James Alan Stanton v. State of Arkansas

cr02-783

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

April 15, 2004

JAMES ALAN STANTON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-783

APPEAL FROM THE CIRCUIT COURT OF CLEVELAND COUNTY, NO. CR 99-13, HONORABLE LARRY CHANDLER, JUDGE

AFFIRMED

Per Curiam

Appellant was convicted of manufacturing a controlled substance (crystal methamphetamine); possession of a controlled substance with intent to deliver; simultaneous possession of drugs and firearms; possession of drug paraphernalia; and felon in possession of a firearm. Appellant was sentenced as a habitual offender to life imprisonment on each of the first three counts and twenty years' and twelve years' imprisonment, respectively, on the last two counts. We affirmed on direct appeal. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Following a hearing, the trial court denied appellant's petition, and from that order comes this appeal.

Appellant now asserts the following claims: (1) his convictions for manufacturing and possession with intent to deliver must be vacated as they violate the protections against double jeopardy because of his conviction for simultaneous possession of drugs and firearms; (2) his convictions for manufacturing and possessing the same drugs also violate the protections against double jeopardy; (3) counsel was ineffective for failing to object to the sufficiency of the nighttime search warrant and for failing to object to the magistrate's consideration of unsworn materials; (4) counsel was ineffective for failing to seek appropriate jury instructions; and (5) this court improperly relied on the "rebuttable presumption" of Ark. Code Ann. § 5-64-401(d) to sustain his conviction for possession with intent to deliver, and counsel was ineffective for failing to object to this error. We find no merit and affirm.

Double Jeopardy

"The Double Jeopardy Clauses of the United States and Arkansas Constitutions protect criminal defendants from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Cothren v. State, 344 Ark. 697, 704, 42 S.W.3d 543, 548 (2001). Appellant's first claim on appeal is that his convictions for manufacturing methamphetamine and possession of methamphetamine with intent to deliver must be vacated as they violate constitutional and statutory prohibitions against double jeopardy because he was also convicted of simultaneous possession of drugs and firearms. Appellant raised this issue for the first time in his Rule 37 petition; however, he is permitted to do so because double jeopardy protection is a fundamental right. Rowbottom v. State, 341 Ark. 33, 37, 13 S.W.3d 904, 906-07 (2000).

According to appellant, his convictions for manufacturing and possession with intent to deliver are lesser-included offenses of the simultaneous possession charge. In denying relief, the trial court held that it was bound by this court's decision in Rowbottom, in which we rejected such an argument. The statutes at issue in Rowbottom were Ark. Code Ann. § 5-64-401(a)(1)(i) (Supp. 1999) and Ark. Code Ann. § 5-74-106 (Repl. 1997). According to Section 5-64-401(a)(1)(i):

(a) 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.

(1) Any person who violates this subsection with respect to:

(i) A controlled substance classified in Schedules I or II, which is a narcotic drug or methamphetamine, and by aggregate weight, including adulterants or diluents, is less than twenty-eight grams (28 g.), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty- five thousand dollars ($25,000). For all purposes other than disposition, this offense is a Class Y felony.

Ark. Code Ann. § 5-64-401(a)(1)(i) (Supp.1999).

Section 5-74-106 reads:

(a) No person shall unlawfully commit a felony violation of § 5-64-401 or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of:

(1) A firearm....

Ark. Code Ann. § 5-74-106(a)(1).

Rowbottom, 341 Ark. at 38, 13 S.W.3d at 907. Following our analysis, we held that the General Assembly intended for the offenses of possession with intent to deliver and simultaneous possession of drugs and firearms to be separate and that it is possible for the same conduct to violate two statutory provisions without violating the principles of double jeopardy. Id. at 40, 13 S.W.3d at 908. In coming to this conclusion, we noted:

[W]hat is most telling is that § 5-74-106 specifically refers to committing a violation of § 5-64-401, while possessing a firearm. The General Assembly has thereby made it clear in our judgment that it wishes to assess an additional penalty for simultaneously possessing controlled substances and a firearm. We hold that there was no double jeopardy violation.

Id. Although Rowbottom specifically addresses the offense of possession with intent to deliver, our holding also applies to the offense of manufacturing for the same reasons.

