ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

TERRY DALE HEAD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-999

August 27, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR01-2654]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

Chief Judge John F. Stroud, Jr.

Appellant, Terry Head, was tried by a jury and found guilty of the offenses of manufacturing methamphetamine, possessing methamphetamine, possessing drug paraphernalia with intent to manufacture methamphetamine, possessing drug paraphernalia, and maintaining a drug premises. He was sentenced as a habitual offender to ten years' imprisonment in the Arkansas Department of Correction.

Appellant raises four points of appeal: (1) "request to rule that manufacture does not occur until usable product is obtained"; (2) the evidence is insufficient to support the verdicts; (3) the trial court erred in refusing to give the jury instructions on the lesser-included offenses of attempt to manufacture methamphetamine and possession of an instrument of a crime; (4) the trial court erred in refusing to suppress the evidence. We find no error and affirm.

Officer Greg Siegler, a meth-certified detective for the narcotics division of the Little Rock Police Department, testified that he and Detectives Flannery, Terry, Blankenship, and Pledger went to appellant's house on April 23, 2001. He said that he rode with Detective Flannery; that they pulled up into the driveway and to the back of the house by the garage; that he saw appellant and Mr. David Womack in the garage; and that he identified himself and began to talk to appellant. Siegler said that he read the consent-to-search form to appellant verbatim, that appellant said he understood it, and that appellant signed it. He denied threatening appellant in any way. He testified that Detective Terry was standing there at the time appellant signed the consent, and that Detective Flannery was talking to Mr. Womack while he, Siegler, was getting appellant's consent to search. He said that Detectives Blankenship and Pledger were at the front of the house talking to appellant's mother. He stated that he assisted in conducting a search of the garage.

Siegler explained the different steps involved in manufacturing methamphetamine. He then identified photographs of several of the items that were recovered from the scene and explained how those items could be used in the manufacturing process. Among the items were: a one-gallon can of paint thinner, numerous pieces of rubber tubing, zip-loc baggies, latex gloves, funnels, a pair of forceps, a glass jar containing a red powder residue, an aspirin bottle with boiling beads in it, coffee filters, and a plate containing a red powder residue. Also found were: two pie dishes with a metal jar lid containing a white powder, a metal ashtray with numerous coffee filters, and a piece of paper with white powder. He testified that he also found a "snorting tube" on the table in the garage, along with a piece of aluminum foil.

He stated that he could not smell any chemical odors outside the garage, but that he could inside the garage. He said he did not find a bed or cot or mattress or anything else to sleep on or any clothing in the garage.

Detective Michael Terry testified that he was present at the search; that Detective Siegler went over the consent form with appellant; and that during that time, they did not threaten, promise or coerce appellant. He stated that appellant and Womack were exiting the garage when he first saw them. He said that he helped in the search after the consent was obtained. He testified about other items that were found in the garage, including: two one-gallon cans of camp fuel, three bottles of hydrogen peroxide, two bottles of 7% iodine tincture, two cans of carburetor cleaner, a can of acetone, a can marked "No Sand," five gallons of muriatic acid, a container of salt, a container of HEET, an HCL generator, a jar of naval jelly, and matchbooks with the striker plates removed. He explained how these items are used in the manufacture of meth.

He said that he did not find a cot or folding beds, clothes, or "anything like that" in the garage. He said that there was not any type of cooking vessel in the garage, just chemicals and a generator. He said that they also found a book with photos, bills, and receipts in the garage. It contained bills and receipts for Womack's old residence, receipts made to Head Construction, deposit tickets for Terry Head, a credit-card payment with Head's signature, a receipt with the account name of Terry Head, and other similar items.

Detective Barry Flannery testified that he went to the scene with Detective Siegler; that appellant and Womack walked out as the officers walked up to the garage; that he talked with Womack; that Womack asked if he could leave and he told him that he could; that he asked Womack for consent to search his vehicle, which was granted; and that he found no contraband inside the vehicle. He said that he, Flannery, was the one who received information from the confidential informant that there was a meth lab located at the residence and that the person manufacturing meth was appellant. He said that the informant was not Womack.

Flannery testified about some of the photo exhibits, explaining what the items were, including acetone, mineral spirits, glass jars with residue, rubber gloves with reddish-brown stains, and coffee filters with reddish-brown stains. He explained how these items are used in manufacturing meth. He said that he did not find any evidence of anyone living in the shed, such as a cot, bed, or any food.

Detective Ken Blankenship testified that he was involved in the search. He, too, described several items that were recovered from the garage and explained how they were used in the manufacturing process. He explained that the vodka bottle containing a bi-layer solution "is used in a process after the cook when they start washing it. It separates into a bi-layer and the meth oil is on top." He said that he found the bottle hidden inside a wall, along with an alcohol bottle that had white sediment that he thought was for separating out the ephedrine from its binders. He stated that you could smell a chemical odor in the shop area. He said that he was not looking for clothing, bedding, and such, but that he did not see any either.

