ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

KENNY WADE WESTERMAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1316

OCTOBER 23, 2002

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

CR-1999-365

HON. MICHAEL MAGGIO, JUDGE

AFFIRMED

Appellant, Kenny Wade Westerman, was convicted of multiple drug and firearm charges, and sentenced to two 300-month sentences and one eighteen-month sentence to be served concurrently in the Arkansas Department of Correction. Appellant raises four points on appeal: 1) that the trial court erred in denying his motion for directed verdict; 2) that the trial court erred in convicting him of possession of a controlled substance (methamphetamine) with the intent to deliver when there was no evidence of methamphetamine present; 3) that the trial court erred in convicting appellant of possession of drug paraphernalia when there was no evidence the scales were drug paraphernalia; 4) that the trial court erred in sentencing appellant to prison terms in excess of those prescribed by the sentencing guidelines. We disagree and affirm.

While driving alone in another individual's truck, appellant stopped at a compliance checkpoint set up by the Arkansas State Police and the Faulkner County Sheriff's Department on the night of May 8, 1999. Deputy Sheriff Tom Mize asked appellant for his driver's license, registration and proof of insurance. Appellant did not provide any of those items and informed the deputy that his driver's license was suspended. Deputy Mize took down appellant's personal information and called it in to the dispatcher, who informed him that there was an outstanding warrant for appellant from Sherwood.1

During the time it took to verify that the warrant was still valid, Deputy Mize noticed a loaded .38 caliber handgun on the floor of the truck, partially exposed under the driver's seat. At that time, he had appellant exit the vehicle. Upon receiving confirmation of the warrant, Deputy Mize took appellant into custody. He then further examined the vehicle and located an unlocked toolbox in the back of the truck. Inside the toolbox were a set of electronic scales in a bag and a plastic storage container containing three squares of an alleged controlled substance believed to be methamphetamine.2 Deputy Mize also found $1,200 in cash on appellant's person. Additionally, appellant was operating the vehicle without a license and liability insurance, and without wearing a seat belt.

Appellant was charged, by information, with having committed the following crimes: simultaneous possession of drugs and firearms in violation of Ark. Code Ann. § 5-74-106 (a Class Y felony); possession with intent to deliver a Schedule II controlled substance (38 grams methamphetamine) in violation of Ark. Code Ann. § 5-64-404(a)(1)(i) (a Class Y felony); possession of drug paraphernalia in violation of Ark. Code Ann. § 5-64-403(c) (a Class C felony);possession of a firearm in violation of Ark. Code Ann. § 5-73-103 (a Class B felony); and three misdemeanor traffic offenses.

A bench trial was held on July 10, 2001. At the close of the State's case, appellant moved for dismissal of all charges, contending that the State had not shown actual or constructive possession or knowledge of the illegal items. In denying the motion, the trial judge held that the State had proven that appellant was in control of the vehicle and that the drugs and gun were in the vehicle. The trial judge denied appellant's renewed motion for dismissal at the close of the evidence because the items in question were in the vehicle which appellant controlled. Appellant was convicted of simultaneous possession of drugs and firearms, possession with intent to deliver a Schedule II controlled substance, and possession of drug paraphernalia. The possession of a firearm charge was dismissed, and the three traffic offenses were merged into the felony convictions. On August 21, 2001, appellant was sentenced to three hundred months in prison on the simultaneous possession of drugs and firearms charge, three hundred months on the possession with intent to deliver charge, and eighteen months on the possession of drug paraphernalia charge; the sentences to be served concurrently.3

Appellant first contends that there is insufficient evidence to support the convictions because the State failed to prove constructive possession. In a non-jury trial, a motion for dismissal is a challenge to the sufficiency of the evidence. Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002). When reviewing a challenge to the sufficiency of the evidence, we will affirm theconviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id. Sufficient evidence, whether direct or circumstantial, is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resort to speculation or conjecture. Id. The long-standing rule regarding the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the finder of fact. See Harshaw v. State, 348 Ark. 62, 71 S.W.3d 548 (2002). When the sufficiency of the evidence is challenged, the court considers only the evidence that supports the guilty verdict, and views the evidence in the light most favorable to the State. Id. at 66, 71 S.W.3d at 551.

The Arkansas Supreme Court has held that it is not necessary for the State to prove literal physical possession of contraband in order to prove possession. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Appellant argues that in order to prove constructive possession the State must establish that he exercised care, control, and management over the contraband, and that appellant knew the items to be contraband. See Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002); Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). However, in Polk, our supreme court recently held that constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Polk, 348 Ark. at 453, 73 S.W.3d at 614. The Polk court held that a single occupant in a borrowed car or a car owned by another person is subject only to the general inquiry for constructive possession and does not benefit from the increased inquiry afforded to those in a joint occupancy situation.4 Id. In the instant case, appellant was the sole occupant ofthe truck, and the loaded .38 caliber handgun was discovered lying in plain view underneath his seat. Therefore, under the Polk analysis, the State established constructive possession of the handgun.

