Ronald Fulton v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

RONALD FULTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-335

December 14, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR2004-1294]

HON. TIMOTHY D. FOX,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Following a bench trial, the Pulaski County Circuit Court found Ronald Fulton guilty of possession of drug paraphernalia with intent to manufacture methamphetamine, and he was sentenced to five years' imprisonment with four years suspended. Appellant argues that the trial court erred in denying his motion for dismissal because there was no substantial evidence to support his conviction. We affirm.

Detective Shanna Cobbs with the North Little Rock Police Department testified that she had received a complaint that there was "a possible methamphetamine lab" at appellant's residence. On September 9, 2003, Detective Cobbs went to appellant's residence and obtained his consent to search. Detective Cobbs recalled that there was a strong chemical odor throughout the house, and she and other officers subsequently found items associated with the manufacturing of methamphetamine. Those items found during the search were not in the courtroom during Detective Cobbs's testimony, but she identified them as they were depicted in photographs that the State sought to introduce into evidence. Inside the garage,

officers found a green plastic container that held a Mason jar, camp fuel, plastic tubing, Ziploc baggies, a funnel, and gloves with red stains on them. They also found two cans of denatured alcohol and more Mason jars on a shelf above the green plastic container. Inside the residence, officers noticed that there were red stains on the door that led to appellant's bedroom and also on the ceiling and wall of his bedroom. In addition, officers found two glass pipes and several items on a desktop in his bedroom, including cigarettes, tape measures, approximately a dozen ballpoint pens, a syringe, and a spoon.

Detective Cobbs stated that she associated the red stains with iodine, which she explained was a component in the manufacturing of methamphetamine. She testified that iodine could get on a ceiling if there were an explosion or a mishandling of chemicals during the cooking process. Detective Cobbs conceded on cross examination that the spoon and syringe, depicted in a photograph labeled as State's Exhibit 4, were items associated with the ingestion or digestion of drugs, rather than the manufacturing of methamphetamine. The trial court sustained defense counsel's objection to that particular photograph and ruled that it would not be admitted into evidence.

Detective Cobbs further testified that, following the search of his residence and garage, appellant signed a waiver-of-rights form and gave her a verbal statement. Detective Cobbs testified that appellant told her that, approximately a year prior to the search, he had allowed a white male named "Mike," whose last name appellant did not recall, to cook methamphetamine in his residence in exchange for a small amount of methamphetamine for him to sell. Appellant also told Detective Cobbs that he did not cook methamphetamine himself but that he used it.

At the close of the State's case, appellant moved for dismissal, alleging that the red stains on his bedroom door were not tested, which meant that Detective Cobbs was merelyspeculating that the stains were from iodine; although Detective Cobbs stated that there was a strong chemical odor inside the residence, she did not say that the odor was associated with the manufacturing of methamphetamine; there was no methamphetamine residue or finished product present; the main components of manufacturing methamphetamine were not present; and the items found during the search had independent, legitimate uses other than for manufacturing methamphetamine. The trial court denied appellant's motion, and he then took the stand in his own defense.

Appellant testified that he owned some of the items found during the search but that other items were present when he moved into the house or belonged to his former roommate "David" or to "Cory," a friend who frequently stayed at his house. He stated that he did not intend to use any of those items to manufacture methamphetamine, but rather he used the items legally. According to appellant, Detective Cobbs was mistaken when she referred to a man named "Mike." He said, instead, that "Cory" had cooked methamphetamine in his house approximately eighteen months prior to the search. During a six-month period that "Cory" lived in the house, appellant was living in Searcy in order to take care of his sick father. Appellant said that the residence in question "reeked" upon his return, and that he ordered "Cory" to leave. Appellant testified that he did not know that "Cory" was cooking methamphetamine until he returned from Searcy and that he did not receive any benefit from the methamphetamine that "Cory" manufactured in his house.

Appellant then renewed his motion for dismissal, and the trial court again denied the motion. The trial court found that appellant's testimony at trial was not credible at all but that Detective Cobbs's testimony regarding appellant's statement at the time of the search was credible. In addition, the trial court found that appellant was an accomplice to possession of drug paraphernalia with the intent to manufacture methamphetamine.