Detective Steve Pledger testified that he was part of the team that went to appellant's house. He said that upon arrival, he and Detective Blankenship approached the front of the residence and that Blankenship knocked on the door, waited a few minutes, and a lady came to the door. He said that she identified herself as appellant's mother; that they told her they had received information of a possible meth lab on the premises; and that she said there better not be a meth lab there and gave her verbal consent to search the area. He described the items that he found in the search of the garage and how they related to the manufacturing process. He said that he did not see any beds, clothing, blankets, or anything, but that he was not particularly looking for those type items, and that there was a strong chemical odor in the garage.

Chris Harrison, a forensic chemist, testified that he is certified to dismantle clandestine meth labs. He said that he was involved in the scene at appellant's house, and that he took representative samples. He described the vodka bottle with the bi-layer solution; said that the top layer was meth oil; that "this is now in the extraction phase"; that "the conversion takes place during cooking when you mix the phosphorus, iodine, and pseudo-ephedrine and the extraction takes place after the meth has been made"; and "[a]t that point, the manufacturing had occurred." Harrison said that the white powder found on the piece of paper, shown with the metal ashtray, weighed 0.575 grams, and that it was meth. He said that the snorting tube and aluminum foil contained meth residue. He said that in his opinion, on April 23, 2001, meth manufacturing was occurring at that residence, and that it was a working lab. He said that based upon his experience, a cook had taken place; that he could not find a reaction vessel, but that the process was not yet finished; and that they found evidence of a cooking lab and the extraction process. He said that the fact there was not a cooking pot did not make any difference in the manufacturing process because "the manufacturing process is conversion and extraction, not preparation or compounding." The State rested at this point, and appellant made his first motion for directed verdict, which was denied.

As part of appellant's case, David Womack testified that he planned to assert his rights under the Fifth Amendment if asked certain questions. The trial court determined that Womack's assertion of those rights made him unavailable as a witness and that therefore his testimony from the suppression hearing could be read into the record of the trial.

Womack testified at the suppression hearing that appellant had lived two houses down from him for over forty years; that he was present at appellant's shop on April 23 when the detectives arrived; that he and appellant were walking out of the garage with some parts to work on a water faucet when the detectives came; that he saw them talking to appellant; that they said they had information there was a meth lab on the premises; that they wanted to search the area; that appellant asked them if they had a warrant; that they said if he did not comply, they would confiscate everything on the premises; and that the officers told him, Womack, to leave. He said that he had been staying in the shed because he had been arrested at his house on the same charges and did not want to move back home because he knew the police would be there every night; that he did not tell anyone that he was living in the shed; that he had been staying in the shed for a week; that he was not cooking meth in the shed; and that while he was in the shed, he saw Red Devil lye, carb cleaner, liquid drain cleaner, coffee filters, paint thinner, and funnels, but not the other items. He said that he worked with appellant in his construction business.

Jo Anne Head, appellant's mother, testified that she was present the day the police came; that appellant was living in the house and had his own room; that Womack was living in the shed for a few days and she knew he was there; that he had her permission to do so; and that she was not aware of anyone selling meth out of the shed.

Detective Siegler testified that he remembered appellant's brother and wife arriving at the scene, and that he remembered them asking him about fingerprints and explaining why it was not feasible to try to get them.

Ron Head, appellant's brother, testified that he went to appellant's house the day of the arrest; that Womack was living there; and that he was not aware of anyone making meth at that location. Sandy Head, appellant's sister-in-law, testified that as far as she knew, no one was making meth in the shed. Appellant made his second motion for directed verdict, which was also denied.

Sufficiency of the Evidence

Preservation of appellant's right against double jeopardy requires that we consider his challenge to the sufficiency of the evidence before we consider any alleged trial error. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Id. Our supreme court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we are to view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may 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. In other words, if there are two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt, which is not enough to support a conviction. Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998).

At the conclusion of the State's case, appellant's counsel moved for a directed verdict, stating:

At the close of all of the evidence, appellant again moved for a directed verdict:

The trial court denied both motions, and we find no error in those denials.

The gist of appellant's argument at trial and on appeal is that there was not enough evidence to tie him to the offenses. He contends that David Womack lived in the garage and he lived in the house, and that, therefore, the garage was subject to Womack's control, not his. He further contends that the evidence establishes either an exclusive occupancy of the garage by Womack or a joint occupancy by appellant and Womack, and that under either scenario, "[t]here is not one scintilla of evidence to suggest the appellant was knowingly in control of or possession of contraband, particularly in light of the occupancy of the garage by Mr. Womack."

