ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION 

RONALD A. WEATHERFORD        

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-415

                                        OCTOBER 29, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR2001-2369]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

                                                    Karen R. Baker, Judge             

            Appellant, Ronald Weatherford, was convicted of manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of drug paraphernalia. He was sentenced to ten years’ imprisonment in the Arkansas Department of Correction for the manufacturing methamphetamine conviction and fined $500 for each of the remaining two convictions. Appellant has five arguments on appeal: 1) the evidence was insufficient to support his convictions for manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of drug paraphernalia; 2) the circumstantial evidence adduced at trial was insufficient to exclude all reasonable hypotheses except for his guilt; 3) the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence that the evidence upon which the conviction was based had been planted by an informant who provided information to law enforcement for compensation and out of revenge; 4) the trial court erred in refusing to direct the State to disclose the identity of the confidential informant; and 5) the trial court abused its discretion in holding that evidence of prior misconduct by the State’s informant was inadmissible where the prior acts were consistent with the informant’s admitted actions in planting evidence leading to appellant’s arrest and conviction in the instant case. We disagree and affirm on all points.

            A search warrant was executed on appellant’s home on April 29, 2001. The officers approached the residence and knocked on the door. After they received no answer, the officers forced their way inside. Officer Doty testified that a number of chemicals, including Liquid Fire, Naptha, lighter fluid, camp fuel, acetone, and denatured alcohol, were found inside the residence. Two containers of salt and plastic bottles with rubber tubing attached were also found inside. In the kitchen, the officers found a container of kerosene, a can marked “lacquer thinner” that contained a number of striker plates off matchbooks, denatured alcohol, rubber tubing, coffee filters, and a Pyrex dish. Officer Mulligan testified that he also found a can of Red Devil lye, numerous plastic bags containing black crystal, two trash bags containing red powder and a piece of aluminum foil in the kitchen. Forensic chemist, Chris Harrison, testified that he noted on his report a one-gallon metal can that contained a “solution.” The solution, which he poured into a glass jar, was a bi-layer solution with a strong base indicating that the cooking of the methamphetamine had been completed and the extraction process had been started. Harrison further concluded that, “My opinion is that manufacturing of methamphetamine was taking place at this lab.” “I do not think it might have happened. That’s actually meth manufacturing going on.” However, Harrison did state that, “I can’t place a time on this lab.”

            At trial, appellant denied all of the allegations against him. He asserted that some of the items commonly found in households did indeed belong to him. However, he testified that prior to the execution of the search warrant, his nephew had needed a place to live and appellant had let him stay in his home. The arrangement was not working out, and the day before his arrest he had had to ask the nephew to leave. Appellant stated that he did not use or manufacture methamphetamine; however, he suspected his nephew of “messing with it.” Appellant claims that while his nephew was living with him he saw a piece of paper entitled “list of people to get in touch with,” which included Detective Doty’s name.

            At the close of the State’s case, appellant’s counsel made a motion for a directed verdict as to all three allegations. The trial judge denied the motion. At the close of all the evidence, appellant renewed his motion for a directed verdict, which was again denied. At the conclusion of the trial, appellant was found guilty of the alleged charges. Appellant filed a motion for a new trial. At the hearing, appellant’s nephew, Ray, Jr., and his nephew’s son, Ray, III, both testified. Ray, Jr. testified that he did not plant any evidence in the house and denied ever telling Ray, III that he had done so. Ray, III testified that in a conversation with his father, Ray, Jr. admitted to planting the methamphetamine lab paraphernalia in appellant’s apartment. After the hearing, appellant’s motion for a new trial was denied. This appeal followed.

I. Sufficiency of the Evidence

            Appellant’s first argument on appeal is that the evidence was insufficient to support his convictions for manufacturing methamphetamine, possession of drug paraphernalia with intent to deliver, and possession of drug paraphernalia. A motion for directed verdict is a challenge to the sufficiency of the evidence. The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict. Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003) (citing Hatley v. State, 68 Ark. App. 209, 5 S.W.3d 86 (1999)). 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. See Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). We will affirm a conviction if substantial evidence exists to support it. See id. Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Cherry, supra (citing Mace v. State, 328 Ark. 536, 944 S.W.3d 830 (1997). The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001).

