John W. Turnage v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION I

JOHN W. TURNAGE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-777

FEBRUARY 7, 2001

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[NO. CR00-430]

HONORABLE LANCE LAMAR

HANSHAW, CIRCUIT JUDGE

AFFIRMED

Appellant John W. Turnage was convicted by a jury of possession of drug paraphernalia with intent to manufacture methamphetamine, which is a Class B felony pursuant to Ark. Code Ann. § 5-64-403(c)(5) (Supp. 1999). He was sentenced to ten years in the Arkansas Department of Correction and fined $7500. Mr. Turnage now appeals, arguing that the trial court erred in denying his motions for directed verdict. Specifically, he contends that the State failed to prove that he possessed the contraband or that it was being possessed with the intent to manufacture methamphetamine. We find no error and affirm.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Sera v. State, 341 Ark. 415, 17 S.W.2d 61 (2000). On appeal, we review the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support theverdict.

Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty, without resort to conjecture. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). Circumstantial evidence may be sufficient to support a conviction, but only if it excludes every other reasonable hypothesis consistent with innocence. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

Officer Steve Rich, a narcotics investigator for the Lonoke County Sheriff's Department, testified for the State. He testified that he set up surveillance of Mr. Turnage's residence in August 1999, and that he observed what he considered to be excessive traffic coming and going from the house. On the evening of August 7, 1999, Officer Rich approached the door of the residence. He looked through the window of the house and saw three men passing a suspicious object back and forth and then one of the men placed the object in a bag of dog food. Officer Rich knocked on the door, and after a brief pause, Mr. Turnage answered. Mr. Turnage told Officer Rich that the house belonged to his father but that he lived there. Officer Rich smelled burning marijuana and asked to search the house, and Mr. Turnage consented to the search.

Officer Rich looked inside the bag of dog food and found a tin containing marijuana and paraphernalia. He then called other police officers to assist in searching the rest of the house. During the search, the officers entered a spare bedroom that was in disarray, and seized a box that was sitting on a shelf in plain view. Inside the box were coffee filters, glass bowls with residue, a root beer bottle, and a box of salt. In the master bedroom where Mr. Turnage slept the officers found a plastic bag containing residue inside a dresser drawer. The officers also found a plastic container in the back yard, which was in plain sight and smelled of ether. Officer Rich testified that no one was staying in the bedroom from which the box was seized, but that Mr. Turnage told him a friend had been sleeping there a few weeks earlier.

Officer Rich testified that, in addition to the items seized, a few more items would have been necessary for the production of methamphetamine. When he confronted Mr. Turnage about the items, Mr. Turnage denied any knowledge of them. Later, Mr. Turnage said that they might belong to James Willie Roberts, the man who had previously lived with him.

Norman Kemper, a forensic chemist employed with the Arkansas State Crime Lab, performed tests on the suspected contraband. He stated that the bag found in Mr. Turnage's bedroom contained residue that tested positive for methamphetamine, leading him to believe that methamphetamine had been stored in the bag. Mr. Kemper also found methamphetamine residue on the bowls found in the spare bedroom. Inside the root beer bottle he found pseudoephedrine and alcohol, which he stated were necessary for the manufacture of methamphetamine. Mr. Kemper testified that the items he tested were all components that can be used to manufacture methamphetamine, but he acknowledged that additional ingredients would have been necessary to complete the process.

Mr. Turnage's finance, Janelle Hughes, testified on his behalf. She indicated that, at the time the house was searched, she and two other people lived with Mr. Turnage. Ms. Hughes further testified that Mr. Roberts and his girlfriend previously lived at the houseand that when they vacated they left clothes, boxes, and their dog behind. Ms. Hughes denied having any knowledge of the contraband found in the box, and stated that she was not aware of any controlled substance being manufactured on the premises. Ms. Hughes testified that she no longer uses methamphetamine, but that she used it approximately one month prior to Mr. Turnage's arrest.

For reversal, Mr. Turnage argues that there was insufficient evidence to link him to possession of the items found in the box in the spare bedroom. In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), our supreme court announced:

Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Where, however, there is joint occupancy of premises, then some additional factor must be present linking the accused to the contraband. The State must prove that the accused exercised care, control and management over the contraband and that the accused knew that it was in fact contraband.

Id. at 616, 786 S.W.2d at 822 (citing Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988)). Mr. Turnage submits that the house at issue was occupied by several individuals and that there were no factors, other than joint-occupancy, linking him to possession of the contraband. He further notes that there was testimony that showed Mr. Roberts and his girlfriend were the most recent residents to use the bedroom where the box containing contraband was found. Under these circumstances, Mr. Turnage asserts that his conviction should be reversed based upon insufficient evidence that he controlled any contraband.

We hold that there were sufficient additional factors to link Mr. Turnage with possession of the contraband. At the time of the search, the only people present in theresidence other than Mr. Turnage were his young daughter and two other men. Both men told Officer Rich that they were only visiting. Mr. Turnage's fiancée testified that Mr. Turnage's daughter did not live with him but was only there for visitation. She further indicated that she lived with Mr. Turnage in the house, along with the other two men; however, the jury was not required to believe this testimony as it was its duty to judge the credibility of witnesses. See Brown v. State, 35 Ark. App. 156, 814 S.W.2d 918 (1991). Ownership of a residence is an additional factor linking an accused to contraband found in the residence. See Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). While the house may have belonged to Mr. Turnage's father, Mr. Turnage acknowledged to the police that he lived there, and he was the person who answered the door and gave Officer Rich consent to search. In addition, the box containing the contraband was found in plain view in a bedroom which was not currently being used by anyone, and a plastic container emitting an odor of ether was found in plain view in the backyard. Finally, traces of methamphetamine were found not only on the materials recovered from the box in the spare bedroom, but also in a plastic bag retrieved from the master bedroom where Mr. Turnage slept. These factors amounted to substantial evidence that Mr. Turnage had control over the contraband at issue.

Mr. Turnage's remaining argument is that, even if he constructively possessed the items found in the box, there was insufficient evidence that he possessed the items with the intent to manufacture methamphetamine. We find this argument unpersuasive. 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. Stegall v. State, 340 Ark. 184, 8 S.W.3d 538(2000). In the instant case, there was evidence that all of the materials found in the box could be used in the process of manufacturing methamphetamine, and some of the items contained methamphetamine residue. This circumstantial evidence supported the jury's finding that Mr. Turnage possessed the paraphernalia with the intent to manufacture methamphetamine.

Affirmed.

Neal, J., agrees.

Griffen, J., concurs.