The amphetamine and electronic scales were not located within the cab of the truck, but in the back of the truck inside a closed, but unlocked toolbox. They were not in the immediate proximity of appellant, and no direct evidence was presented that he had exercised any actual dominion or control over the toolbox or any of its contents. Appellant points out that no fingerprints were taken of either the gun, the toolbox or its contents. While this appears more consistent with the factual situation in Boston, supra (in which a conviction was reversed where contraband was found in a suitcase in the trunk of the defendant's car and it could not be shown that he had knowledge of the contents of the suitcase), two other important factors link appellant to the scales and drugs. The handgun was in plain sight on the driver's side floorboard, and the $1,200 cash found on appellant's person was undisputed as being the approximate street value of one of the squares of amphetamine found in the toolbox. Therefore, sufficient circumstantial evidence supports the finding of constructive possession of the drugs and scales.

Appellant contends that the simultaneous possession charge must be premised upon possession of the gun and drugs, and some evidence linking the gun to the drugs. He argues that he neither exercised control over the drugs and scales nor had knowledge of them. As previously discussed, the State presented two critical factors establishing appellant's constructive possessionof the drugs and scales found in the back of the truck: the $1,200 found on appellant's person,5 and the loaded handgun found in plain view protruding from underneath appellant's seat. These links between the money, gun, and drugs, when viewed collectively and in the light most favorable to the State, are sufficient to sustain the simultaneous possession charge.

We next address appellant's contention that the trial court erred in convicting him of possession of a controlled substance (methamphetamine) with the intent to deliver when there was no evidence of methamphetamine present. Appellant points out that State's Exhibit No. 1, the report of the drug analysis by the State Crime Lab, reveals that approximately thirty-eight grams of a substance tested positive for amphetamine hydrochloride, dimethyl sulfone. Count two of the felony information charged appellant with possession of thirty-eight grams of methamphetamine as the basis for possession with intent to deliver a Schedule II controlled substance. Appellant contends that since the substance for which he was charged tested positive for something other than methamphetamine, the conviction for possession with intent to deliver must fail.

Appellate courts will not consider an argument raised for the first time on appeal. See Morgan v. State, 72 Ark. App. 482, 485, 37 S.W.3d 684, 686 (2001). The State asserts that it is difficult to discern whether appellant's claim is actually a challenge to the accuracy of the felony information or a challenge to the sufficiency of the evidence supporting his conviction for possession with intent to deliver. In either case, appellant failed to raise the issue at trial, and is procedurally barred from raising it for the first time on appeal. A challenge to the information must be brought before trial. See Ray v. State, 344 Ark. 136, 40 S.W.3d 243 (2001); McNeese v. State, 334 Ark. 445, 976 S.W.2d 373 (1998). If appellant is challenging the sufficiency of the evidence,specifically that the evidence was insufficient because the substance found in his possession was amphetamine hydrochloride, dimethyl sulfone instead of methamphetamine, he had to specify his challenge in his motion for dismissal. See Ark. R. Crim. Pro. 33.1(c); see also Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). During the trial, appellant never asserted that the State failed to prove that the substance seized was methamphetamine. If he had, the State would have been allowed to amend its information to conform to the proof. Kelch v. Erwin, 333 Ark. 567, 970 S.W.2d 255 (1998).

Appellant also challenges his conviction for possession of drug paraphernalia because there was no evidence that the scales were drug paraphernalia. Appellant did not specify this ground as part of his motion for dismissal as required by Ark. R. Crim. Pro. 33.1(c). See also Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000). Therefore, he is procedurally barred from raising it for the first time on appeal.

Finally, appellant argues that the trial court erred in sentencing him to prison terms in excess of those prescribed by the sentencing guidelines. This issue also has not been preserved for appeal because appellant was required to make a contemporaneous objection to the length of the sentence in order to preserve his challenge that it was excessive. See Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997).

Affirmed.

Neal and Roaf, JJ., agree.

1 It appears that appellant's license had been suspended pursuant to a pending DWI charge in Sherwood, for which there was an outstanding warrant.

2 Upon testing by the State Crime Laboratory, the substance was determined to be three squares of amphetamine hydrochloride, dimethyl sulfone, a Schedule II controlled substance, with a total weight of approximately 38.7 grams.

3 Before addressing the merits of appellant's argument, it should be noted that the notice of appeal and designation of record was neither included in the addendum, nor referenced in the abstract. It is, however, included in the record and was timely filed on September 10, 2001, and the court may go to the record to affirm. See McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001).

4 Joint occupancy of a vehicle, alone, is not sufficient to establish possession or joint possession of contraband found in a vehicle, and the supreme court has set forth the followingadditional factors to consider when there is joint occupancy of a vehicle: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; (5) whether the accused acted suspiciously before or during the arrest. See Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994).

5 An amount which Officer Mize testified equaled the approximate street value of each of the squares of amphetamine.