            Appellant was convicted of manufacturing methamphetamine under Ark. Code Ann. § 5-64-401(a) (Supp.2003), which states that, “Except as authorized by subchapters 1-6 of this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” Appellant was also convicted of possession of drug paraphernalia with intent to manufacture methamphetamine and possession of drug paraphernalia under Ark. Code Ann. § 5-64-403(c)(2)(A) (Supp. 2003), which states that, "It is unlawful for any person to . . . possess . . . drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to . . . manufacture . . . a controlled substance. . . ."

            Here, appellant argues that there was insufficient evidence of manufacturing methamphetamine because there was no direct evidence offered that appellant was engaged in the act of “cooking” methamphetamine. Appellant asserts that the items found in his home belong to his nephew who was staying with him during the two and one half to three weeks prior to the search. Appellant does not dispute that the home in which the items were found belonged to him. In appellant’s home, there were numerous items found that could be used in the manufacture of methamphetamine. Some of the items found included: a number of chemicals, including Liquid Fire, Naptha, lighter fluid, camp fuel, acetone, and denatured alcohol; salt; plastic bottles with rubber tubing attached; a container of kerosene; a can marked “lacquer thinner” that contained a number of striker plates off matchbooks; denatured alcohol; rubber tubing; coffee filters; a Pyrex dish; a can of Red Devil lye; numerous plastic bags containing black crystal; and two trash bags containing red powder. Furthermore, forensic chemist, Chris Harrison, testified that a one-gallon metal can that contained a “solution” was noted on his report. The solution, which he poured into a glass jar, was a bi-layer solution with a strong base indicating that the cooking of the methamphetamine had been completed and the extraction process had been started. Harrison further concluded that, “My opinion is that manufacturing of methamphetamine was taking place at this lab.” “I do not think it ‘might have happened. That’s actually meth manufacturing going on.’”

            Appellant testified in his own behalf and denied that he used methamphetamine or manufactured it during the time his nephew lived with him; however, he had a suspicion that his nephew might “be messing with it.” He also offered exculpatory explanations for such items as the charcoal lighter fluid, acetone, and kerosene. However, the jury was not required to believe appellant's statements. Davis v. State, 325 Ark. 96, 106, 925 S.W.2d 768, 773 (1996). Under these facts, we find that there was substantial evidence to support appellant’s convictions.

                                                          II. Circumstantial Evidence

            Appellant’s second argument on appeal is that the circumstantial evidence adduced at trial was insufficient to exclude all reasonable hypotheses except for his guilt. While it is true that circumstantial evidence is substantial evidence only if all reasonable hypotheses consistent with innocence are excluded, "once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes every other hypothesis consistent with innocence is for the jury to decide." Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). Furthermore, the jury alone resolves inconsistencies in testimony, and appellate courts defer to the jury's resolution of those matters. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002).

            In this case, there were numerous items found in appellant’s home that are commonly used in manufacturing methamphetamine. Moreover, the forensic chemist from the state crime lab specifically stated that he had no doubt that the manufacturing of methamphetamine was taking place in the lab found in appellant’s home.

            Appellant contends that the evidence leaves the fact-finder in the position of resorting to speculation and conjecture in order to determine guilt or innocence, thus rendering the evidence insufficient as a matter of law. Appellant relies on his own theory that there was no direct evidence to link him to the items found in the home, and his testimony that his nephew, who he suspected was involved with methamphetamine, was living with him prior to the execution of the search warrant. His argument concerns the weight of the evidence, which is a matter for the jury alone to resolve. Alexander, supra. We hold that sufficient evidence supports appellant's convictions.

