Daniel R. Fornes v. State of Arkansas

ar00-920

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

DANIEL R. FORNES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-920

APRIL 25, 2001

APPEAL FROM THE BOONE

COUNTY CIRCUIT COURT

[NO. CR 99-121]

HONORABLE ROBERT

MCCORKINDALE, II,

CIRCUIT JUDGE

AFFIRMED

Appellant Daniel Fornes was convicted by a jury of manufacturing methamphetamine, simultaneous possession of drugs and firearms, possession of drug paraphernalia, possession of pseudoephedrine with intent to manufacture methamphetamine, and fleeing in a vehicle. The jury sentenced him to ten years in prison for each of the first two convictions, and for the remaining offenses he was sentenced to terms of three years, one year, and one day, respectively. The jury recommended that the sentences run concurrently; however, the trial court departed from the jury's recommendation and ordered the two ten-year sentences to run consecutively for a total of twenty years in the Arkansas Department of Correction. Mr. Fornes now appeals.

For reversal, Mr. Fornes raises three arguments. First, he contends that the trial court

erred in failing to suppress all of the evidence seized by the police during their searches. Next, he argues that there was insufficient evidence to support his convictions of possession of pseudoephedrine with intent to manufacture methamphetamine, and simultaneous possession of drugs and firearms. Finally, Mr. Fornes asserts that the trial court abused its discretion in ordering consecutive sentences. We affirm.

At the suppression hearing, Officer Paul Woodruff testified for the State. He stated that, on March 20, 1999, a confidential informant contacted him and said that two days earlier Mr. Fornes was next door to his residence attempting to manufacture methamphetamine. The informant further revealed that Mr. Fornes was driving a Toyota motor home with Arkansas license plate "087CXN," and that he drove it to Jim Shields' residence in Harrison and parked it in the basement garage with the purpose of making methamphetamine. On the same day, another informant called Officer Woodruff and, after speaking with the second informant, Officer Woodruff proceeded to Mr. Shields' residence and found Mr. Fornes' motor home parked in the basement garage. Officer Woodruff began surveillance of the home on March 20, 1999, and it continued for the next ten days.

After ten days of surveillance, Officer Woodruff swore out an affidavit, which led to the issuance of a warrant to search the house and motor home for contraband. The affidavit provided, in pertinent part:

On 3-20-99 at 1:25 pm., Detective Sergeant Paul Woodruff of the Harrison Police Department Narcotics Division was contacted by a cooperative reliable informant (C.I.) working for the 14th Drug Task Force. The (C.I.) stated that Daniel Fornes had asked a friend of the (C.I.'s) to use his/her residence on 3-19-99 to set up a methamphetamine lab and manufacture methamphetamine at the residence. The (C.I.'s) friend turned Fornes' offer down. He (C.I.) learned that Fornes on 3-20-99 drove his green 1977 Toyota motorhome to James (Jimmy) Doyle Shields' residencein Harrison, Arkansas and parked the vehicle in the basement of Shields' residence. The (C.I.) gave Sgt. Woodruff the Arkansas license plate of Fornes vehicle "087CXN."

The (C.I.) added that Fornes was going to manufacture methamphetamine at Shields' residence and that Fornes uses the vehicle to transport chemicals and glassware to the methamphetamine lab sites.

On 3/20/99 Sgt. Woodruff drove to the Shields' residence. Sgt. Woodruff saw Fornes' vehicle parked in Shields' basement with Arkansas license plate 087CXN, which is a green 1977 Toyota motorhome with VIN number RN28056282, belonging to Daniel Fornes of RR 1 Box 237 in Saint Joe, Arkansas.

On 3-20-99 at approximately 3:30 p.m., Sgt. Woodruff was contacted by another cooperative reliable informant (C.I.). The (C.I.) told Sgt. Woodruff that on 3-19-99 Daniel Fornes and others manufactured methamphetamine in a cabin in Searcy County Arkansas. The (C.I.) was given some of the methamphetamine that Fornes had manufactured. Fornes was going to manufacture more methamphetamine somewhere, but had to send someone to Little Rock on 3-20-99 for more chemicals.

The (C.I.) told Sgt. Woodruff that Fornes was transporting the lab and chemicals in his vehicle, which looks like a motorhome.

On 3-20-99 at 11:00 p.m., Sgt. Woodruff drove to the Shields' residence and the Fornes' vehicle looked to be parked in the basement with the basement lights on. Sgt. Woodruff ended the surveillance on 3-21-99 at 12:30 a.m.

