Michael Porter v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CACR00-627

JANUARY 24, 2001

MICHAEL PORTER

AN APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT

v. [CR99-3836]

STATE OF ARKANSAS HONORABLE JOHN PLEGGE, APPELLEE CIRCUIT JUDGE

REVERSED and DISMISSED

Appellant Michael Porter was convicted by a jury of manufacturing a controlled substance, methamphetamine, and possession of drug paraphernalia. He was sentenced to ten years in the Arkansas Department of Correction. On appeal, Porter contends that the trial court erred: 1) in allowing expert testimony regarding the manufacture of methamphetamine from an unqualified expert; 2) in admitting evidence without the appropriate proof of the chain of custody of the evidence; 3) in refusing to grant his motion for a directed verdict. We reverse Porter's third point on appeal.

Porter and his codefendant, Elizabeth Strom, were arrested after police went to a house located at 17424 Bradshaw and found several items associated with the manufacture of methamphetamine in boxes located in a wooded area behind the house and the carportarea of the house. Strom's mother was determined to be the owner of the house where Porter and Strom shared a bedroom. When police arrived to search the house, Strom's mother was hospitalized with terminal emphysema and Porter and Strom were reportedly visiting friends in Kansas.

Mary McClain, Strom's sister, testified that on February 6, 1999, she went to the house to retrieve personal items for her mother's hospital stay. McClain was accompanied by her niece, Shanna, Shanna's fiancé, another sister, and three infants. Upon entering the house, McClain testified that she did not think that the door to the house was locked and that she only remembered observing an open jug of antifreeze. McClain testified that her niece Shanna handed her a gray pouch containing syringes, but stated that she didn't know where Shanna got the pouch. McClain stated that Shanna began putting items in a box, after which time she carried the items outside in order to protect the children from them.

Officer Brian Starks of the Pulaski County Sheriff's Office testified that when he arrived at the house, he was met by a lady who told him that she had found what she believed to be a methamphetamine lab inside the living room of her mother's house. Starks testified that the house was a small, two-bedroom house with a carport that could be seen from the street. After being told that methamphetamine was boxed up and placed in a wooded area behind the house, Starks located the box and found items therein such as a jar and plastic tubing. Starks testified that a second box was located in the carport area of the house, and that the box contained what appeared to be AA batteries, a mason jar, and salt. Investigator Antoine McNair testified that he also searched the house on February 6, 1999. During the search, McNair stated that he found the following items: a plastic bottle with a white powder substance and clear liquid in the kitchen; `baggie' corners where thecorners had been cut off; a baby food jar containing a clear liquid and white powder residue at the bottom; a one-half pint glass container with coffee filters and a tan liquid; two pint glass jars with residue; an olive jar containing residue; an open salt container; lithium batteries; plastic tubing; a two-quart plastic container; a ceramic container with coffee filters and residue; a container of Liquid Fire; a plastic soda bottle with a hose attached to it; two plastic funnels; a quart container of acetone; one jelly jar containing dark acidic solution and plastic tubing; more coffee filters; one empty pseudoephedrine bottle; mini thin tablets; four syringes. McNair testified that following the search, he submitted all of the items found to Norman Kemper, a chemist at the State Crime Lab. The crime lab submission form, the list of items submitted to the crime lab, and the results from the crime lab analysis were received into evidence without objection. None of the items found during the search were located in the bedroom that appellant shared with Strom.

McNair testified that the bedroom shared by Strom and Porter contained photographs of Strom and Strom's driver's license. He stated that while in the bedroom, Shanna Grieble opened a dresser drawer and handed him a black notebook from the drawer. McNair testified that the notebook contained a shopping list entitled "Ingredients Needed"and listed words such as "pills, ether, jars, gloves, denatured alcohol, funnels, wok, acid, salt and filters" under the heading. The notebook also contained a poem that described the manufacturing process of methamphetamine. However, the trial court sustained appellant's objection that there was no testimony identifying the person whose handwriting was shown in the list and poem. McNair further testified that the bedroom contained both male and female clothingand that male clothing was also found in a chest in the bedroom. Porter admitted that he lived in the house with Strom and that they shared the bedroom. However, Porter denied any involvement with the methamphetamine lab components found in the house.

Porter's third point on appeal challenges the trial court's denial of his directed verdict motion. A motion for a directed verdict is a challenge to the sufficiency of the evidence, which the appellate court considers before any other points on appeal. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). When reviewing a challenge to the sufficiency of the evidence, the court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). Where the evidence is circumstantial, the appellate court must consider whether the evidence was sufficient to exclude all other reasonable hypotheses. Id.

At the close of the State's case-in-chief and at the close of all the evidence, Porter moved for a directed verdict on the basis that the State provided no proof connecting him with the items seized from the search of the house. Porter further moved for a directed verdict on the charge of manufacturing methamphetamine based on his contention that the State failed to show that he took the necessary steps to manufacture methamphetamine at the house.

Neither exclusive nor actual physical possession of a controlled substance is necessary to sustain a conviction. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994). Constructive possession is sufficient and can be inferred when the controlled substance is in the joint control of the accused and another. Id. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor shown by the State linking the accused to the contraband such as additional facts and circumstances indicating the accused's knowledge and control of the contraband. Id. In such instances, the State must prove that the accused exercised care, control, and management over the contraband and also that the accused knew the matter possessed was contraband. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000).

In this case, although Porter admits that he shared a bedroom in the home with Strom and evidence was presented that some of Porter's clothing was found in the bedroom, there is no evidence that Porter knew that the contraband was present in the home or that Porter exercised control of the contraband found at the home. Appellant was not present when the house was searched and there was no evidence that appellant had an ownership interest in the house where the contraband was found. In spite of the fact that in Strom's bedroom, police found a poem and list of ingredients that could be used in the manufacture of methamphetamine, the State could not prove the identity of the person who wrote the poem and list. Furthermore, there were no drugs located in the bedroom that appellant occupied with Strom. Based on these facts, we conclude that the evidence presented to the jury was not forceful enough to compel a conclusion beyond speculation and conjecture.

Because we find that there was insufficient evidence to sustain the jury's verdict and that the directed verdict motion should have been granted, we will not address Porter'spoints on appeal enumerated as one and two.

Reversed and dismissed.

Hart and Robbins, JJ., agree.