Doug Ray King v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

DOUG RAY KING

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-327

FEBRUARY 20, 2002

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT

[NO. CR 99-43]

HONORABLE F. RUSSELL ROGERS,

CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Arkansas County Circuit Court found the appellant, Doug Ray King, guilty of simultaneous possession of drugs and firearms, manufacturing methamphetamine, possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia. Appellant was sentenced to 1,440 months of imprisonment in the Arkansas Department of Correction. On appeal, appellant asserts that the trial court erred in the following ways: (1) in failing to grant a directed verdict in his favor; (2) in not granting a mistrial; (3) in denying his motion to suppress evidence; (4) in denying his motion to suppress his alleged confession; and (5) by running three forty-year sentences consecutively. We find no error, and affirm.

This case began when a Monroe County Sheriff found a box along the side of a road allegedly addressed to appellant. The box contained ether cans, plastic tubing, a drain

opener, and coffee filters with white residue. Investigator Barry Roy of the Arkansas State Police received the box, sealed it, and submitted it to the crime lab on February 24, 1999. A search warrant was issued and executed on March 24, 1999. The municipal judge issued the warrant based on the discovery of the box and a controlled buy from a confidential informant. The police seized items from appellant's home including: a small safe containing a memo book listing names and accounts, one Ziploc bag containing thirty-five lithium batteries, one Ziploc bag containing marijuana, a bank bag containing $24,480, several guns, including shotguns, and rifles, two crossbows, a muzzleloader, assorted ammunition, a pistol, a Ruger .357 revolver with six rounds of ammunition, bottles of Rooto, plastic tubing, glass gallon jars with ether and brown sludge, two Ziploc bags containing 12.4 grams and 20.2 grams, respectively, of methamphetamine, Tanita scales, a Tupperware dish containing approximately 27 grams of methamphetamine, Ziploc bags containing brown sludge, multiple packages of antihistamines, a tank containing anhydrous ammonia, a food processor with white residue, and a mason jar filled with liquid and pills. Investigator Roy testified that the items were sent to the Arkansas State Crime Lab on April 22, 1999. Arkansas State Crime Lab Forensic Chemist Mike Stage testified about the components necessary to make methamphetamine. The drug-related items submitted to the lab tested positive for methamphetamine hydrochloride, pseudoephedrine, and marijuana.

Appellant's first point on appeal is that the trial court erred in not granting him a directed verdict. Appellant argued that the date the State Crime Lab showed as the date it received the evidence that was allegedly found at his home to be March 3, 1999. The searchof appellant's home did not occur until March 24, 1999. Appellant also submits that there were two investigator's reports by Investigator Roy, one for March 16, 1999, and the other dictated March 22, 1999, listing the same inventory. The State argued that this was just a mistake of dates. However, appellant's argument was that the evidence must have been planted at his home. This became the substance of appellant's directed verdict motion at the close of the State's case. After the jury returned its verdicts, appellant moved for a judgment notwithstanding the verdict.1 However, appellant failed to move for a directed verdict at the close of all evidence.

"In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all the evidence." Ark. R. Crim. P. 33.1(a) (2001). "The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment." Ark. R. Crim. P. 33.1(c) (2001). A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Williams v. State, 34 Ark. App. 352, 927 S.W.2d 801 (1996). A motion for directed verdict must be renewed at the close of the case, and an attempt to renew such motion after the jury has been charged is not timely. Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). As appellant did not move for a directed verdict at the close of the case, he waives his argument on appeal regardingsufficiency of the evidence.

Appellant's second point on appeal is that the trial court erred in denying his motion for a mistrial. Appellant moved for a mistrial alleging witness tampering by Investigator Roy. On the first day of trial "the rule" was invoked. We note, that Arkansas Rule of Evidence 615 is commonly known as "the rule." Ark. R. Evid. 615 states in pertinent part: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion." On the second morning of trial appellant's attorney saw Investigator Roy in the trial judge's outer office talking with Randy Julian. Mr. Julian was about to be called as a defense witness. Investigator Roy directed Mr. Julian to points in his file on appellant referring to the box found with appellant's old address on it. The State tried to introduce the box into evidence through Investigator Roy, but was unsuccessful because Roy had no first-hand knowledge about the box. Appellant brought this to the trial judge's attention and moved for a mistrial based on witness tampering. The circuit court held a hearing on the matter; however, appellant failed to obtain a clear ruling on his motion. Our supreme court has "made it clear in the past that it is up to an appellant to obtain a clear ruling on an issue in order to preserve that point for appeal." Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001). As appellant failed to obtain a clear ruling on his motion for a mistrial, the issue is not preserved for appeal.