As mentioned above, § 5-64-401(a)(1)(i) makes it unlawful to "manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance." Section 5-74-106(a)(1) makes it a crime to "commit a felony violation of § 5-64-401 or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401" while in possession of a firearm. Moreover, by enacting the Arkansas Criminal Gang, Organization, or Enterprise Act, Act 1002 of 1993, which contains the proscription against simultaneous possession of drugs and firearms, the General Assembly made it clear that it wished to "deter and punish ongoing organized criminal activity and `to provide for

penalties that will punish and deter organized ongoing criminal activity.'" Rowbottom, 341 Ark. at 40, 13 S.W.3d at 908.

Appellant acknowledges our holding in Rowbottom but argues that it should be overruled because the General Assembly "lifted the proscription on multiple punishments only in the homicide and continuing criminal enterprise contexts" and did not create an exception for simultaneous possession. See Ark. Code Ann. § 5-1-110(d)(1). In asking this court to overrule Rowbottom, appellant has the burden of showing that our refusal to overrule our decision would result in injustice or great injury. Hill v. State, 347 Ark. 441, 453, 65 S.W.3d 408, 416 (2002). He has failed to meet that burden. Appellant's argument that his convictions for manufacturing and possession with intent to deliver are lesser-included offenses of the simultaneous possession charge is essentially the same argument we rejected in Rowbottom. The intent of the General Assembly is clear on this issue; accordingly, we find no double jeopardy violation and affirm the ruling below.

Appellant's second point on appeal is that appellant's protections against double jeopardy were also violated by his convictions for manufacturing and possessing the same methamphetamine. Again, we will permit appellant to raise this issue for the first time in his Rule 37 petition. See Rowbottom, supra. In denying this claim, the trial court cited Cothren, supra, in which this court ruled that separate convictions for these offenses do not violate double jeopardy. In Cothren, appellant argued that counsel was ineffective for failing to object on double jeopardy grounds to his convictions for both manufacturing methamphetamine and possession of methamphetamine with intent to deliver. We held that possession with intent to deliver was not a lesser-included offense of manufacturing and that a person could be convicted of both offenses without violating double jeopardy principles. Id. at 708-09, 42 S.W.3d at 551.

As part of our analysis, we looked to the case of Blockburger v. United States, 284 U.S. 299 (1932), in which the United States Supreme Court held that the double jeopardy bar applies in the context of multiple punishments where two offenses for which the defendant is punished cannot survive the "same-elements" test. Cothren, 344 Ark. at 705, 42 S.W.3d at 548. This "Blockburger" test, to which it is commonly referred, is as follows:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.... [A] single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger v. U.S., 284 U.S. at 304, 52 S. Ct. 180. The Blockburger test has been applied by this court, Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993), and the Arkansas General Assembly has codified this constitutional protection at Ark. Code Ann. § 5-1-110 (Repl.1997), which provides in relevant part:

(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense if:

(1) One offense is included in the other, as defined in subsection (b) of this section;

* * * * * *

(b).... An offense is so included if:

(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged;

Cothren, 344 Ark. at 705, 42 S.W.3d at 548-49.

Appellant tries to distinguish his case from Cothren, by arguing that both of these crimes were alleged to have been committed at the same time and place, whereas in Cothren, the methamphetamine was produced in one place and possessed in another. However, appellant fails to recognize that he was convicted of possession with intent to deliver, not simple possession. Our opinion in Cothren explains the distinction:

Applying the Blockburger test to the statutes at issue, therefore, it becomes evident that possession of a controlled substance with intent to deliver is not a lesser-included offense of manufacturing a controlled substance. A conviction for manufacturing requires proof that the defendant produced, prepared, propagated, compounded, converted, or processed a controlled substance. Ark. Code Ann. § 5-64-101(m). Possession with intent to deliver requires no such proof. Ark. Code Ann. § 5-64-401. Furthermore, as stated above, a conviction for manufacturing does not require proof of intent to deliver, an element essential to a conviction for possession with intent to deliver. Id. Because the two offenses for which Mr. Cothren was convicted each require the proof of an element not common to the other, possession with intent to deliver is not a lesser-included offense of manufacturing a controlled substance. Ark. Code Ann. § 5-1-110.

