Sean E. Beagles v. State of Arkansas

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ar04-105

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

SEAN E. BEAGLES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-105

October 13, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[CR-02-820]

HON. JAMES MARSCHEWSKI, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

In this criminal case, Sean Beagles pleaded guilty on November 27, 2002, to the charge of battery in the second degree. He was sentenced to three years' suspended imposition of sentence on the charge. The suspended sentence was conditioned on adherence to certain terms, including the condition that Beagles not violate any state laws. The State filed a petition seeking revocation of the suspended sentence in August 2003, alleging that Beagles committed the offense of manufacturing methamphetamine. After a hearing, the court revoked the suspended sentence and sentenced Beagles to four years in the Arkansas Department of Correction. From that decision comes this appeal.

Beagles's sole argument on appeal is that the trial court's finding that he violated a condition of his suspension was clearly against the preponderance of the evidence, and therefore the trial court erred in revoking his suspended sentence. We do not agree.

In a hearing to revoke, the State bears the burden to prove the violation of a condition of the suspended imposition of sentence, and on appellate review, the trial court's findings are upheld unless they are clearly against the preponderance of the evidence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). A determination of the preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony, and in that respect we defer to the superior position of the trial court. Bradley, supra.

At the revocation hearing, the State offered evidence that officers from the Fort Smith Police Department responded to a complaint that drug-lab equipment had been discarded in and near a dumpster. After arriving, the officers discovered discarded methamphetamine production materials in the dumpster. The officers then noticed a vehicle with a license tag that matched a vehicle contained on a list of known purchasers of methamphetamine precursors. The officers then began checking residences near where the vehicle was parked. Almost immediately, officers approached an apartment and Beagles answered the apartment's door. Officers immediately noticed a strong odor coming from inside the residence. Beagles stepped outside and was asked to identify himself. After a check showed a felony warrant for Beagles's arrest, he was placed in custody.

During this encounter, the officers also noticed a strong odor on Beagles's clothing. When asked if anyone else was in the apartment, Beagles mentioned only a female and a small child. The officers observed a small child at the window of the apartment. Immediately following Beagles's arrest, based on their concern for the small child, the officers returned to the apartment and knocked on the door. After a long period of time, Michael Mayhall, Beagles's brother, answered the door. The officers asked for identification. Mayhall responded with a false name and indicated that he would return with identification. He then shut the door, but did not return. During this encounter, officers had observed conspicuous iodine stains on Mayhall's hands.

At this time, officers again noticed a strong odor, consistent with methamphetamine production, emitting from the apartment. On advice from the prosecutor, the officers were told to enter the apartment and remove the occupants for health reasons. The officers were instructed not to conduct a search. The officers carried out the assignment as instructed. After officers questioned Mayhall about the strong smell inside of his residence, Mayhall admitted that there was a methamphetamine laboratory inside of the apartment. Based on this admission, the officers received a search warrant.

The warrant produced evidence of methamphetamine production, including manufacturing materials that were located in a locked closet of the apartment. However, several drug manufacturing components were discovered in common areas of the apartment, including paraphernalia and jars filled with various chemical substances.

The trial court concluded that Beagles "knew what was going on" based on the facts that his brother had iodine-stained hands, that the strong odor permeated the apartment, and that jars and other production paraphernalia were found in plain view and "even on the microwave." The trial court noted that the familiar smell of methamphetamine penetrated Beagles's clothing and that Beagles had made the decision to associate with his brother, a known felon. The court concluded that Beagles "was in fact attending and attempting to manufacture methamphetamine," and as such, had violated the terms of his suspended sentence.

Although no contraband was found on Beagles's person, we are mindful of the fact that possession of a controlled substance does not require actual or physical possession. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Constructive possession, which is the control or right to control the contraband, is sufficient. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. However, where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the defendant to the contraband; the State must prove that the accused exercised care, control, and management over the contraband and also that the defendant knew that the matter possessed was contraband. Mayo, supra. This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Young v. State, 77 Ark. App. 245, 72 S.W.3d 895 (2002).

Here, Beagles was present in his brother's apartment, and was the first to answer the door when officers made inquiry. Further, numerous items of contraband were found in plain view in the apartment, and his clothing was saturated with a smell consistent with drug manufacturing. Indeed, an obvious methamphetamine-production odor permeated the entire apartment. Beagles also did not disclose to the officers that his brother was present in the apartment.

Based on these facts, we are satisfied that a preponderance of the evidence supports the trial court's finding that Beagles constructively possessed methamphetamine and drug paraphernalia and was an accomplice to the attempted manufacture of methamphetamine in violation of the conditions of his probation. Accordingly, we affirm.

Affirmed.

Gladwin and Robbins, JJ., agree.