ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

MANDI TANNER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1206

November 19, 2003

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CR-2001-629]

HON. DAVID LEE REYNOLDS,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Following a bench trial in Faulkner County Circuit Court, Mandi Tanner was found guilty of manufacturing methamphetamine, simultaneous possession of drugs and firearms, maintaining a drug premises, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of drug paraphernalia. She was sentenced to ten years' imprisonment. On appeal to this court, appellant argues that there is insufficient evidence to support her convictions. We affirm.

On June 14, 2001, at 2:20 a.m., Conway police officers Paul Burnett and Larry Hern provided backup for a traffic stop of a vehicle occupied by Wendell Martin and Ray White. Both men were determined to be felons who claimed they were going to appellant's house to purchase a car. Martin had $1,200 in cash on his person. White, the driver, was arrested, and Martin was taken to appellant's house because police wanted to verify Martin's story for appellant's protection. When appellant answered her door, she was asked for identification. Appellant stated that it was inside, and she agreed to Officer Burnett's request to accompany her into the residence. According to the officers' testimony, appellant stated that she and her three children lived in the residence. When asked about the car Martin was allegedly there to buy, appellant confirmed Martin's story and explained that the car was in the shop.

Inside appellant's residence, the officers noticed a partially dissolved Sudafed tablet and a prescription pill in plain view. Officer Burnett asked appellant whether she had any guns, drugs, or paraphernalia in the house, and she said she did not. He then asked appellant if they could search her house, and, according to Officer Burnett, she said, "I don't have a problem. You can - y'all can search anywhere in the house. I have nothing to hide."

Officer Burnett found a can of lighter fluid on a box of clothes and toys in a back bedroom. In appellant's bedroom, Officer Hern found a loaded .22-caliber handgun sitting on an ironing board. Inside appellant's bedroom closet, Officer Hern found a Mason jar containing a pink liquid that had a strong chemical odor. Appellant was arrested at that point, and a full search of her residence was conducted.

Norman Kemper, a forensic drug chemist at the State Crime Lab, testified about the items found in the search of appellant's residence and the items' possible uses. Officers found the following: tablets containing ephedrine and pseudoephedrine, which are precursors to methamphetamine; a baggie with a pink powder identified as pseudoephedrine, which appeared to have been extracted; coffee filters, which are used in various stages of the manufacturing process, that contained either an unidentified residue or red phosphorus; a clear vial with pink liquid determined to be methanol and pseudoephedrine, which could be used as a pill soak; jars containing a bi-layered solution of water and an organic solvent like camp fuel; a gray metallic powder found to be iodine, an essential ingredient when using the phosphorus method of making methamphetamine; and metal tubing that was burned at both ends and contained cocaine residue.

Drug Task Force Officer Tommy Ballentine testified regarding other items, including two HCL generators (a mixture of salt and sulfuric acid that produces hydrogen chloride gas) which represent the final stage in the manufacturing process; a box of salt; Red Devil lye, which brings the pH to a level where crystals form; containers of charcoal lighter fluid, which is used for the pill soak, filtering, and clean up; containers of camp fuel, which is used to separate layers; acetone, which is used to break down pills; a can of turpentine, which is also a solvent; a can of Heet; drain opener, which is used to create gas; two electric heat sources used for evaporation; coffee filters; tin foil, which is used to smoke methamphetamine; tubing for use with the HCL generators; and a water bong commonly used in connection with marijuana. Ballentine summarized his testimony by saying that all of the items found were consistent with manufacturing methamphetamine.

Defense counsel moved for a directed verdict on the manufacturing charge, arguing that there was no evidence that appellant manufactured anything. Counsel insisted that there may have been evidence that there was a methamphetamine lab at one time in the past but that appellant's presence at the scene was the only evidence tying her to the actual manufacturing process. Counsel's second directed-verdict motion went to the charge of simultaneous possession of drugs and firearms. He argued that, while it was clear that appellant possessed a firearm, there was insufficient evidence to prove the underlying felony. Counsel's argument for the next directed-verdict motion was that there was no evidence that appellant knowingly maintained a drug premises or that she allowed any other individual to maintain one. Finally, counsel moved for a directed verdict on the charges of possession of drug paraphernalia. He argued that there was no evidence that appellant knowingly possessed any paraphernalia. The trial court denied all of appellant's motions.

Appellant then testified in her own behalf. She stated that she knew Martin because he was her cousin's friend. He had contacted her around midnight of the night in question and said that he was coming over to her house to exchange the money and write a bill of sale for the car. Appellant stated that she spoke to the police officers on the telephone before they arrived at her house. Regarding her residence, appellant testified that she had told the officers that she had a roommate, Cleburne Hastings. According to appellant, she stayed at the residence only on Mondays, Tuesdays, and Wednesdays and, the rest of the time, she stayed in Jacksonville. She stated that the Sunday before her residence was searched, she had kicked Hastings out because she had come home to find the place trashed. In addition, she said that there was a film on the mirrors and counter tops and that there was a big burned spot on her carpet. Appellant also said there was a "funny" smell that she did not recognize. In her testimony, appellant claimed some of the contraband as her own, including the gun, which she said she had because she was afraid of Hastings; the pseudoephedrine, which she had been taking while she was sick; the coffee filters and salt; one can of lighter fluid; the acetone and turpentine that were to be used for stripping her coffee table; and the drain opener, which she said could have been left by the landlords when they were plumbing.

