ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

JAMES RICKY GLASGOW

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-179

December 17, 2003

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

CR2002-40-2

HON. PHILLIP H. SHIRRON, JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant James Glasgow was convicted by a Hot Spring County jury of possession of methamphetamine and manufacture of methamphetamine. He appeals the circuit court's denial of his motion to suppress, alleging that it should have been granted because the State failed to meet its burden of proof that consent to search was freely and voluntarily given. He also contends that it was error for the circuit court to deny his motions for directed verdicts challenging the sufficiency of the evidence presented by the State. We affirm.

On December 27, 2001, Eric Brown, a deputy with the Hot Spring County Sheriff's Office, drove to 698 Harvard Hills Road to serve an outstanding felony warrant on Jerry Chandler, a co-defendant in this case, based on information received from Chris Garner, an agent with the Malvern Police Department Drug Task Force. The law enforcement officers believed Chandler was at the residence because his truck was parked outside the mobile home.

When Deputy Brown knocked on the door, appellant answered and learned that Deputy Brown was there to see Chandler. Appellant called out for Chandler, who then walked out of a bedroom and went outside where he was placed under arrest by Officer Garner. Deputy Brown then asked appellant if he could come inside to visit with him and Sherrell Parris, another co-defendant and the undisputed owner of the premises.1 After Deputy Brown explained that, based upon Chandler's criminal history involving narcotics, he would like to search the mobile home for any contraband he might have left behind, appellant informed Deputy Brown that it was not his house and that he would have to ask Parris. Deputy Brown then asked for and received verbal consent from Parris to search the bedroom from which Chandler had exited.

Deputy Brown walked into the bedroom and discovered methamphetamine and other items2 that could be used to manufacture methamphetamine. He then asked for and received written consent from Parris to search the entire mobile home. Agents from the group Six Narcotics Enforcement Unit arrived, and appellant and Chandler were transported to the Hot Spring County Jail. A search was conducted and numerous items were collected. On February 6, 2002, Chandler, Parris, and appellant were jointly charged with the offenses of manufacture of methamphetamine and possession of methamphetamine with intent to deliver.

On July 25, 2002, a suppression hearing was held, and appellant's motion to suppress evidence was denied. Appellant was tried separately before a jury on July 26, 2002. After the State completed its case-in-chief, appellant moved for a directed verdict arguing that other than the testimony of his co-defendants, Parris and Chandler, there was no evidence to show that he manufactured methamphetamine or possessed it with the intent to deliver. The motion was denied, as was appellant's renewed motion at the close of all testimony. Appellant was subsequently convicted of manufacturing methamphetamine and possession of methamphetamine, a lesser-included offense of the original charge of possession with the intent to deliver. He was sentenced to three years in the Arkansas Department of Correction for possession of methamphetamine and twenty years for manufacturing methamphetamine, with the sentences to run concurrently.

Motion for Directed Verdict

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walley v. State, 353 Ark. __, 112 S.W.3d 349 (2003). Although appellant challenges the sufficiency of the evidence supporting his convictions as his second point, double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the other issues on appeal. See Cummings v. State, __ Ark. __, 110 S.W.3d 272 (2003). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. 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. 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 id.

Appellant failed to preserve the challenge regarding his conviction for simple possession because under Rule 33.1(b) (2003) of the Arkansas Rules of Criminal Procedure, a motion for directed verdict must state the "specific grounds therefor." The supreme court has determined that in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, the lesser-included offenses must be addressed in the motion either by name or by apprizing the trial court of particular elements of the lesser-included offense. See Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). In the instant case, appellant's motion for directed verdict addressed only the offenses with which he was charged. Accordingly, his challenge to the sufficiency of the evidence on the simple possession conviction is not preserved for our review.

Related to the manufacturing conviction, the State argues that appellant also failed to preserve his argument regarding the application of the accomplice liability rule because he failed to obtain a ruling by the trial court that Chandler or Parris was an accomplice as a matter of law and failed to request that the trial court submit the issue to the jury. See Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003). Appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. See Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). Here, the record is devoid of any indication that appellant requested that the trial court declare Chandler or Terry to be an accomplice as a matter of law or requested any jury instructions in that regard. Accordingly, it was not error for the trial court to deny his motion for directed verdict based on want of corroboration, and we therefore affirm on this point.

Motion to Suppress

Our standard of review for a trial court's action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts, and defer to the superior position of the trial court to pass upon the credibility of witnesses. Id. Any conflict in the testimony of different witnesses is for the trial court to resolve. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136, cert. denied, 124 S. Ct. 435 (2003).

A warrantless entry into a private residence is presumptively unreasonable under the basic principles of the Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). Further, the U.S. Supreme Court has noted that, "[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31 (2001). The burden is on the State to prove that the warrantless search was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997).

It is well settled that in order to have the capacity to claim protection of the Fourth Amendment, the individual claiming such protection must have a legitimate expectation of privacy in the invaded place. See Wigley v. State, 73 Ark. App. 399, 44 S.W.3d 751 (2001). An individual must have standing before he can challenge a search on Fourth Amendment grounds. Id. A person's Fourth Amendment rights are not violated by the introduction of damaging evidence secured by the search of a third person's premises or property. Id. Additionally, appellant is not automatically entitled to standing simply because he was present in the area and on the premises searched or because an element of the offense with which he was charged is possession of the item(s) discovered pursuant to the search. Id.

This court has determined that the pertinent inquiry regarding standing to challenge a search is whether an individual manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id. Accordingly, we must first determine whether appellant has standing to challenge the search of Parris's residence.

Appellant specifically disavowed any interest, authority, or ownership of the mobile home that was searched. Both law enforcement officers testified that when they asked for consent to search the mobile home, appellant unequivocally stated that it was not his home and that theywould have to ask Parris for consent. Furthermore, at the suppression hearing, appellant himself testified that when asked for consent to search, "I told them it's not my property, I have no say so what goes on there[.]" Appellant admitted only that he and Parris were having an affair and that he would "spend the night every now and then."

In Wigley, supra, we found that an overnight guest has no reasonable expectation of privacy when the host consents to a search. Accordingly, appellant does not have standing under the Fourth Amendment to challenge the legality of the warrantless search based upon Parris's verbal and written consent.

Even if appellant had standing to challenge the search, we hold that Parris's consent to search was validly given pursuant to Rules 11.1 and 11.2(c) (2003) of the Arkansas Rules of Criminal Procedure. Appellant claims that there was no basis for probable cause to search the mobile home once Chandler had been taken into custody and was outside the residence. However, the law enforcement officers testified that it was standard procedure in a case such as this to search the area incident to the arrest to make sure the arrestee had not left behind any guns, drugs, or other contraband.

The evidence is clear that the law enforcement officers requested and received verbal consent from Parris, the undisputed owner of the residence, to search the back bedroom from which Chandler had exited. Upon entering that bedroom, Deputy Brown immediately noticed illegal items laying in plain view on the bed. He promptly exited the bedroom and returned to obtain written consent from Parris to search the remainder of the mobile home. The trial court properly held that her consent was totally and completely voluntary and intelligent.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 At the time of the arrests, appellant was sporadically residing at Parris's mobile home one to two nights a week.

2 Upon entering the bedroom, Deputy Brown discovered a mirror with powder residue, a piece of tin foil, and straw laying in plain view on the bed.