ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CACR01-874

October 30, 2002

RAYMOND AGENT AN APPEAL FROM CRAWFORD

APPELLANT COUNTY CIRCUIT COURT

[CR99-307-C]

V. HON. FLOYD G. ROGERS, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This case arises from appellant's arrest following a search of a motel room and a pickup truck. A jury convicted appellant of possession of drug paraphernalia with intent to manufacture methamphetamine. The trial court sentenced him to thirty-four months in prison. Appellant argues that the verdict was not supported by substantial evidence and that the trial court erred in correcting his sentence rather than granting him a new trial. We affirm.

In August 1999, Crawford County Sheriff investigators conducted surveillance on a suspected methamphetamine lab at the Alma Inn. Police officers identified appellant as one of the men who exited a motel room where methamphetamine lab items were discoveredduring the execution of a search warrant issued for the motel room and appellant's Nissan pickup truck. The search of the motel room yielded numerous items used to manufacture methamphetamine, including isopropyl alcohol, lighter fluid, starter fluid, a recipe for making methamphetamine, coffee filters, funnels, red phosphorous, rubber gloves, coffee filters with methamphetamine residue, powdered pseudoephedrine, glass jars, and Red Devil Lye. In the bed of appellant's pickup truck, parked in front of the motel room, the police officers found two quart bottles of lighter fluid, rolls of paper towels, a plastic funnel, and a flow filter with tubing. At trial, Officer Jeff Brown, one of the investigating officers, testified that those items can be used in the production of methamphetamine. Police also found two "cookbooks" for manufacturing methamphetamine under the driver's seat of appellant's pickup truck.

Appellant testified at trial that he was driving the Nissan truck, that he spent the night sleeping in the motel room where the items were found, that he had cooked methamphetamine in the past, that the "cookbook" was his, and that he used the items found in his pickup truck to cook methamphetamine, but that he did not intend to cook any methamphetamine that night. He also testified that "probably if [he] hadn't been arrested that day, [he] probably would have cooked again." However, also stated that he was at a turning point in his life. Appellant moved for directed verdict at the close of the State's evidence and renewed the motion at the close of all the evidence.

During closing arguments, the State argued that appellant would be eligible for parole after he had served one-sixth of his sentence. The jury accordingly imposed a sentence of twelve years' imprisonment. Afterwards, appellant moved the trial court for Rule 37 relief. The lower court acknowledged that, as a matter of law, appellant would not be eligible for parole until he had served seventy percent of his sentence, and not after he had served one-sixth of his sentence. The trial court found that the jury probably relied on the State's statement regarding the one-sixth of the overall sentence, and that the jury intended to have appellant serve two years of imprisonment-one-sixth of twelve years. Consequently, the trial court amended appellant's sentence to sixty months with twenty-six suspended, resulting in a total of thirty-four months. Apparently, the trial judge aimed for thirty-four months because seventy percent of that sentence is 23.8 months-after which appellant would become eligible for parole or transfer to community punishment-almost the two years which the jury was found to have intended for appellant. This appeal followed.

I. Sufficiency of the Evidence

Appellant first argues that there is insufficient evidence to support his verdict. We treat motions for directed verdicts as challenges to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). On appeal, we address the sufficiency of evidence first to avoid double-jeopardy implications. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). When reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the appellee and consider only the evidence that supports the verdict. Branscum, supra. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusionwithout having to resort to speculation or conjecture. Id. Circumstantial evidence can be substantial evidence, but must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. The issue of a criminal defendant's intent is a question for the jury because intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from surrounding circumstances. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). We defer to the trial court's superior position to evaluate witness credibility. Crain v. State, 78 Ark. App. 153, 79 S.W.3d 406 (2002).

A person commits the offense of possession of drug paraphernalia with intent to manufacture methamphetamine if he uses, or possesses with intent to use, drug paraphernalia to manufacture methamphetamine. Ark. Code Ann. § 5-64-403(c)(5) (Supp. 2001). Our criminal code defines "drug paraphernalia" in relevant parts as "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 in violation of [the Controlled Substances Act]." Ark. Code Ann. § 5-64-101(v) (Repl. 1997).

