Michael D. McCammon v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

MICHAEL D. MCCAMMON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-2

December 3, 2003

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CR2001-1582]

HON. CHARLES E. CLAWSON, JR.,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The appellant was convicted of possession of drug paraphernalia; possession of ephedrine with the intent to manufacture methamphetamine; attempt to manufacture methamphetamine; and endangering the welfare of a minor. On appeal, he argues that the evidence is insufficient to support his convictions of these offenses. We affirm.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Walley v. State, ___ Ark. ___, 112 S.W.3d 349 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.

First, appellant contends that the trial court erred in finding him guilty of possession of drug paraphernalia. The evidence at trial showed that police officers searched a house trailer in which Tracy Sampson resided with her two minor children. The search revealed that there was paraphernalia associated with ingesting methamphetamine in the living area of the trailer, and that there was paraphernalia associated with manufacturing methamphetamine located in the back bedroom of the trailer. The paraphernalia in the back bedroom included scales, Vita-Blend, camp fuel, coffee filters, funnels, several jars, a soda bottle filled with salt, and boxes of pseudoephedrine. Tracy Sampson testified that appellant brought the items in the back bedroom into her home in order to "make some cuts for the meth." She explained that "[a] cut is something you have to add to the meth to make it go farther. It's kind of a counterfeit type substance to dilute the meth to make it look like you were selling more."

It is true that, although constructive possession can be implied when the controlled substance is in the joint control of the accused and another, joint occupancy, standing alone, is not sufficient in itself to establish possession or joint possession. Walley v. State, supra. The State must show additional facts and circumstances indicating the accused's knowledge and control of the contraband. Id. Here, however, Ms. Sampson's testimony is sufficient to show that appellant had knowledge of and exercised control over the paraphernalia in the back bedroom. Appellant argues that we cannot consider the paraphernalia found in the back room in determining the sufficiency of the evidence to support his conviction for possession of drug paraphernalia because it would violate double jeopardy to convict him of possession of the same paraphernalia that was the basis for his conviction for attempted manufacture of methamphetamine. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). We do not reach this argument, however, because appellant raises it for the first time on appeal, and "when the argument of double jeopardy was not raised below, we cannot consider that argument on direct appeal." State v. Montague, 341 Ark. 144, 147, 14 S.W.3d 867, 869 (2000). Therefore, we need not make the distinction appellant asks us to make concerning paraphernalia found in the common area and paraphernalia found in the back bedroom; the question is simply whether or not there was substantial evidence that appellant possessed drug paraphernalia, and we hold that there was.

Next, appellant contends that there is no substantial evidence to support his conviction for possession of ephedrine with the intent to manufacture methamphetamine. He does not maintain that there is no substantial evidence to show that he possessed ephedrine, but instead argues that the evidence failed to show that he intended to use the ephedrine to manufacture methamphetamine. Again, this point is not what was argued below. Appellant's motion for a directed verdict on Count 3 (possession of ephedrine with the intent to manufacture methamphetamine) was based solely on his assertion that the evidence failed to show that appellant possessed the ephedrine at all.1 Appellant may not change his argument on appeal, and arguments not raised at trial are procedurally barred. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002).

Appellant next contends that the evidence was insufficient to support his conviction for attempt to manufacture methamphetamine because the evidence showed he was lacking two of the ingredients necessary to complete the manufacture of methamphetamine. We do not agree. It is not necessary that all the ingredients be assembled for one to be convicted of attempt to manufacture methamphetamine. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). Here, there was evidence that appellant regularly used methamphetamine and had for some time been providing it to Tracy Sampson; that Tracy Sampson saw appellant in possession of methamphetamine the night before his arrest and that appellant smoked methamphetamine with her several times that night; that staying up all night smoking methamphetamine with Tracy Sampson was getting to be something appellant did on a regular basis; and that appellant's paraphernalia included a cutting agent that "was used to dilute the meth to make it look like you were selling more." We think that, given this evidence, the evidence that appellant had produced ephedrine, and the evidence that only two additional ingredients were necessary in order to manufacture methamphetamine, the trier of fact could conclude that the circumstantial evidence of appellant's intent ruled out every reasonable possibility other than guilt.

Finally, appellant contends that the evidence was insufficient to support his conviction for endangering the welfare of a minor. A person commits the offense of endangering the welfare of a minor in the second degree if he knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of one known by the actor to be a minor. Ark. Code Ann. § 5-27-204 (Repl. 1997). Here, there was evidence that the minor children were in the trailer at the time of the search; that there were chemical vapors in the trailer sufficiently strong as to cause the immediate onset of a headache in an adult; and that some of the paraphernalia assembled by appellant to manufacture methamphetamine was extremely flammable. On this record, we cannot say that appellant's conviction for endangering the welfare of a minor was not supported by substantial evidence.

Affirmed.

Robbins and Roaf, JJ., agree.

1 In his directed verdict motion, appellant argued that: "On Count 3, I think the State has made some proof that, yes, these items were present there but, again, in an area of common usage. There were four people there. Apparently, at least three of them were charged. I don't know that any type of particular possession or control over these particular ingredients could be shown by my client."