On 3-22-99 at 11:59 a.m., Sgt. Woodruff drove to the Shields' residence and the Fornes' vehicle looked to be parked in the basement. The basement door was closed and you can see through the windows of the door, what looked to be the shape of Fornes' vehicle.

On 3-24-99 at 10:30 p.m., Sgt. Woodruff and investigator Harris drove to the Shields' residence. Sgt. Woodruff walked through an open field beside the Shields' residence for a closer look through the windows of the basement door. Shields' dog started to bark and Sgt. Woodruff was unable to see through the windows to confirm if Fornes' vehicle was parked in the basement from the open field.

3-25-99 through 3-28-99 Sgt. Woodruff and/or Investigator Harris set up surveillance on the Shields' residence. The basement door had been down during the surveillance of the Shields' residence and the Fornes' vehicle had not been seen.

On 3-29-99 at 5:30 p.m., Sgt. Woodruff and Investigator Harris noticed that the Shields' basement door was open. Officers saw the Fornes' vehicle parked in the basement. Officers also noticed two vehicles parked at the residence that had not been there during any of the surveillance at the residence.

One of the vehicles was a 1989 white Lincoln four door with Arkansas license plate, ZSI127 registered to "Winners Circle" Auto Rental. The vehicle was parked in front of the basement door. The other vehicle was a red pick-up parked in the driveway.

On 3-29-99 at approximately 6:40 p.m., Investigator Harris and Investigator Jenkins set up surveillance at the Shields' residence. The red pick-up had moved to the basement side of the Shields' residence. The white vehicle was still parked in front of the basement door, and the rear door to the Fornes' vehicle was open with at least one male standing in the basement, next to the Fornes' vehicle.

Investigator Harris and Investigator Jenkins during surveillance noticed what looked to be two or three white males in the basement with the basement lights on. The basement door was closed by one of the subjects at approximately 7:10 p.m., with the subjects staying in the basement with the Fornes' vehicle. Fornes' vehicle rear door was still open, as the basement door closed.

A person opened a basement door at approximately 8:05 p.m., and walked to the white vehicle. The subject opened the vehicle's door, stayed a few minutes and returned to the basement.

Sgt. Woodruff relieved Investigator Harris and Investigator Jenkins at 8:20 p.m. Sgt. Woodruff noticed Shields walked to his vehicle parked in the driveway. Shields looked around, then opened the vehicle's drivers side door. Shields reached into the vehicle. Then again looked around, and closed the vehicle's door. Shields walked back into his residence and turned the front porch light off.

Shields at 8:39 p.m., left his residence in his vehicle. The lights in the Shields' basement were on. A white full size pick-up arrived at the Shields' residence at 8:43 p.m., and parked in the driveway. The white male from the vehicle entered the Shields' residence, through the front door.

Shields at 8:47p.m., drove past his residence (northbound) on State Hwy. 7. Shields drove approximately one quarter mile to the "American Gas" Company and then turned around. Shields drove back to his residence at a slow speed, as if to check for surveillance in the area.

The white pick-up left the Shields' residence at 9:12p.m., (southbound) on State Hwy. 7. The white vehicle and the male driver was at the Shields' residence for 29 minutes. The front porch light was turned back on, as the white vehicle was leaving the residence.

Sgt. Woodruff ended the surveillance of the Shields' residence at 9:40 p.m., and at 11:35 p.m., started the surveillance back on the Shields' residence. Sgt. Woodruff found the basement lights were still on and Fornes' vehicle was still parked in the basement. The white rental vehicle was parked in the same location. As was Shields' vehicle.

Sgt. Woodruff ended the surveillance on 3-30-99 at 1:03 a.m., the basement lights were on with what looked to be movement in the basement during the surveillance.

On 3-30-99 at 7:50 a.m., Sgt. Woodruff drove past the Shields' residence and found the Winner Circle rental vehicle still parked in front of the basement door.

Sgt. Woodruff believes that Fornes, who has been convicted of possession ofa controlled substance, and who is awaiting trial in Russellville, Arkansas and in Searcy County, Arkansas on drug charges (Fornes was arrested in Searcy County for possession of a controlled substance with intent to deliver methamphetamine and for conspiracy to manufacture a controlled substance methamphetamine).

Fornes' vehicle and Shields' residence needs to be searched for items used to manufacture methamphetamine, due to the danger of death or serious bodily harm from the chemicals used to manufacture methamphetamine.

. . . .

The two reliable informants have given Sgt. Woodruff and other law enforcement officers reliable information which has lead to felony arrests and on going investigations of felony drug violations.