III. Denial of Motion for a New Trial

            Third, appellant argues that the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence that the evidence upon which the conviction was based had been planted by an informant who provided information to law enforcement for compensation and out of revenge. The decision whether to grant or deny a new trial lies within the sound discretion of the trial court, and this court will reverse that decision only if there is a manifest abuse of discretion. Smart v. State, ___ Ark. ___, 104 S.W.3d 386 (April 17, 2003) (citing Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002)). A trial court's factual determinations on a motion for a new trial will not be reversed unless clearly erroneous, and the issue of witness credibility is for the trial judge to weigh and assess. Id. We have long held that newly discovered evidence is one of the least favored grounds to justify a new trial. Id. (citing Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997)); Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991); Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972)). To prevail, appellant must demonstrate that the new evidence would have impacted the outcome of the case and that due diligence was exercised in trying to discover the evidence. Miles v. State, 59 Ark. App. 97, 954 S.W.2d 286 (1997).

            Here, appellant presented conflicting evidence at the hearing from his nephew, Ray, Jr., and his nephew’s son, Danny Carroll Ray, III. Ray, Jr. testified that he did not plant any evidence in the house and denied ever telling Ray, III that he had done so. Ray, III testified that in a conversation with his father, Ray, Jr. admitted to planting the methamphetamine lab paraphernalia in appellant’s apartment. As mentioned above, credibility is for the trial judge to determine. Moreover, there is no evidence that this testimony would have impacted the outcome of the case. Accordingly, we conclude the trial court's denial of appellant's motion for new trial did not amount to an abuse of discretion.

IV. Disclosure of Identity of Confidential Informant

            Appellant’s fourth argument on appeal is that the trial court erred in refusing to direct the State to disclose the identity of the confidential informant. Although it may have been error for the trial court to deny appellant’s request that the identity of the confidential informant be revealed, this argument was not preserved for our review. Appellant concedes that this argument was not made at trial and that the trial judge did not rule on the issue of disclosure. We have repeatedly held that we will not address on appeal issues that have not been preserved at trial. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (citing Jones v. State, 327 Ark. 85, 937 S.W.2d 633 (1997)). Moreover, appellant did not raise the issue in his motion for a new trial, which was based solely on newly discovered evidence, although he arguably raised the issue at the hearing on the motion. As discussed in point III, in order to prevail on a motion for new trial based upon newly discovered evidence, the movant "must show that the new evidence would have impacted the outcome of his case, and that he used due diligence in trying to discover the evidence." Wilcox v. State, 342 Ark. 388, 39 S.W.3d 434 (2000) (citing Misskelley v. State, 323 Ark. 449, 478, 915 S.W.2d 702, 717 (1996)). Whether or not to grant a motion for a new trial is within the discretion of the trial court, see Hughes v. State, 303 Ark. 340, 797 S.W.2d 419 (1990), and we do not reverse that decision absent an abuse of discretion. Brooks v. State, 76 Ark. App. 164, 61 S.W.3d 916 (2001) (citing Bunton v. State, 36 Ark. App. 170, 820 S.W.2d 466 (1991)). Appellant alleged that because new evidence indicated that his nephew was a confidential informant for the sheriff and planted evidence in appellant’s residence he was entitled to a new trial. Yet, his entire defense at trial was based on the premise that his nephew orchestrated the events leading to his arrest. We cannot say that the trial judge abused his discretion in finding that disclosure of the informant would not have impacted the outcome of this case.

V. Refusal to Admit Prior Bad Acts of Witness

            Appellant’s final argument on appeal is that the trial court abused its discretion in holding that evidence of prior misconduct by the State’s informant was inadmissible where the prior acts were consistent with the informant’s admitted actions in planting evidence leading to appellant’s arrest and conviction in the instant case. Although the trial court first ruled that testimony of prior bad acts from Ray, III was inadmissible, the trial court allowed the evidence to be proffered. In appellant’s favor, the court then ruled that the proffered evidence would be considered in the court’s decision whether or not to grant the motion for a new trial. Accordingly, we find no error on the part of the trial judge in this regard.

            For the foregoing reasons, we affirm on all points.

            Vaught and Crabtree, JJ., agree.