Appellant's third point on appeal is that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant executed at this home. Appellantasserts five points for error: (1) an insufficient affidavit to support a nighttime search; (2) an allegedly unreliable confidential informant; (3) the nondisclosure of a confidential informant; (4) the lack of service of the search warrant; and (5) the refusal to allow him to be present during the search. In reviewing a trial court's ruling on a motion to suppress, the court makes an independent determination based on the totality of the circumstances, viewing the evidence in a light most favorable to the State, and reverses only if the ruling is clearly against the preponderance of the evidence. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2001). We first examine appellant's argument that the affidavit was insufficient to support a nighttime search. An affidavit for a search warrant must set out facts showing reasonable cause to believe that circumstances exist that justify a nighttime search. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992). Those circumstances include: (a) the place to be searched is difficult of speedy access, (b) the objects to be seized are in danger of imminent removal, or (c) the warrant can only be successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. Ark. R. Crim. P. 13.2(c); Coleman v. State, supra. The existence of any one of these factors may justify a nighttime search. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). A factual basis must be stated in the affidavit before a nighttime search warrant may be validly issued. Houston v. State, supra.

In the present case, the affidavit of Investigator Roy listed the following facts as a basis for a nighttime search: a confidential informant used in a controlled buy at appellant's residence within seventy-two hours of the request for the search warrant indicated a largenumber of loaded weapons throughout the residence; the affiant had personally smelled ether at the residence; and the residence was located on flat terrain that made approach by law enforcement difficult to disguise. The affiant in this case presented specific data and fact-based conclusions regarding the dangers presented to officers, the location was difficult to approach with stealth, and the presence of explosive chemicals. We hold that there was sufficient factual basis for a nighttime search.

As for the complaint concerning the identity of the confidential informant, the State is not required to disclose an informant's identity when it is a prosecution's secret and a failure to disclose will not infringe upon the constitutional rights of the defendant. See Ark. R. Crim. P. 17.5(b) (2001). Appellant was not being prosecuted for his participation in the controlled buy. Our supreme court has repeatedly held that the trial court does not abuse its discretion in denying requests to reveal the identity of a confidential informant when the informant's involvement only supplied a lead to the officers or provided information leading to the issuance of a search warrant. Reyes v. State, 329 Ark. 539, 954 S.W.2d 199 (1997). Appellant's contention at trial was that the State conspired to plant evidence of a methamphetamine lab at his residence. The appellant bears the burden of showing that the confidential informant's testimony is essential to his defense. Id. Appellant has failed to demonstrate how the testimony of the confidential informant used in the controlled buy was essential in his defense. Thus, appellant's argument is without merit.

Next, appellant argues that the affidavit for the search warrant lacked probable cause because it did not establish the reliability of the confidential informant. Appellant submitsthat Investigator Roy failed to validate the confidential informant as required by Owens v. State, supra. Our supreme court in Owens stated that "[w]hen an affidavit in a search warrant is based, in whole or in part, on hearsay, the affiant must 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." Owens, supra at 120, 926 S.W.2d at 655. In testing an affidavit for a search warrant, the issuing magistrate must render a judgment based upon a common sense reading of the entire affidavit, and great deference must be shown his determination. Cary v. State, 259 Ark. 510, 534 S.W.2d 510 (1976). In this case the affiant stated that information provided by a reliable informant concerning the manufacture and sale of controlled substances, specifically methamphetamine from the residence of appellant, led to a controlled buy from appellant's address within the past seventy-two hours. Appellant argues that the affidavit did not give specific information, did not have a statement from the informant, did not state the amount paid for the drugs, and the affiant, Investigator Roy, did not state any previous interactions with the informant proving him reliable, and that there was no factual detail to show anything.