Cothren, 344 Ark. at 707, 42 S.W.3d at 549. Because appellant's convictions do not violate the principles of double jeopardy, we affirm the ruling below.

Ineffective Assistance

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant

makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors "actually had an adverse effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counsel. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, supra.

Appellant's third point on appeal is that counsel was ineffective for failing to object to the insufficiency of the search warrant justifying the nighttime search and for failing to object to the magistrate's consideration of unsworn testimony. On November 30, 1998, based on information received from informant, Kristine Wright, officers from the Cleveland County Sheriff's Department conducted a surveillance operation at the home of appellant's girlfriend, Patricia Bombino, where appellant was staying. On December 12, 1998, an affidavit for a search warrant and an attached statement signed by Wright were presented to a municipal court judge, and a search warrant was issued for the Bombino residence. The warrant was executed at 3:15 a.m.

In denying postconviction relief, the trial court noted that counsel did file a motion to suppress evidence obtained by authorities in their search; however, the motion did not attack the search on the grounds asserted in appellant's petition. According to the trial court, because these issues were not raised in the original suppression hearing, no evidence or testimony was presented to the court concerning these issues. Moreover, the trial court found that at the Rule 37

hearing, appellant did not present any evidence regarding the sufficiency of the warrant as it related to the nighttime search nor to the validity of the unsworn testimony considered by the magistrate.

Accordingly, the trial court held that it was without the benefit of facts to support a ruling, and because Arkansas law is clear that relief granted pursuant to Rule 37 must be supported by facts and not supposition, appellant was not entitled to relief. The court also noted that counsel testified that, in his opinion, the affidavit in support of the search was valid at the time; however, in light of recent appellate court decisions, his position would probably be different today. The trial court held that counsel made an informed decision not to attack the warrant, and that, along with the fact that there was no factual development of appellant's allegations, did not support a finding of ineffectiveness.

We also note that on direct appeal, appellant argued that the trial court erred in denying his pretrial motion to suppress evidence obtained in the search of Bombino's home. Stanton, supra. According to appellant, the affidavit for the search warrant was insufficient because it failed to establish particular facts demonstrating the reliability of the informant. We disagreed.

As mentioned, the affidavit for the search warrant in the instant case was based in large part

on information supplied by Wright. Id. at 593-94, 42 S.W.3d at 477. The record reflects that Cleveland County Sheriff's Deputy Trent Vollmer submitted Wright's statement to the judge, which was handwritten by another officer and signed by Wright, at the same time that he presented his affidavit. Id. at 595, 42 S.W.3d at 478. Because Wright's name, address, date of birth, and social security number were contained in her statement, this court was inclined to hold that Wright was not acting as a confidential informant. Id. However, regardless of the fact that Wright's identity was known, we found that the affidavit sufficiently established her reliability. Id.

The affidavit provided the following information: (1) on November 30, 1998, Vollmer received a phone call from Wright stating that Bombino was "cooking crystal meth" at her residence; (2) Wright informed Vollmer that she had been supplying information to the narcotics division of the Pine Bluff Police Department, at which point Vollmer contacted a narcotics detective in Pine Bluff, who confirmed that Wright had given reliable information in the past; (3) surveillance was conducted of the Bombino residence, during which time officers became aware that they had been "spotted" by the occupants of the residence; (4) a few minutes later, officers observed a fire being started behind the residence that looked like it involved some type of flammable material; (5) Wright contacted Vollmer again and corroborated the officers' surveillance activities, particularly that Bombino had seen the police watching her and as a result, had burned "everything;" (6) Wright had also warned Vollmer that there were surveillance cameras located in the residence that watched the road in front of the house and that the occupants were also in possession of "night vision devices;" (7) on December 11, 1998, Wright contacted Vollmer and stated that earlier that same day, she had been at Bombino's residence and observed a "crystal meth lab" located in Bombino's bedroom; (8) Wright also stated that there was a butane bottle in the shed, that Bombino had some powder at the residence, and that "they" had purchased some denatured alcohol that day from Lowe's in Pine Bluff. Id. at 595-96, 42 S.W.3d at 478-79.