Officer Woodruff testified that, during the search, several suspicious items were found in or around Mr. Fornes' motor home, including cooking pots, plastic bowls, an electric fan with residue, coffee filters, used syringes, and books on chemistry and surveillance. Officer Woodruff further stated that items of contraband were found in Mr. Shields' residence.

When the search began, Mr. Fornes was not present, but as it was being conducted he arrived in the white rental car. According to Officer Woodruff, Mr. Fornes started to pull into the driveway but then fled in the vehicle. Officer Woodruff was able to stop Mr. Fornes about a mile away and arrested him for fleeing and driving on a suspended license. At the time, a passenger, Cheryl Locke, was also present in the car. An inventory search of the vehicle produced a plastic bag containing white powder, salt, a scale, a loaded handgun, and a checkbook bearing Mr. Fornes' name.

At the trial, Officer Woodruff gave detailed testimony as to the numerous items seized from the residence, motor home, and rental car. On cross-examination, Officer Woodruffacknowledged that during his surveillance of the residence he never actually saw Mr. Fornes, and that the rental car Fornes was driving when he was stopped had been rented to a Jamie Dakos.

Norman Kemper of the Arkansas State Crime Lab visited the residence and found indications that methamphetamine was being produced. He found methamphetamine on many of the seized items, including coffee filters, bowls, plastic tubing, mirrors, a skillet, and a fan. Mr. Kemper indicated that the white powder seized from the rental vehicle tested positive for pseudoephedrine.

Jim Shields and Shelly Boswell both resided in Mr. Shields' residence at the time of the search. Both testified that the motor home belonged to Mr. Fornes and that he had been temporarily living with them. Ms. Boswell testified that she used methamphetamine that had been provided by Mr. Fornes, and Mr. Shields stated that Mr. Fornes was making methamphetamine while staying at his house.

Mr. Fornes testified on his own behalf, and acknowledged staying at the house prior to his arrest. However, he denied possessing any of the contraband found around his motor home or in the residence. He admitted that he owned the handgun and digital scales, but denied owning the pseudoephedrine seized from the rental vehicle. He explained that it was found under the front seat in a lady's cigarette case, and that he did not know that it was there until it was uncovered in the search.

Because one of Mr. Fornes' arguments challenge the sufficiency of the evidence, we will consider that argument before addressing other alleged trial errors. See Sera v. State,341 Ark. 415, 17 S.W.3d 61 (2000). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion beyond suspicion and conjecture. Id. On appeal, we review the evidence in the light most favorable to the State, considering only that evidence that tends to support the verdict. Id.

Mr. Fornes challenges the sufficiency of the evidence as to two of his convictions: possession of pseudoephedrine with intent to manufacture methamphetamine, and simultaneous possession of drugs and firearms. The crux of his argument is that, since the pseudoephedrine was found in a jointly occupied rental vehicle, and there were no additional factors linking him to possession of the methamphetamine precursor, the State failed to prove constructive possession. Absent substantial evidence of illegal possession of the pseudoephedrine, Mr. Fornes contend that the above two charges should have been dismissed, notwithstanding his admission that he possessed a firearm.

In support of his sufficiency argument, Mr. Fornes cites Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999), a case in which this court reversed the appellant's cocaine-possession conviction because the State failed to prove constructive possession of the contraband in a jointly-occupied vehicle. In that opinion, we outlined the test for determining constructive possession in such cases, and announced:

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Possession of drugs can be proved by constructive possession. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Constructive possessioncan be implied when the drugs are in the joint control of the accused and another. Id. However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Id. There must be some additional factor linking the accused to the drugs. Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband in plain view, (2) whether the contraband is found within the accused's personal effects, (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it, (4) whether the accused is the owner of the automobile, or exercised dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).

Miller v. State, 68 Ark. App. at 335, 6 S.W.3d at 814.

In the case at bar, the State produced substantial evidence that Mr. Fornes constructively possessed the pseudoephedrine. In Miller v. State, supra, there was no additional factor linking the accused to the contraband because the appellant was a rear-seat passenger in his friend's car, the contraband was not in plain view or under appellant's exclusive control, it was not found near appellant's seat, and he did not act suspiciously. In the present case, however, there were factors linking Mr. Fornes to the contraband. Most importantly, Mr. Fornes demonstrated control over the vehicle in that he was driving it when it was stopped, admitted that he had driven it on the day before, and this vehicle had also been seen parked at Mr. Shields' residence during police surveillance. In addition, Mr. Fornes acted suspiciously by fleeing from the police by driving the vehicle at a high rate of speed. Flight to avoid arrest is admissible as a circumstance in corroboration of evidence tending to establish guilt. See Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). While the bag of pseudoephedrine was not in plain view, there was evidence that it was contained in a cigarette case between the front seats, which was in plain view and accessibleto Mr. Fornes. Finally, other items that were seized from the car belonged to Mr. Fornes, including a handgun, scales, and checkbook. From this evidence, the jury did not have to speculate in finding that Mr. Fornes possessed the pseudoephedrine, and thus we reject his challenges to the sufficiency of the evidence.1

