Jerry Lee Hall v. State of Arkansas

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ar03-642

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JERRY LEE HALL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-642

MARCH 3, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR 02-515]

HON. J. MICHAEL FITZHUGH,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Sebastian County Circuit Court convicted the appellant, Jerry Lee Hall, of possessing drug paraphernalia with intent to manufacture methamphetamine and sentenced him to twelve years in prison. On appeal, he challenges the sufficiency of the evidence supporting his conviction. We affirm.

The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. 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 resorting to speculation or conjecture. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Mace v. State, 328 Ark. 536, 944 S.W.3d 830 (1997). The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Ross v. State, 346 Ark. 225, 230, 57 S.W.3d 152, 156 (2001).Furthermore, "[a] jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant's guilt from improbable explanations of incriminating conduct." Burley v. State, 348 Ark. 422, 431, 73 S.W.3d 600, 606 (2002). A jury is not required to believe all or any part of a defendant's or witness's statement in reaching its verdict. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).

The jury found appellant guilty of possessing drug paraphernalia with intent to manufacture. On appeal, appellant argues that "there was no proof that [he] was actually there and controlled the drugs," and that "there was no proof of knowledge or control that [he] was actually near the paraphernalia at the time the arrest was made." To sustain a conviction for possessing contraband, the State need not prove exclusive or actual physical possession; constructive possession, or the control or the right to control contraband is sufficient. Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). Constructive possession may be implied when the contraband is in the joint control of the accused and another person; however, joint occupancy, standing alone, is insufficient to establish possession or joint possession. Miles v. State, 76 Ark. App. 255, 64 S.W.3d 759 (2001). In order to show possession in a case of joint occupancy, the State must show care, control, and management of the contraband as well as knowledge that the matter possessed was contraband. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Efforts on the part of the accused to destroy or dispose of incriminating evidence can be considered evidence of consciousness of guilt. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002).

A person's intent can seldom be shown by direct evidence and, therefore, must often be inferred from other facts and circumstances. Jackson v. State, 52 Ark. App. 7, 914 S.W.2d 317 (1996). It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine. Ark. Code Ann. § 5-64-403(C)(5) (Supp. 2001). The term "drug paraphernalia" specifically includes items such as tubes, pipes, cutting agents, bowls, containers, and mixing devices. Ark. Code Ann.§ 5-64-101(v)(6), (8), (11), (12)(A)&(C) (Repl. 1997). These items have ordinary and legal usages, and the fact-finder must determine whether the object is drug paraphernalia considering all logically relevant factors and evidence such as the following:

(1) statements by an owner or by anyone in control of the object concerning its use; (2) prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance; (3) the proximity of the object, in time and space, to a direct violation of the controlled substances act; (4) the proximity of the object to the controlled substances; (5) the existence of any residue of controlled substances on the object; (6) direct or circumstantial evidence of the intent of the owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to manufacture a controlled substance; (7) instructions, oral or written, provided with the object concerning its use; (8) expert testimony concerning its use.

Cherry v. State, 80 Ark. App. 222, 229, 95 S.W.3d 5, 8-9 (2003).

Officer Eric Williams of the Ft. Smith Police Department, along with his partner Joseph Barnes, obtained consent and, subsequently, conducted a search of 2024 South R Street in Ft. Smith on May 28, 2002. Officer Williams testified that upon entering the home, he found appellant, appellant's wife, and three small children occupying the home. During the search of appellant's home, numerous items of drug-related paraphernalia associated with the manufacture of methamphetamine were found. Initially, the officers found a water-filled bathtub that contained a large number of jars and other glassware that Officer Williams testified were commonly used in the manufacture of methamphetamine. Appellant later told the police in an interview that when officers arrived at his home he was in the process of washing the glassware because "he didn't want to get into any trouble." Next, the policemen entered the southwest bedroom of the home where they smelled the odor of burned marijuana. They then discovered evidence of a white powdery substance in a wooden box, which they suspected to be methamphetamine. They also found a blue and white cooler that contained rags and clear tubing with a "chemical odor to them." At this point, the two patrol officers, suspecting that they had uncovered a possible methamphetamine lab, exited the residence and summonsed the narcotics division to take over the investigation.

Soon thereafter, Detective Travis Watkins of the Narcotics Unit of the Ft. Smith Police Department arrived at the scene. Detective Watkins, a trained expert in identifying methamphetamine labs, testified that he found a number of items associated with the manufacture of methamphetamine in appellant's home. Inside a black trash bag, Detective Watkins found newspapers, a bottle of alcohol, some boxes of cold medicine containing ephedrine, plastic tubing, and coffee filters. The detective stated that the coffee filters did not have coffee stains on them. Watkins testified that all of these items are used in the manufacturing of methamphetamine. Next, Watkins discovered an empty one-gallon jug of muriatic acid, two empty sixteen-ounce bottles of fifty percent isopropyl alcohol, one empty twenty-ounce bottle of toluol, four homemade funnels, one sixteen-ounce can of gun scrubber that was 1/8 full, and more coffee filters and towels. Again, Detective Watkins stated that all of these items are involved in different stages of cooking methamphetamine, some in the "gassing-off" process and some in the cleaning process.

In appellant's bedroom, Detective Watkins found more plastic tubing and more used gray-colored coffee filters without coffee stains. Then, the detective found a duffel bag containing two rolls of aluminum foil; one eighteen-ounce can of Red Devil lye, which appellant admitted to police was his; one green box containing foil balls; one white funnel; a roll of black electrical tape; one set of metal tongs; a piece of plastic tubing connected to another smaller piece of tubing with electrical tape; green plastic gloves; another sixteen-ounce can of gun scrubber; and a small purple flashlight. Watkins also found a sixty-four ounce plastic juice bottle that was 1/4 full of a bi-layer liquid that, when analyzed by the State Crime Lab, contained methamphetamine.

In the bedroom, Detective Watkins also discovered a gas camping grill that he stated could be used in the cooking of methamphetamine. Nearby, he found a large bottle of muriatic acid, a hand pump, and a glove, all of which appellant admitted belonged to him. The detective testified that the muriatic acid and hand pump also were used in the process of manufacturing methamphetamine. Finally, Detective Watkins found in appellant's bedroom a road flare that contained red phosphorus - a key component in manufacturing methamphetamine, a zip-lock bag containing ground pseudo-ephedrine, a microwave in the bedroom that contained a corningware dish that had red phosphorous residue within it, assorted boxes and containers that had paraphernalia related to the use of methamphetamine and marijuana, and mail addressed to appellant, indicating that he lived at the address of the search.

The foregoing evidence demonstrates that appellant's conviction for possession of paraphernalia with intent to manufacture methamphetamine was supported by substantial evidence. The expert testimony concerning the uses of the paraphernalia, the presence of methamphetamine in at least one container, the residue of red phosphorous on another, the plastic bag of ground-up pseudo-ephedrine, and the statements of appellant that he was attempting to clean and get rid of the components because he did not want to get in trouble, taken together, are sufficient to support his conviction.

Affirmed.

Hart and Roaf, JJ., agree.