The affidavit also contained the following language, "There are dangerous chemicals inside residence that can be destroyed. There are firearms inside residence. Speedy access hampered by residence location (open field area with only one way to get to residence[)]." On the basis of the above facts, the municipal judge checked off the following preprinted findings:

[T]he place to be searched is difficult of speedy access; or

[T]he objects to be seized are in danger of imminent removal; or

[T]the warrant can only be safely or successfully executed at nighttime or under circumstances, the occurrence of which is difficult to predict with accuracy.

As we explained in the case of Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996), the above findings are the factors necessary to justify a nighttime search:

Ordinarily, a search warrant may only be executed between the hours of 6:00 a.m. and 8:00 p.m. However, a warrant may be executed at any time, day or night, if the issuing judicial officer has reasonable cause to believe that:

1) the place to be searched is difficult of speedy access; or

2) the objects to be seized are in danger of imminent removal; or

3) the warrant can only be safely or successfully executed at nighttime or under

circumstances the occurrence of which is difficult to predict with accuracy.

Ark. R. Crim. P. 13.2(c). The use of the word "or" makes it clear that the existence of any one of these factors may justify a nighttime search.

Id. at 118-19, 926 S.W.2d at 654-55. In Owens, we affirmed the issuance of a nighttime search warrant. The warrant at issue was executed at 1:15 a.m. on December 29, 1993, and as a result, officers seized methamphetamine and various other items consistent with the manufacture of methamphetamine. Id. at 115, 926 S.W.2d at 653. In that case, the affidavit contained the following facts in support of the nighttime search: (1) hampered access to the residence; (2) the occupants of the residence had exhibited characteristics consistent with a fear of being watched and approached by law enforcement; (3) because of the possibility of weapons in the residence, safe and speedy access by authorities could only be obtained at night; (4) concerns over the possible destruction or removal of objects to be seized; (5) because officers would be forced to approach the residence at a reduced rate of speed and follow on foot, the cover of darkness was necessary for officer safety; and finally, (6) the occupants customarily sold methamphetamine out of the residence throughout the nighttime hours; therefore removal of contraband by distribution was highly likely. Id. at 117-18, 926 S.W.2d at 654. Because the affidavit presented specific fact-based conclusions regarding the difficulty of access to the residence, the possible removal of evidence, and the dangers presented to officers, we held that there was a sufficient factual basis for a nighttime search. Id. at 118-19, 926 S.W.2d at 655.

In the case of Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998), officers executed a warrant at approximately 3:30 a.m. on September 29, 1993 and seized marijuana, methamphetamine, firearms, cash, and various items of drug paraphernalia. The officer listed four "exigent circumstances" in support of a nighttime search warrant: (1) drugs in the residence were packaged and maintained in such a manner that they could easily be removed or destroyed; (2) the appellant was believed to be armed and dangerous, making the element of surprise inherent with the nighttime search essential for officer safety; (3) the appellant had intended to leave the residence; therefore, drugs could easily be removed, hidden, or destroyed; and (4) the residence was located on a hill overlooking the road, making speedy access to the property impossible. Id. at 64, 962 S.W.2d at 364. In that case, we determined that there was a sufficient factual basis to support the trial court's denial of the suppression of evidence seized in the nighttime search. Id. at 64-65, 962 S.W.2d at 364.

In the instant case, appellant asserts that there was no factual support for the magistrate's finding that a nighttime search was justified. However, like Owens and Langford, the affidavit presented specific factual information regarding more than one of the three factors required for a nighttime search. Accordingly, there was no basis upon which to object to the search. Counsel cannot be ineffective for failing to make a meritless argument. Sanford v. State, 342 Ark. 22, 28-29,

25 S.W.3d 414, 420 (2000). Moreover, because it is unlikely that such an objection would have led to the suppression of evidence, appellant has failed to satisfy the "prejudice" prong of Strickland.

Appellant goes on to claim that trial counsel was ineffective for failing to object to the magistrate's consideration of unsworn materials. Appellant seems to base his argument primarily on Ark. R. Crim. P. 13.1, which provides that the application for a search warrant shall be supported by one or more affidavits or recorded testimony under oath before a judicial officer setting forth the facts and circumstances supporting the search. As stated, Deputy Vollmer submitted Wright's statement to the judge, which was handwritten by another officer and signed by Wright, at the same time that he presented his affidavit.

