ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

CACR02-1085

August 27, 2003

STEVEN KINZALOW

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM DREW COUNTY CIRCUIT COURT

[NO. CR2001-015-3A]

HONORABLE DON GLOVER, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant, Steven Kinzalow, was convicted of manufacturing a controlled substance, methamphetamine, a Class Y felony, and possession of drug paraphernalia with intent to manufacture methamphetamine, a Class B felony, and was sentenced to ten (10) years' imprisonment in the Arkansas Department of Correction. Kinzalow appeals, arguing that the evidence was insufficient to support his conviction. We affirm.

On December 28, 2000, Agent Scott Woodward of the Arkansas State Police approached Kinzalow's residence in Monticello, Arkansas, in connection with a matter unrelated to this case. Agent Woodward testified that as he walked up the steps to the front door of Kinzalow's home, he immediately noticed a strong odor of ether. Agent Woodward testified that after conversing with Kinzalow, he asked for consent to search his home, which Kinzalow refused.

While standing in the doorway, Agent Woodward noticed a twenty-ounce Coca-Cola bottle lying on the ground to the left of the steps leading up to Kinzalow's home. Agent Woodward testified that the bottle had been modified to resemble what he perceived to be an HCl generator used in the manufacturing process for methamphetamine. A propane bottle was also found near the cola bottle. As a result of this find, Agent Woodward and the drug task force obtained a search warrant for the purpose of conducting a search of the premises occupied by Kinzalow as well as the vehicle of Willie Lee Sanson, who was also present in the motor home at the time Agent Woodward arrived.

During the search, agents located two jars in a trash pile situated in Kinzalow's front yard between Kinzalow's home and a public street. A chemical analysis revealed the presence of methamphetamine, pseudoephedrine, lithium carbonate, and ammonia, all components used in the manufacturing process of methamphetamine. The other components required for manufacturing methamphetamine were found by the agents in Sanson's vehicle. Inside the residence, agents found only syringes and plastic bags.

Kinzalow contends on appeal that the State failed to present sufficient evidence to prove that he was in possession of any of the above-mentioned components or that he was even aware of the existence of these components.

In criminal cases, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, and will affirm if the conviction is supported by substantial evidence. Smith v. State, 34 Ark. App. 150, 806 S.W.2d 391 (1991); Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). Substantial evidence has been defined as evidence of sufficient force and character that will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond mere suspicion or conjecture. Smith , supra; Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984).

It is a felony violation of Arkansas Code Annotated § 5-64-401 to possess, manufacture, or attempt to manufacture methamphetamine. Ark. Code Ann. § 5-64- 401(a)(1)(i)(Repl.1997). The statute does not require that methamphetamine actually be produced from the manufacturing process to sustain a conviction because a felony violation of the statute includes attempted manufacture of methamphetamine. Harris v. State, 73 Ark. App. 185, 187, 44 S.W.3d 347, 349 (2001).

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). The term "drug paraphernalia" specifically includes items such as scales and balances, cutting agents, bowls, containers, and mixing devices. See Ark. Code Ann. §§ 5-64-101(v)(5), (6) & (8)(Repl. 1997). These items have ordinary and legal usages, and the fact-finder must determine whether the object is drug paraphernalia considering all logically relevant factors and evidence such as the following: (1) statements by an owner or by anyone in control of the object concerning its use; (2) prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance; (3) the proximity of the object, in time and space, to a direct violation of the controlled substances act; (4) the proximity of the object to controlled substances; (5) the existence of any residue of controlled substances on the object; (6) direct or circumstantial evidence of the intent of the owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to manufacture a controlled substance; (7) instructions, oral or written, provided with the object concerning its use;(8) expert testimony concerning its use. Ark. Code Ann. § 5-64-101(v)(Repl. 1997).

