Donald W. Beason v. State of Arkansas

ar01-878

DIVISION IV

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR01-878

January 9, 2002

DONALD W. BEASON AN APPEAL FROM HOT SPRING

APPELLANT COUNTY CIRCUIT COURT

[CR00-59-1]

V. HON. JOHN W. COLE, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Donald Beason appeals from his conviction for possession of drug paraphernalia with intent to manufacture. He argues that the trial court erred in denying his motion to dismiss the charge against him.

Appellant was charged with the manufacture of a controlled substance (methamphetamine), possession of methamphetamine with intent to deliver, and possession of drug paraphernalia with intent to manufacture. The charges were based upon evidence found after police searched the home of an acquaintance, Roy Matthews, whom appellant was visiting, and after searching appellant's girlfriend's car, which appellant had driven to Matthews' home.

On February 21, 2000, in response to an anonymous phone call, Officers PatMahoney and Kirk McClenahan of the Hot Spring County Sheriff's Office conducted a "knock and talk" at Matthews' mobile home. Matthews talked to the deputies outside of his mobile home; appellant remained inside. The officers viewed several items on the porch of Matthews' home known to be used in the manufacturing of methamphetamine and placed Matthews under arrest. Matthews then consented to a search of his home. Upon finding appellant inside, the officers placed him under arrest. Appellant agreed to allow the officers to search his girlfriend's car. This search revealed two bottles of ephedrine, a commonly used ingredient in manufacturing methamphetamine. The officers further searched Matthews' home and found methamphetamine and other materials used in its manufacture. Appellant was charged as noted above.1

Appellant's trial was held on January 23, 2001. He timely moved for a directed verdict at the close of the State's case and after the close of all of the evidence. The trial court denied the motion. Appellant was acquitted of charges of manufacture of a controlled substance, methamphetamine, and possession of methamphetamine with intent to deliver, but was convicted of the charge of possession of drug paraphernalia with intent to manufacture. He was fined $5,000 and sentenced to serve five years in prison.

I. Testimony

The evidence adduced at trial was as follows. McClenahan testified that on or around the front porch of Matthews' residence, he observed iodine bottles, a bottle of muriatic acid,and a coffee can containing a white cloth that appeared to be stained by iodine. He also stated that he could smell the odor of chemicals emanating from inside the residence. When he entered the residence, he called appellant, who came forward and was arrested immediately. McClenahan observed what he believed to be iodine on appellant's hands. McClenahan stated that appellant told him and Mahoney that he had transported the chemicals used to make the methamphetamine in his girlfriend's car.2 McClenahan further stated the evidence he used to link appellant to the activity at Matthews' residence were the stains on the palms of his hands and his presence at the scene.

Mahoney testified that the distinctive smell of methamphetamine fumes inside the residence was overwhelming, indicating to him that the cook was ongoing or had recently finished. Mahoney also testified that it is not unusual to stain one's hands with iodine if one is using the hydriotic method to make methamphetamine. He stated that appellant's hands appeared to be stained with iodine, but that Matthews' hands were not similarly stained. However, he admitted that the stains on appellant's hands were not tested. Mahoney further stated that two bottles of ephedrine were found in the trunk of appellant's car. He stated that he could see the paraphernalia on the kitchen table, but appellant denied that any drugs were being cooked on the premises. He agreed that it was a fair statement to say that appellant was arrested because he "was there." He admitted that he did not know how long appellant had been at Matthews' residence and that the two bottles of ephedrine found in appellant'strunk were legal to possess.

Mahoney testified that after appellant received his Miranda warning, he asked appellant if they were still cooking dope and appellant indicated they were not. Mahoney also asked appellant if an HCL generator was being used. He said appellant indicated that there was an HCL generator in the house, but it was not being used. He further said that appellant told him that he brought the chemicals to manufacture methamphetamine to Matthews' house in his girlfriend's car.

Officer Scotty Dodd assisted with the clean-up of the lab. He testified that, at Matthews' residence, he found chemicals and other items used in the manufacture of methamphetamine, including iodine, acid, empty match books, acetone, Coleman fuel, and tubing used in HCL generators. He also stated there were toxic fumes coming from the generator. He explained that one method used to manufacture methamphetamine, the method used in Matthews' residence, used red phosphorous (found in matches) and iodine. He further testified that this method of methamphetamine production often leaves a rustic orange to a brilliant black-red stain on the hands. Dodd also stated that three packages of ephedrine is sufficient to start a "cook." Finally, Dodd opined that methamphetamine had been manufactured that day at the residence.

Inside the residence, officers found on the kitchen table glass jars containing an off-white liquid, a length of hose, and some finished methamphetamine. Mahoney found on the stove a warm skillet containing coffee filters with a brownish powder. The officers also found other items commonly used in the methamphetamine manufacturing process,including a recently used (still fuming) HCL generator, an empty iodine bottle, denatured alcohol, Red Devil lye, Coleman fuel, ephedrine, and matches containing red phosphorous.