Appellant argues that it was improper for the judge to consider the handwritten statement because it contained testimony not taken under oath. However, excluding the information contained in the handwritten statement, the affidavit signed by Vollmer was given under oath and was sufficient to warrant the nighttime search. Because it is unlikely that such an objection would have led to the suppression of evidence, appellant has failed to show prejudice. As for any attempt by appellant, with this argument, to challenge Wright's reliability, we reiterate our holding on direct appeal rejecting such a challenge. See Stanton, supra. Because appellant has failed to show prejudice, we affirm the ruling below.

Appellant's fourth point on appeal is that counsel was ineffective for failing to seek appropriate jury instructions. According to appellant, counsel should have sought instructions on the residence defense, accomplice corroboration, and "mere presence." As for the first instruction, Ark. Code Ann. § 5-74-106(d) (Repl. 1997) provides that it is a defense to the charge of simultaneous possession of drugs and firearms if "the defendant was in his home and the firearm was not readily accessible for use." In denying relief, the trial court found that there was no support for this instruction but that had it been given, it was unlikely that the instruction would have made a difference in the outcome of the trial. According to the trial court, although it may have been error for counsel not to request the instruction, appellant failed to show that but for counsel's error, the jury would have had a reasonable doubt respecting guilt.

We have held that there must be a rational basis in the evidence to warrant the giving of an instruction. A party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Where the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully and fairly declare the law applicable to that defense; however, there is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction.

Kemp v. State, 348 Ark. 750, 761-62, 74 S.W.3d 224, 230 (2002) (internal citations omitted).

At trial, Bombino testified that she allowed appellant to stay at her home in the weeks prior to December 12, 1998. According to Bombino, on the day appellant was arrested, she saw him lying on the floor of her home with a 9-millimeter pistol either in his hand or on his chest. She also identified the pistol that was admitted into evidence as the one belonging to appellant. According to Investigator Dennis Roberts of the Arkansas State Police, when he executed the search warrant at Bombino's residence, he seized a 9-millimeter pistol from the floor in the living room, and the pistol contained a magazine.

First, we note that appellant was staying at Bombino's residence at the time of the search. While there may be a dispute as to whether appellant was in "his home" or whether he actually resided elsewhere, there is no dispute that appellant was in the house where the drugs and gun were located. See Vergara-Soto v. State, 77 Ark. App. 280, 284, 74 S.W.3d 683, 685-86 (2002) (citing Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000)). As this court noted in Gilbert, even if appellant had proven that he was in his home, he has failed to prove that the gun was inaccessible for use; thus, he could not avail himself of the defense. See Vergara-Soto, 77 Ark. App. at 284, 74 S.W.3d at 685-86.

As for the meaning of "readily accessible," we look to the case of Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997). When police entered Manning's home, they found him in the kitchen. Following a search, police found two guns wrapped in a ski mask on the top shelf of the bedroom closet. Id. at 700-01, 956 S.W.2d at 185. While in the bedroom, police also found cocaine in the pocket of a jacket hanging in the closet and cocaine powder in the pocket of a pair of jeans in the dresser drawer. Drug paraphernalia was also found in the kitchen. Id. at 701, 956 S.W.2d at 185. In Manning, we held that the gun was readily accessible because Manning had a loaded gun near a supply of illegal drugs, both of which were within his reach. Id. at 704, 956 S.W.2d at 187. Accordingly, a gun may be readily accessible even if it is located in another room. Id. at 703-04, 956 S.W.2d at 187. Because the gun seized from the Bombino residence was readily accessible to appellant, there was no basis upon which to request such an instruction. Counsel is not ineffective for failing to make a meritless argument. Sanford, supra. Moreover, appellant has failed to show that had the instruction been given, it would have made a difference in the outcome of the trial. We therefore affirm the ruling below.