According to Agent Woodward, the search revealed the presence of all materials necessary for manufacturing methamphetamine, including the following: (1) the presence of a strong smell of ether; (2) the cola bottle which contained a lumpy white substance with a tube coming out of the top; and (3) a propane bottle, the heat of which can accelerate meth production. Further, the drug task force officers discovered a trash pile next to Kinzalow's home that contained (1) empty cold-medicine boxes indicating they contained pseudoephedrine, a precursor to methamphetamine, (2) a shopping bag that contained a can of Prestone starter fluid, a bottle of Liquid Fire solution, and a glass jar containing a pink-tinted substance, (3) a large Ziplock bag covering a coffee can, containing a liquid substance which heavily smelled of ether. See Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001) (Holding that evidence including ephedrine or pseudoephedrine tablets, empty blister pill packs; starting fluid; paint thinner; lithium (battery) strips; various types of solvents; acetone; denatured alcohol; electronic scales; Mason jars; metal fittings; funnels; empty plastic soda bottles; a tank of anhydrous ammonia; syringes; small Ziplock plastic bags; and numerous spoons containing trace amounts of methamphetamine was sufficient to support conviction of manufacturing a controlled substance and possession of drug paraphernalia).

At the time of Kinzalow's arrest, Willie Sanson was also arrested and taken into custody. In conjunction with Sanson's arrest, his vehicle, that was parked beside Kinzalow's home, was also searched. Several unused coffee filters, a sack with two large jars, one of which contained a cloudy, milky substance, and a blowtorch were discovered inside Sanson's vehicle.

The various items seized in the search were all found in very close proximity to Kinzalow's home. Photographs introduced by the State reflect that the HCl generator was only inches fromthe trailer door and that the trash pile was a few feet from the door. Trent Vollmer, an investigator with the drug task force who was trained in the recognition and cleanup of methamphetamine labs, testified that all of the chemicals, solutions, and glassware assembled beside Kinzalow's home or in Sanson's vehicle constituted the various steps in manufacture of what is commonly known as the "Nazi" method for manufacturing methamphetamine. Using a chart, Vollmer outlined each step in the production cycle and demonstrated how the items found by the drug task force could facilitate each step. Vollmer also testified that he took samples of the various substances contained within the different items found during the search. One jar found in the trash pile contained methamphetamine together with chemicals used in the manufacturing process. Another jar found in Sanson's vehicle also tested positive for methamphetamine.

Perhaps most telling that Agent Woodward had discovered an active meth lab was Vollmer's testimony that the HCl generator (cola bottle) was "still smoking," indicating its recent use. Vollmer also testified that a common way to use meth is by hypodermic needles, several of which were found within Kinzalow's residence.

Kinzalow argues that the bulk of the items confiscated were located in Sanson's vehicle and that a subsequent search of Sanson's home later the same day revealed an actual meth lab. Sanson ultimately admitted his involvement in manufacturing meth and pled guilty, agreeing to testify against Kinzalow. At trial, Sanson admitted during cross-examination that he and Kinzalow had been involved in manufacturing meth. Kinzalow further argues that other than several syringes and a few plastic bags located in his bedroom, there was no evidence of any controlled substances or components used in the manufacture of meth located in his residence. Kinzalow argues that the State's evidence was merely circumstantial.

Circumstantial evidence may constitute substantial evidence. While circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence, this becomes a question for the fact finder to determine. Armstrong v. State, 45 Ark. App. 72, 76, 871 S.W.2d 420, 423 (1994). Also, constructive possession may be imputed when the contraband is found in a place that is either accessible to the defendant and subject to his exclusive dominion and control, or subject to the joint dominion and control by the defendant and another. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976); Hughes v. State, 74 Ark. App. 126, 131, 46 S.W.3d 538, 542 (2001). In order to prove constructive possession, the State must establish beyond a reasonable doubt that (1) the defendant exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Hughes, supra.; see also Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995).

Kinzalow admits in his brief that he never disputed that the items found on his premises or in Sanson's vehicle were used in the manufacture of meth; however, he argues that the State produced no evidence to show that he knew or should have known about the presence of these items. The control and knowledge required of constructive possession 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 e.g., Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002); Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).

In the present case, there is no dispute that the items of contraband were discovered at Kinzalow's residence. There is also no dispute that the HCl generator, the propane tank, and items found in the trash pile were in plain view and were in very close proximity to the door of Kinzalow's home. Moreover, Sanson's statement about Kinzalow's involvement with the manufacture came in through the officer's testimony and was not objected to at trial as hearsay evidence. There is substantial evidence, both direct and circumstantial, to affirm the conviction.

Affirmed.

Vaught and Baker, JJ., agree.