Although appellant challenges Matthews' testimony on the grounds that he was an accomplice and his testimony was not sufficiently corroborated, in reviewing the sufficiency of the evidence, we examine all of the evidence, including evidence which may have been erroneously admitted. See, e.g., Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). Matthews testified that appellant made methamphetamine at his house two weeks before they were arrested. He stated that appellant was at his home the day in question for the purpose of cooking methamphetamine. He further stated that, with the exception of some fruit jars, appellant supplied all of the equipment and materials involved in the cooking process. Matthews testified that appellant arrived at his home at around 9:00 a.m and produced an "eight ball," or roughly three grams, of methamphetamine before the police arrived at approximately 2:00 p.m. He admitted that he had a "methamphetamine problem," but stated that he was not involved in the manufacturing process. He maintained that he "just sat and watched."

Appellant testified that he went to Matthews' home to purchase marijuana from him. He maintained that he had been there for only twenty to twenty-five minutes when the officers arrived. He denied telling the officers that he brought any chemicals to Matthews' residence and denied that he was cooking methamphetamine there. He testified that he was stripping the finish off of a pool table before he went to Matthews' place, and that the stains on his hands were a result of that activity.

II. Sufficiency of the Evidence Supporting the Charge

Appellant was convicted under Arkansas Code Annotated section 5-64-403(c)(1)(A)(i) (Supp. 2001), which provides: "It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to . . . manufacture, compound, convert, produce, process, prepare . . . a controlled substance."

On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. See Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the nonmoving party. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. See id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. See Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). We do not weigh the evidence presented at trial, as that is a matter for the factfinder. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Where the evidence is circumstantial, we must consider whether the evidence was sufficient to exclude all other reasonable hypotheses. See Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996).

Appellant challenges the sufficiency of the evidence on two grounds. First, he challenges the sufficiency of the evidence supporting the charge. Second, he challenges the sufficiency of the evidence corroborating Matthews' testimony. However, we hold thatappellant's directed motion with respect to evidence supporting the charge was not specific enough to preserve the issue for appeal. At the close of the State's evidence, appellant's counsel made the following motion:

Appellant's

Counsel: All right, Judge. We move to dismiss, Rule 55, testing the sufficiency of the evidence for the specific reasons that the State has failed to make a prima facie case over and above any testimony on the part of the co-defendant. And as I recall the standard is that the State must prove each and every element beyond a reasonable doubt of evidence in addition to the co-defendant's testimony that would prove illegal conduct on the part of the defendant.

Court: Well, your presumption of the law is wrong. The State must corroborate the defendant's testimony by some substantial evidence independent of the accomplice's testimony connecting the defendant to the crime. The accomplice - there is evidence of accomplice's testimony being corroborated. So the motion on that basis is denied. Were you making a motion that there is insufficient evidence or that there is not substantial evidence for each and every element of the offense?

Appellant's

Counsel: Yes, sir.

Court: That is denied.

(Emphasis added).

Arkansas Rule of Criminal Procedure 33.1(c) provides that a motion merely stating that the evidence is insufficient for a conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on some element of the offense. Rather, a directed verdict motion requires that the movant apprise the trial court of the specific basis upon which the motion is made. See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). In order to preserve the sufficiency of the evidence as to a particular element of the crimewith which the appellant is charged, the lack of proof of the element that is alleged to be missing must be specifically identified in the directed verdict motion. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). Thus, generally, directed verdict motions that simply challenge "each and every element" of the charge are not sufficient to preserve the issue for appellate review. The failure to specifically identify the particular element of the crime that the defendant contends has not been proven operates as a waiver of the issue on appeal. See Houston v. State, 319 Ark. 498, 892 S.W.2d 274 (1995).

Here, appellant was charged with three crimes. Even assuming that he intended to challenge the sufficiency of the evidence with respect to each and every element of all of the charges, he failed to apprise the court in what respect the particular element or elements of the crimes were not proven. Although it is true that the trial judge actually used the "each and every element" language, appellant's counsel agreed with the court's characterization of his motion and did not proffer for the record the manner in which he believed the State's proof was believed lacking. Appellant now argues that the circumstantial evidence was insufficient and that the State failed to prove constructive possession. However, he did not raise these specific arguments in his motion for a directed verdict. Therefore, we hold that appellant's argument with respect to the sufficiency of the evidence supporting his conviction is precluded from appellate review.

III. Sufficiency of the Corroborating Evidence

Appellant also asserts that the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to corroborate Matthews' testimony. BecauseMatthews was an accomplice, Arkansas Code Annotated section 16-89-111(e)(1) (1987) requires that his testimony be corroborated by other evidence tending to connect him with the commission of the crime. 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. See McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). However, the corroborating evidence need not be substantial enough to support a conviction by itself. See Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000).

Here, the corroborating evidence connecting appellant with the commission of the crime, apart from Matthews' testimony, included the officers' testimony regarding the contraband seized, appellant's presence at the scene and the apparent iodine stains on his hands, his knowledge that an HCL generator was in the back bedroom of the home, the ephedrine found in his girlfriend's car, and most importantly, appellant's admission to police that he supplied the chemicals used in the manufacturing process. We hold that this evidence was sufficient to independently establish the crime and to connect appellant with its commission. Therefore, the trial court did not err in denying appellant's motion for a directed verdict on that ground.

Affirmed.

Robbins and Roaf, JJ., agree.

1 Matthews was also apparently charged, but testified at trial that he had not yet been brought to trial and did not know if he had a trial date set.

2 While appellant denied that he made such an admission, he did not challenge the admission of his inculpatory statements.