To convict one of possessing contraband, the State must show that the defendant exercised control or dominion over it. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Neither exclusive nor actual physical possession, however, is necessary to sustain a charge of possessing contraband; rather, constructive possession is sufficient. Id. Constructive possession may be implied when the contraband is in the joint control of the accused and another; however, joint occupancy alone is insufficient to establish possession or joint possession. Id. The State must establish in a prosecution for possessing contraband (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Id. Control and knowledge may be inferred from the circumstances where there are additional factors linking the accused to the contraband. Id.; White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994). This control and knowledge 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. White, supra.

Here, although appellant takes the position that Womack was living in the garage, there was contrary evidence. Moreover, there was unchallenged testimony that the officers had received a tip that appellant was manufacturing meth at his residence; appellant and Womack were walking out of the garage at the time the officers arrived; appellant gave consent for the search, which also indicates a level of control over the premises even though they were owned by his mother; several manufacturing components were in clear view in the garage, even though some were not; there was testimony that a chemical odor was present in the shed, consistent with the manufacture of meth; and a notebook containing appellant's and Womack's names, credit card numbers, and bank account numbers was located in the garage. We conclude that there was substantial evidence to tie appellant to the activity and items found in the garage and to support his convictions.

"Usable Amount"

Appellant asks this court to "overrule precedent and find that as a matter of law the manufacture of a controlled substance does not occur . . . until such time as a finished, usable product has been produced." He acknowledges that he raised the "usable amount" issue to the trial court during the discussion over jury instructions and as support for his request for an instruction on the lesser charge of attempt to manufacture  methamphetamine. He also concedes that "the trial court's ruling on this issue was soundly based on the majority opinion in Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989)," but contends that Lee should be overruled and Justice Purtle's dissent in that case should be adopted as the prevailing rule. We disagree.

First, on appeal, appellant argues this point in the context of sufficiency of the evidence to support the conviction for manufacture of methamphetamine, but he did not properly preserve such an argument. Although he raised the usable amount argument at trial, he did not do so in the context of a motion for a directed verdict. A party is bound by the scope and nature of his or her arguments below, and arguments raised for the first time on appeal will not be considered. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001). Moreover, even if he had properly preserved this sufficiency argument, he acknowledges that Lee, supra, controls unless it is overruled. We do not have the authority to overrule decisions of the Arkansas Supreme Court. Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999).

Jury Instructions

For his third point of appeal, appellant contends that the trial court erred in refusing to give the jury instructions on the lesser-included offenses of attempt to manufacture methamphetamine and possession of an instrument of a crime. We disagree.

While it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence, it is not error for the court to refuse or fail to instruct on the lesser offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Arkansas Code Annotated section 5-1-110(c) (Repl. 1997) provides that the court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

In Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), our supreme court held that when a defendant asserts that he is entirely innocent of any crime, no rational basis exists to instruct the jury on a lesser-included offense, as the only issue for the jury is whether the defendant is guilty as charged. The supreme court stated:

Doby rested his entire defense on his credibility against that of the officers. So as a practical matter, it came down to whom should the jury believe. There would be no rational basis to find the officers lied in part in this case. Their testimony so sharply conflicted with Doby's that it would not be reasonable to expect a jury to pick and choose and come up with a finding of a lesser offense when to do so would require a finding that Doby was a liar and the officers liars in part. If Doby had admitted possessing the drugs, it might make sense to require the charge of the lesser offense. But his defense was that he was entirely innocent of any crime: he possessed nothing. Therefore, the jury only had one question to decide, whether he was guilty as charged.

Id. at 412, 720 S.W.2d at 696.

In Brown v. State, 321 Ark. 413, 416, 903 S.W.2d 160, 162 (1995), our supreme court explained:

Here, appellant essentially relied upon a defense of "I didn't do it, Womack did." Thus, in line with what the above cases, we find no error in the trial court's refusal to give the requested instructions regarding attempted manufacture of methamphetamine and possessing an instrument of crime. We, therefore, find it unnecessary to address the State's position that possessing an instrument of a crime is not a lesser-included offense of possessing drug paraphernalia.

Suppression of Evidence

For his final point of appeal, appellant contends that the trial court erred in refusing to suppress the evidence because his consent to search was not voluntary. We find no error.

The standard of review in suppression cases was clarified in Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003):

The testimony from the suppression hearing was largely repeated at trial and has been previously set forth in detail in this opinion. It is not necessary to recount it again here. Appellant's argument depends in large part upon having this court credit his own testimony and that of Mr. Womack over the police officers who sought his consent for the search. In short, appellant's version of the facts was that the officers intimidated, threatened, and coerced him into signing the consent to search by the presence of five officers, blocking any exit, and by an officer telling him that they would call his probation officer and confiscate the property if he did not consent. While there were five officers on the premises, they denied such acts of intimidation, and the trial court clearly credited their testimony. Moreover, there was also testimony from the officers that appellant's mother, the homeowner, gave verbal consent for the search. After our de novo review of the totality of the circumstances, we find no clear error in the trial court's refusal to suppress the evidence.

Affirmed.

Neal and Crabtree, JJ., agree.