Clyde Mathew Folkes v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION III

CLYDE MATHEW FOLKES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-47

April 30, 2003

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR-2000-942A]

HON. DAVID LASER,

JUDGE

REVERSED AND DISMISSED

A Crittenden County jury found Clyde Mathew Folkes guilty of possession of drug paraphernalia with intent to manufacture methamphetamine, and he was sentenced to seven years' imprisonment. On appeal, appellant challenges the sufficiency of the evidence and also argues that the trial court erred in admitting incriminating evidence because the chain of custody had not been adequately demonstrated. We agree that there is insufficient evidence to support appellant's conviction and, accordingly, reverse and dismiss.

The preservation of an appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). In determining whether there is sufficient evidence to support a jury verdict, we view the evidence in the light most favorable to the appellee and affirm the verdict if there is substantial evidence to support it. See Smith v.State, 346 Ark. 48, 55 S.W.3d 251 (2001). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). There is no distinction between circumstantial and direct evidence in a review for sufficiency; however, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000).

During the early morning hours on October 26, 2000, Officer Brian Lawson of the West Memphis Police Department was making a routine business check at the Wal-Mart store. After being alerted by a Wal-Mart employee that a customer had just purchased certain items, Officer Lawson came into contact with Kenny Medley outside the store. Medley was carrying a pail containing six cans of starter fluid and one can of acetone.

Officer Michael Antle testified that he drove through the parking lot and observed two individuals, appellant and Angel Avery, sitting inside a car. They appeared to be watching Officer Lawson speaking to Medley. Officers approached the car, and the occupants said that they knew Medley but could not recall his name. Officer Lawson obtained consent to search the car from appellant, whom he determined to be the owner. Officers found two "snort" straws, two syringes, and a couple of bottles of pseudoephedrine. Officers also found four Wal-Mart receipts, all from the early morning hours of October 26, 2000.

Officer Lawson testified that the receipts reflected the following: the first receipt showed a purchase of three boxes of pseudoephedrine at 1:08 a.m.; the second receipt showed that, fifty-five seconds later, three more boxes of pseudoephedrine were purchased;there was a purchase of two packages of batteries at 1:14 a.m.; and at 1:18 a.m., there was a purchase of "welder" and three more boxes of pseudoephedrine. Lawson conceded on cross-examination that the receipts were from a Wal-Mart store in the western part of Tennessee and not from the West Memphis, Arkansas, store.

Captain Irvin Elton Shelton testified that he found Medley's Missouri Department of Correction parole ID card in what looked like a cigar box located on the floorboard of appellant's car. He stated that he called in a narcotics investigator, Detective Vance Plumhoff, and that all of the evidence had been turned over to him.

Officers found other items outside appellant's car. A blue Wal-Mart bag containing several empty boxes labeled pseudoephedrine was found on the ground five or six feet away from the passenger's side of appellant's car. Officers found another clear plastic bag that was six or seven feet from the first bag and was underneath a vehicle parked next to appellant's car. Inside the bag were several blister packs of pseudoephedrine, lithium batteries, and empty battery packages. Lawson stated that a person walked out of Wal-Mart carrying bags, got into the car underneath which a bag had been found, and drove away without being questioned. In his report, Lawson had written that appellant was in the driver's seat. At trial, however, he stated that no one was sitting in the driver's seat but that Avery was sitting in the front passenger's seat and appellant was in the back seat on the passenger's side.

Appellant took the stand in his own defense and testified that Avery had come to the house where he was staying in Kennett, Missouri, around 12:30 a.m. on October 26. Hestated that he drove her to West Memphis to find Medley, whose car had broken down. Appellant testified that they found Medley's car with the hood up at a Texaco station near the Wal-Mart but that Medley was not there.

Appellant argues on appeal that there was insufficient evidence to convict him of possession of drug paraphernalia with intent to manufacture methamphetamine. Under these circumstances, we agree that there was insufficient evidence to support the jury's verdict.

A person commits the offense of possession of drug paraphernalia with intent to manufacture methamphetamine if he uses, or possesses with intent to use, drug paraphernalia to manufacture methamphetamine. Ark. Code Ann. § 5-64-403(c)(1) (Repl. 1997). Possession of contraband does not require actual or physical possession. See Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Constructive possession, which is the control or right to control the contraband, is sufficient. Id. Although constructive possession may be implied where the contraband is in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. See Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). There must be some additional factor to link the defendant to the contraband. Id.

Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with 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 exercises dominion or control over it; and (5) whether the accusedacted suspiciously before or during the arrest. Mings, supra. The State must prove that the accused exercised care, control, and management over the contraband and that he knew that the matter possessed was contraband. See Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002).

The State contends that appellant's care, control, and management over the contraband was sufficiently demonstrated by the fact that receipts for batteries and pseudoephedrine were found in his car, that actual batteries and pseudoephedrine were found in close proximity to his car, that the identification card of a friend from his hometown who had just been stopped coming out of Wal-Mart with other key ingredients of methamphetamine production had been found in his car, and that syringes and straws with methamphetamine residue were found in his car. We disagree.

The State failed to show that appellant constructively possessed those items that Medley had in his possession at the storefront and those items located in plastic bags outside of his car. Although Medley's identification card was found inside appellant's car, we cannot, by that fact, impute to appellant the knowledge of what Medley purchased while inside Wal-Mart. Such a conclusion would be based on suspicion and conjecture. Next, it was not demonstrated that the receipts found inside appellant's car matched the discarded purchases found in the bags located nearby. The receipts, themselves, are not the equivalent of the contraband they represent. Moreover, it was not demonstrated how those bags came to be where they were located. We cannot fairly assume that appellant placed them there. As stated by our supreme court in Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978),

No one should be deprived of his liberty or property on mere suspicion or conjecture.

Where inferences are relied upon, they should point to guilt so clearly that any other

conclusion would be inconsistent. This is so regardless of how suspicious the

circumstances are.

264 Ark. at 347, 571 S.W.2d at 435. See also Knight v. State, 51 Ark. App. 60, 908 S.W.2d

664 (1995).

The remaining items found inside appellant's car of which he was constructively in possession were not sufficient, standing alone, to support a conviction for possession of drug paraphernalia with intent to manufacture methamphetamine. E.g., Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805 (2002). Because we reverse on this point, we need not address appellant's other argument having to do with the chain of custody.

Reversed and dismissed.

Neal and Baker, JJ., agree.