Appellant contends that there is insufficient evidence to support the verdict because the items found in his truck have everyday uses, and his fingerprints were not recovered from any of those items. We disagree and hold that there was substantial evidence to support the verdict. The police discovered a methamphetamine cookbook, funnels, paper towels, a flow filter with tubing, and lighter fluid in his pickup truck parked in front of a motel room containing methamphetamine lab items. Appellant stayed in this room. A police officer testified that the items found in the pickup truck can be used to manufacturemethamphetamine. He also testified that he did not see any camping equipment, sleeping bags, or charcoal in appellant's truck for which the items in question might have an everyday use. While it is correct that appellant's fingerprints were not found on any of the items, the lack of fingerprint evidence is a conflict in the evidence that may be considered by the jury and accepted or rejected. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000).

Appellant also appears to suggest that the evidence was insufficient to prove his criminal intent to manufacture methamphetamine, either in general or that specific day. Again, we disagree. The jury could find from the evidence that he possessed the requisite intent. Furthermore, whether or not there was evidence that appellant intended to make methamphetamine that very day is not an argument raised below, and thus cannot be considered on appeal. See McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Therefore, we do not need to reach this argument.

Even if we did, though, substantial evidence supports the verdict regarding appellant's intent. First, the police discovered drug paraphernalia suitable to manufacture methamphetamine in appellant's pickup truck. Second, appellant admitted that these items belonged to him. Third, appellant stayed over night in a motel room containing items for a methamphetamine lab. Fourth, there was testimony from a police officer regarding the potential use of the items found in appellant's truck. Fifth, appellant testified that he might have manufactured methamphetamine again, had it not been for his arrest. The fact that appellant also stated that he was at a turning point in his life was self-serving testimony that the fact finders were not required to believe. See Sera v. State, 341 Ark. 415, 17 S.W.3d 61(2000). Therefore, if the limited issue of proving appellant's intent to manufacture methamphetamine that very day were properly before us, we would hold that there was substantial evidence to support his verdict. In general, we hold that there was substantial evidence to support his verdict and affirm.

II. New Trial

Appellant next appears to argue that he was entitled to a new trial because he received an "illegal sentence." In its closing argument, the State incorrectly asserted to the jury that appellant would become eligible for parole after one-sixth of his sentence. In fact, appellant does not become eligible for parole, based on his offense of possession of drug paraphernalia with the intent to manufacture methamphetamine, until he has served seventy percent of his sentence. Ark. Code Ann. § 16-93-611 (Supp. 2001) (effective until April 30, 2002). However, there is nothing in the record, abstract, or addendum that would suggest that appellant raised this argument below. Therefore, we will not reach the merits of this argument. See McGhee, supra. In addition, appellant did not ask for a new trial during the trial court's sentencing hearing. Instead, he requested that the trial court amend the sentence he had received earlier. The trial court did that. There is no basis for appeal when an appellant received the relief he requested. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000). Therefore, we affirm.

In this context, we also note that appellant apparently proposes that his right to besentenced by a jury under Ark. Code Ann. § 5-4-103 was violated when the trial court granted his motion for relief under Rule 37. The United States Supreme Court held that, where a state leaves the allotment of criminal punishment to the discretion of a trial jury, a defendant "has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion." Hicks v. Oklahoma, 447 U.S. 343 (1980). Accordingly, it violates due process to affirm his sentence "simply on the frail conjecture that a jury might have imposed a sentence equally as harsh," had the jury been properly instructed. Id. However, in the case at bar, appellant fails to demonstrate how the alleged violation of his due process rights prejudiced him. He received the statutory minimum sentence and could not have received a lesser sentence than the one he in fact received. Compare Bunch v. State, 344 Ark. 730, 738, 43 S.W.3d 132, 137 (2001) (finding that the outcome of the trial would have been the same where the same sentence would have been handed down whether the court or the jury made the ruling).

Affirmed.

Jennings, J., agrees.

Hart, J., concurs.