Melony Nazaretta and Melissa DeBate v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

MELONY NAZARETTA and

MELISSA DEBATE

APPELLANTS

v.

STATE OF ARKANSAS

APPELLEE

CACR03-27

JANUARY 26, 2005

APPEAL FROM VAN BUREN COUNTY CIRCUIT COURT

[NO. CR-99-165]

HONORABLE MICHAEL A. MAGGIO, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

After a jury trial on February 6, 2001, appellants Melony Nazaretta and Melissa DeBate were each convicted of the offenses of conspiracy to manufacture methamphetamine, possession of methamphetamine, and simultaneous possession of drugs and firearms. They were both sentenced to terms of 300 months in the Arkansas Department of Correction. On appeal, appellants argue that the evidence was insufficient to convict them of conspiracy to manufacture methamphetamine because of the lack of corroborating evidence to accomplice testimony. We affirm.

At trial, two police investigators and a forensic drug chemist testified for the State. Investigator Afton Fletcher testified that he had information that led him to the home of DeBate. DeBate verbally consented to a search of her home. Police found numerous items commonly used in the manufacturing of methamphetamine, drug paraphernalia, firearms, and .331 grams of methamphetamine. Photographs of these items were entered into evidence at trial.

After conducting the search, Investigator Fletcher took statements from both DeBate and Nazaretta, who lived with DeBate. In these statements, both DeBate and Nazaretta admitted to "trading red phosphorous for speed." DeBate and Nazaretta stated that they would obtain red phosphorous from matches and give this red phosphorous to Daniel Fornes, who would manufacture the methamphetamine and then supply DeBate and Nazaretta with a quantity of this substance.

At trial, after the State rested its case, appellants made a motion for a directed verdict on the conspiracy charge, arguing that the State did not allege the nature of the agreement between the parties and that there was no proof of a conspiracy. The trial court denied this motion. Appellants presented no evidence at trial and then renewed their motion for a directed verdict, which the trial court denied. Appellants tendered a jury instruction that would have allowed the jury to decide whether or not appellants were accomplices in this conspiracy. The judge refused to give the instruction. Appellants do not raise the issue of the denial of the proffered jury instruction in this appeal.

Appellants claim that the evidence of a conspiracy is insufficient because the State did not corroborate the statements they each gave to the police, citing Ark. Code Ann. § 16-89-111(e)(1)(A) (Supp. 2003), which provides that the testimony of an accomplice must be corroborated by other evidence tending to connect the evidence with the offense. Appellants base their sufficiency of the evidence claim on the assertion that they were accomplices as a matter of law, and appellants make this assertion for the first time on appeal. Appellants never asked the trial court to declare them accomplices as a matter of law, and appellants do not raise on appeal the issue of the denial of the jury instruction regarding accomplice status. Because the appellants did not argue below that they were accomplices as a matter of law, they have not preserved this issue for appeal. See Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). This Court will not consider an argument made for the first time on appeal. Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004).

Even if the issue was preserved for appeal, there is sufficient evidence to convict appellants of conspiracy to manufacture methamphetamine. "The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict." Aydelotte v. State, supra. Substantial evidence is evidence that compels a conclusion and goes beyond mere speculation or conjecture. Id. Circumstantial evidence is sufficient to support a conviction if it excludes every other reasonable hypothesis consistent with innocence, which is a question for the jury to decide. Id. "On appeal, [the Court] review[s] the evidence in the light most favorable to the [State] and consider[s] only the evidence that supports the verdict." Goodman v. State, 74 Ark. App. 1, 7, 45 S.W.3d 399, 403 (2001).

"For purposes of § 16-89-111(e)(1), corroborating evidence is sufficient if, without considering the accomplice's testimony, other evidence at trial independently establishes the offense and tends to connect the defendant with its commission." Barnett v. State, 346 Ark. 11, 14, 53 S.W.3d 527, 529 (2001). Here, physical evidence exists that connects both appellants to the commission of the crime. Investigators found in their home match striker plates soaking in alcohol, which is a method of extracting the red phosphorous. Investigators also found other items used in the manufacturing of methamphetamine, drug paraphernalia, and .331 grams of methamphetamine. Both appellants confessed to police officers that they agreed to "trade red phosphorous for speed." While there was no corroborating evidence of the involvement of the third party, Fornes, enough "other evidence" exists to connect appellants with the commission of the crime without considering appellants' own admissions to police officers. The evidence, therefore, is sufficient to support appellants' convictions for conspiracy to manufacture methamphetamine.

Affirmed.

Hart and Bird, JJ., agree.