The following was stated in the affidavit:

The Affiant throughly searched the confidential informant with no controlled substances, contraband or money being found on the person or in the possession of the confidential informant. Buy-money was given to the confidential informant by the Affiant for the purchase of the controlled substance. The Affiant observed the confidential informant continuously as he/she traveled to the residence, watched as the confidential informant entered the residence at 259 Leder Road and then observed the confidential informant until he/she once again met with the Affiant. Upon returning to the Affiant, the confidential informant delivered the controlled substance represented tobe methamphetamine to the Affiant and was once again throughly searched. No money or contraband was found on the person, or in the possession of the confidential informant. A field test conducted on the substance purchase by the confidential informant by Investigator Roy was positive for methamphetamine.

The confidential informant has personally observed Doug King manufacturing methamphetamine at his residence on various occasions over the past sixty days.

All of these statements are factors which indicate reliability. Owens, supra.

Investigator Roy's relating the facts pertaining to the controlled buy certainly advised the judge of the underlying circumstances from which Investigator Roy concluded that the informer was reliable. As such, the municipal judge did not have to depend only upon Investigator Roy's suspicion, belief or conclusion. See Cary v. State, supra. Thus, we hold that the affidavit in this case was sufficient to support the issuance of the warrant.

As for appellant's argument regarding not being served with the warrant or present during the search in violation of Ark. R. Crim. P. 13.3(b), appellant failed to make these arguments below. We will not consider arguments raised for the first time on appeal. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001).

Appellant's fourth point on appeal is that the trial court erred in denying his motion to suppress his alleged confession. He argues that the statements made to Special Agent R. L. Newton of the Arkansas State Police were obtained by threats, calling him names, denying his request for counsel, and a promise to go easy on him if he confessed, and were, therefore, involuntary under the totality of the circumstances.

However, appellant failed to abstract his alleged confession. All that appears inappellant's abstract is the following. "Handwritten statement and typed statement of Doug King. Handwritten statement by Doug King dated March 26, 1999 at 3:10 p.m. Statement written by Officer Newton and the bottom sentence written by Doug King. Typed Statement dated March 29, 1999." The record on appeal is confined to what is abstracted. See Carter v. State, 326 Ark. 497, 932 S.W.2d 324 (1997); Moncrief v. State, 325 Ark. 173, 925 S.W.2d 777 (1996). It is the duty of an appellant to abstract such parts of the record as are material to the points argued in his brief. Ark. Sup. Ct. R. 4-3(g); Carter, supra. Appellant's failure to abstract the alleged confession precludes consideration of the merits of this argument.

Appellant's last point for reversal is that the trial court erred in running his sentences consecutively. We note that appellant actually makes two arguments under this point. First, he argues that pursuant to Ark. Code Ann. § 5-1-110 (Repl. 1997), he should not have been convicted for the three separate offenses of manufacturing methamphetamine, possession of methamphetamine with intent to deliver, and simultaneous possession of drugs and firearms. Appellant argues that these are part of the same transaction. Our supreme court has recently held that possession of a controlled substance with intent to deliver is not a lesser-included offense of manufacturing a controlled substance. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001). As for appellant's contention that any of the above offenses and simultaneous possession of drugs and firearms violated double jeopardy prohibitions, this has been decided adversely to appellant in Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000). "The General Assembly has thereby made it clear in our judgment that it wishes to assessan additional penalty for simultaneously possessing controlled substances and a firearm. We hold there was no double jeopardy violation." Id. at 40, 13 S.W.3d at 908. As in Rowbottom, we hold here there w as no double jeopardy violation.

Appellant's second argument under this point is that the trial court erred in ruling that the forty-year sentences in each of the three Class Y felony convictions would run consecutively. However, we cannot address the merits of this argument because appellant failed to properly preserve the issue for appellate review. On several occasions, we have refused to address an appellant's challenge to the trial court's decision to run sentences consecutively when the appellant failed to make an objection below. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997). Because appellant made no objection after the trial court announced its ruling that his sentences would run consecutively, we must affirm the trial court's ruling.

Affirmed.

Robbins and Roaf, JJ., agree.

1 We note that appellant failed to obtain a ruling on this motion.