Appellant also claims that counsel was ineffective for failing to request instructions on accomplice corroboration. Arkansas Code Annotated § 16-89-111(e)(1) (1987), the statute in effect at the time of the offenses, provided that a person could not be convicted of a felony upon the testimony of an accomplice unless that testimony was corroborated by other evidence connecting the person to the crime. According to appellant, Bombino was an accomplice; therefore, counsel should have sought instructions dealing with accomplice corroboration. See AMCI2d 402, Accomplice Status Undisputed-Corroboration and AMCI2d 403, Accomplice Status in Dispute-Corroboration. He also asserts that the following instruction on "mere presence" should have been requested:

Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice. Therefore, if you find that ___________________ was only present while a crime was being committed and did not have a legal duty to act, then he is not an accomplice.

AMCI2d 404.

In denying relief, the trial court held that while these instructions would have been given if a request had been made, the fact that they were not requested was not grounds to grant relief. The trial court cited the "substantial corroboration" of Bombino's testimony to support each of appellant's convictions. Moreover, the trial court noted that the jury's verdict and imposition of punishment was a "clear indication of how certain the jury was of the guilt of the defendant." The trial court found that the requested instructions would have made no difference in the outcome of the trial as there was "not one iota of proof" to support appellant's claim that the requested instructions would have led to his acquittal.

In the case of Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002) , we examined the issue of the sufficiency of corroborating evidence:

When offered to support the testimony of any accomplice, corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice's testimony. The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission.

Id. at 336, 78 S.W.3d at 108 (internal citations omitted).

In the instant case, Deputy Vollmer testified at trial that appellant's truck was found at the Bombino residence and that a garbage bag found in the back of the truck contained four cans of denatured alcohol, four punctured starting fluid cans, ten bottles of pseudoephedrine cold medicine, four syringes, and one empty insulin syringe box. During the search of Bombino's residence, a receipt for the purchase of lithium batteries with appellant's name on it, dated December 6, 1998, was also found. Appellant's mother testified that her son had a safe that looked like the one found by officers inside of a dresser cabinet in the master bedroom . A mason jar containing lithium strips hanging inside a petroleum-based, clear liquid was found inside the safe. In addition, appellant identified a letter he wrote to Bombino while in jail awaiting trial, which stated that she was going to allow appellant to do one more "reaction." The letter also stated that appellant removed the following items from Bombino's home: 5,000 soaking [tablets], 280g of powder, 72 batteries, 4 cases of fluid, and 1 gallon of acid.

Excluding Bombino's testimony, there was sufficient corroborating evidence to establish that appellant was actively participating in the manufacture of methamphetamine. Even if we find that the issue of accomplice corroboration should have been submitted to the jury, postconviction relief is not required if the testimony of the accomplice was corroborated. See, e.g., McGehee v. State, 348 Ark. 395, 409, 72 S.W.3d 867, 875 (2002). Moreover, given the above evidence, appellant has failed to show that had an instruction on "mere presence" been submitted to the jury, that the outcome would have been different. Accordingly, we affirm the ruling below.

Appellant's final point is that this court improperly relied on the "rebuttable presumption" of Ark. Code Ann. § 5-64-401(d) to affirm his conviction for possession of methamphetamine with intent to deliver and that counsel was ineffective for failing to object to this error. Appellant is attempting to seek postconviction relief based on an allegation that our opinion contains an error of law, which is the equivalent of a petition for rehearing. In the context of Rule 37, such relief is not available. See Johnson v. State, 321 Ark. 117, 136, 900 S.W.2d 940, 951 (1995). According to our holding in Johnson, allowing appellant to make such an argument in a Rule 37 petition would put the trial court in a position of reviewing the holding of this court. Id. If an opinion of this court contains an error of law, the proper remedy is through a petition for rehearing pursuant to Ark. Sup. Ct. R. 2-3 (2002). Id. Because such a claim is not cognizable in Rule 37 proceedings, we affirm the trial court's denial of relief.

As for appellant's claim of ineffective assistance of counsel, he does not allege that counsel should have filed a petition for rehearing pursuant to Ark. Sup. Ct. R. 2-3. Even if appellant had made such an argument, he has failed to demonstrate any error by this court. Accordingly, we affirm the trial court's denial of relief.

Affirmed.

Glaze, J., not participating.