation, and the search warrant affidavit sufficiently established the informant's reliability, we affirm.

Affirmed.

Neal and Baker, JJ., agree.