We next address Mr. Fornes' argument that the trial court erred in failing to grant his motion to suppress the evidence seized by the police. In particular, he contends that the affidavit was insufficient to support the search warrant. Arkansas Rule of Criminal Procedure 13.1(b) provides that, if an affidavit is based on hearsay, "the affiant or witness shall set forth particular facts bearing on the informant's reliability and shall disclose, as far as practicable, the means by which the information was obtained." Mr. Fornes submits that the affidavit was based on the hearsay statements of the unnamed confidential informants, and that there was noncompliance with the rule because their reliability was not established. In addition, Mr. Fornes asserts that there was no evidence that either of the informants had any personal knowledge, but rather were relying on information obtained from other people, which they then relayed to Officer Woodruff. Under these circumstances, he argues that the warrant was issued without probable cause. Since there was no probable cause to search theresidence or his motor home, Mr. Fornes contends that the items seized from these locations should have been suppressed. In addition, he asserts that the stop of the rental vehicle arose from the illegal search improperly authorized by the search warrant; therefore, the items seized as a result of the stop of the rental car should have also been suppressed.

When this court reviews a trial court's ruling on a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000). Further, this court will only reverse a trial court's ruling on a motion to suppress if the ruling was clearly erroneous. Id. In the instant case, we hold that the trial court's denial of Mr. Fornes' motion to suppress was not clearly erroneous.

Our supreme court has stated that it is no longer a fatal defect if an affidavit fails to establish the veracity of the informant if the affidavit, viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). It is significant that Officer Woodruff did not attempt to obtain a search warrant based on the information given by the informants alone; rather, he waited ten days, during which he conducted surveillance of the suspected premises. During that span, he confirmed that Mr. Fornes' motor home was parked in the basement of the residence, which was consistent with the first informant's tip. The police also saw Mr. Shields walk to a parked vehicle on the night of March 29, 1999, and then look around, retrieve an item from the car, and look around again before reentering his home and turning off the porch light. Shortly thereafter,Mr. Shields drove only one-quarter of a mile down the road and turned around and returned to his home, during which time he was driving slowly as if to check for surveillance in the area.

Although Mr. Fornes submits that there was little or nothing to establish the reliability of the informants, we disagree. In addition to Officer Woodruff's sworn statement that both men had provided reliable information in the past that led to felony arrests, the reliability of the first informant was bolstered by the fact that some of the information he provided was independently corroborated. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). The information given by the informants was further credited because it was subsequently discovered that Mr. Fornes had previously been convicted of possession of a controlled substance and was awaiting trial in Searcy County on other drug charges. While Mr. Fornes asserts otherwise, a reasonable inference could be drawn that the information provided by at least the second informant, and possibly the first, was based on personal knowledge. The affidavit, when viewed as a whole, provided a substantial basis to believe that contraband used in the manufacture of methamphetamine would be found at the residence and in the motor home, and thus no error was committed in refusing to suppress the evidence.

Mr. Fornes' remaining argument is that the trial court abused its discretion in ordering his ten-year sentences to be served consecutively. The jury recommended concurrent prison terms, and Mr. Fornes contends that the trial court's departure constituted reversible error because prior to announcing its decision it stated, "You are also set for trial in Searcy County tomorrow morning, also in connection with drugs." Mr. Fornes submits that the trial court'sreliance on other pending charges was an improper consideration, and that in effect he was being punished in the present case for offenses alleged in another.

Mr. Fornes' argument regarding his sentencing is not preserved for review. Our supreme court has specifically held that where an appellant does not object to his terms of imprisonment being imposed consecutively, the court will not address the argument on appeal. Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). Because Mr. Fornes failed to make an objection below, thus giving the trial court an opportunity to correct the alleged error, we decline to address his argument.

Affirmed.

Vaught and Crabtree, JJ., agree.

1 In Mr. Fornes' "statement of the case," he tersely alludes to the contention that possession of pseudoephedrine and firearms does not come within the terms of the simultaneous-possession-of-drugs-and-firearms statute. However, he fails to raise this contention in the "Argument" section of his brief, so we need not address it. Furthermore, this argument was not raised before the trial court when Mr. Fornes made his directed-verdict motions, and thus we would have been unable to reach the merits even had it been argued in appellant's brief. See Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994).