Appellant admitted that she had used methamphetamine two to three weeks prior to the search of her residence but insisted that she had never cooked it and had no knowledge that anyone else had cooked it at her residence. She later stated, however, that after she saw the mess Hastings had made of her home, it seemed obvious that he had been cooking methamphetamine. Appellant stated that she had not used crack cocaine in many years but that the paraphernalia with cocaine residue may have belonged to her cousin. She also stated that, in addition to Hastings and her cousin having access to the residence, her neighbors had keys as well and that they had stolen things.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. 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 having to resort to speculation or conjecture. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. See Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001).

Appellant maintains that her conviction for manufacturing methamphetamine is not supported by substantial evidence. "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or re-labeling of its container. See Ark. Code Ann. § 5-64-101(m) (Repl. 1997).

Appellant argues that there was no evidence that a "meth lab" had recently been assembled. Specifically, she contends that the State did not establish a time frame indicating when the methamphetamine was actually cooked at her residence. The State correctly points out that appellant is raising this particular argument for the first time on appeal. Accordingly, we will not address it. See Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).

In addition, appellant argues that there was nothing to indicate that she actually used the items scattered throughout the house to manufacture methamphetamine. Appellant maintains that the scattered nature of the items support her contention that Hastings had cooked methamphetamine previously and that she had begun to "throw out his meth lab" upon returning home. Although appellant testified that she told the officers that Hastings had been her roommate, her testimony conflicted with the officers' testimony that appellant made no mention of any roommate to them. The trial court was entitled to believe that appellant asserted sole ownership of the property at the time of the search and that appellant only dropped Hastings's name after the fact. This court will not second-guess credibility determinations made by the factfinder. See Hale, supra.

Appellant points to Kemper's testimony that, while methamphetamine is usually present on top of the bi-layered solution, methamphetamine was not present in the jar that was recovered from her residence. Kemper also testified that the absence of methamphetamine could have been because the solution was being "prepped." In any event, the presence of methamphetamine is not determinative because the substance does not have to be in a form to be sold before manufacturing occurs. See Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001). In light of the numerous items found in appellant's house in various stages of use, we affirm appellant's conviction for manufacturing methamphetamine as it is supported by substantial evidence.

According to Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1997), a person commits the offense of simultaneous possession of drugs and firearms if she commits a felony violation of Ark. Code Ann. § 5-64-401 while in possession of a firearm. In the conclusion section of appellant's brief, she asserts that, because the State's evidence failed to prove the underlying violation that she manufactured methamphetamine or possessed drug paraphernalia, her conviction for simultaneous possession of drugs and firearms must fail. To the extent that appellant has made this argument on appeal, we disagree. At trial, appellant admitted that she possessed the handgun. Because we affirm her conviction for manufacturing methamphetamine, appellant's conviction for simultaneous possession of drugs and firearms is also affirmed.

Pursuant to Ark. Code Ann. § 5-64-402(a)(3) (Repl. 1997), it is unlawful for any person to knowingly keep or maintain any dwelling or premises, which is resorted to by persons for the purpose of using, obtaining, or keeping drugs. Aside from appellant's conclusory remark that there was no evidence that she let other people use her residence for the purpose of using or obtaining controlled substances, she does not make any cogent argument on appeal. Arguments unsupported by authority or convincing argument will not be considered by this court. Ward v. State, 350 Ark. 69, 84 S.W.3d 863 (2002). Thus, we do not reach the merits and, instead, affirm the trial court's ruling on this point. See id. 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" includes all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance. Ark. Code Ann. § 5-64-101(v) (Repl. 1997).

Appellant relies on the factors enumerated in Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002), to support her assertion that there was insufficient evidence that the items found in her home were in fact drug paraphernalia. We need not set out those factors because appellant's reliance is misplaced. In Gilmore, the defendants were arrested as they were leaving Wal-Mart because they had purchased several items commonly associated with the manufacture of methamphetamine, including seven boxes of antihistamine tablets, four cans of starting fluid,a can of butane, air freshener, and two propane bottles. In reversing defendants' convictions for possession of drug paraphernalia with intent to manufacture methamphetamine, this court concluded that mere possession of items that have legitimate uses in the quantities and combination found gave rise only to a suspicion that someone may use the items to manufacture methamphetamine.

Clearly, the items seized from appellant's home in the case at bar give rise to more than mere suspicion. Virtually all of the items needed to manufacture methamphetamine were found in appellant's home. Some of the contraband was found in appellant's own bedroom, and other items were found in plain view. Several containers had been emptied, a pink liquid had been mixed for use as a pill soak, and a Sudafed tablet had been partially dissolved. Unlike the items in Gilmore, the items from appellant's residence had been or were being used in the manufacturing process at the time they were seized.

Appellant argues that she proved she shared the residence with another person and that the State failed to provide the linking factors under the theory of constructive possession that are required to show that she possessed the drug paraphernalia. We will not address arguments raised for the first time on appeal. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Appellant's convictions for possession of drug paraphernalia and possession of drug paraphernalia with intent to manufacture methamphetamine are supported by substantial evidence.

Affirmed.

Robbins and Bird, JJ., agree.