A motion to dismiss, identical to a motion for a directed verdict, is a challenge to the sufficiency of the evidence. Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002). On appeal from a denial of a motion for dismissal, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Circumstantial evidence is substantial if it is of sufficient force to compel a conclusion beyond mere suspicion or conjecture. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Only the evidence supporting the guilty verdict need be considered, and that evidence is viewed in the light most favorable to the State. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine. Ark. Code Ann. § 5-64-403(c)(5) (Supp. 2003). Arkansas Code Annotated section 5-64-101(v) (Repl. 1997), provides that in determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, 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 subchapters 1-6 of this chapter;

(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 an 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 facilitate a violation of subchapters 1-6 of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of subchapters 1-6 of this chapter shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia;

(7) Instructions, oral or written, provided with the object concerning its use;

(8) Descriptive materials accompanying the object which explain or depict its use;

(9) National and local advertising concerning its use;

(10) The manner in which the object is displayed for sale;

(11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(12) Direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise;

(13) The existence and scope of legitimate uses for the object in the community; and

(14) Expert testimony concerning its use.

Appellant argues that Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002), controls the outcome of this case and that the only difference between the cases is that items were found in the Gilmores' automobile, whereas items were found in his garage. In that case, Mr. and Mrs. Gilmore were arrested in a Wal-Mart parking lot after they had bought various items, including three packages of antihistamines, four cans of starter fluid, some butane, and an air freshener. During a search of their automobile, officers found four more packages of antihistamines and some butane bottles. The Gilmores were convicted of possession of drug paraphernalia with intent to manufacture methamphetamine, but this court reversed their convictions. This court found that the case against the Gilmores rested almost entirely on the expert testimony of a Drug Task Force supervisor, who testified that mere possession of the legitimate items in the quantities and combination found gave rise to a suspicion that someone may use them to manufacture methamphetamine. Accordingly, this court reversed because suspicion alone would not support the Gilmores' convictions.

Likewise, appellant argues that Detective Cobbs's expert testimony, standing alone, is insufficient evidence that he possessed the items with intent to manufacture methamphetamine and that many of the other factors enumerated in Ark. Code Ann. § 5-64-101(v) weighed in his favor. The case at bar, however, is distinguishable from Gilmore, supra, because, in addition to Detective Cobbs's expert testimony, appellant implicated himself following the search of his residence. Although appellant's testimony at trial was different from what he had told Detective Cobbs, the trial court was not required to believe his testimony because he, as the accused, was the person most interested in the outcome of the proceedings. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999). Where there is conflicting evidence, the issue becomes one of credibility to be determined by the trial court. Id. Appellant's conviction did not rest on the mere suspicion of an expert witness as in Gilmore, supra.

Next, appellant contends that this court cannot rely on Detective Cobbs's testimony about the spoon and syringe because, although those items are considered drug paraphernalia, Detective Cobbs conceded that the items were not used to manufacture methamphetamine, but rather to ingest it, which resulted in the trial court's refusal to admit Exhibit 4 into evidence. Appellant points out that the State did not file a cross appeal to challenge the correctness of the trial court's ruling to exclude that photograph, and thus this court cannot consider such evidence. While appellant objected to the introduction of the photograph itself, he did not object to Detective Cobbs's testimony that she found those items. A party has a duty to make a timely and complete objection to the admission of evidence. Gonzales v. State, 306 Ark. 1, 811 S.W.2d 760 (1991). We agree that Detective Cobbs's testimony about finding a spoon and syringe was not relevant as to whether appellant intended to manufacture methamphetamine; however, her testimony was relevant to show that appellant possessed drug paraphernalia. Accordingly, to that extent, this court has considered Detective Cobbs's testimony.

Finally, appellant argues that knowledge and purpose are not equivalent culpable mental states. He contends that proof of his knowledge that someone else manufactured methamphetamine in his house is not the same as proof that it was his conscious object that the other person possess drug paraphernalia with the intent to manufacture methamphetamine. At his trial, appellant was found guilty as an accomplice, and appellant does not challenge that finding as to his status. A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he aids, agrees to aid, or attempts to aid the other person in committing it. See Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1997). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997). A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances. Watson v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2004). Here, appellant purposely promoted and facilitated the commission of the offense by offering his house as a place to manufacture methamphetamine and by possessing drug paraphernalia associated with the manufacturing of methamphetamine. It was appellant's conscious object to facilitate the commission of the offense because he had something to gain, namely, methamphetamine to use or sell. Substantial evidence supports appellant's conviction for possession of drug paraphernalia with intent to manufacture methamphetamine.

Affirmed.

Pittman, C.J., and Hart, J., agree.