Brunson Roberts v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

BRUNSON ROBERTS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-193

February 16, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FIFTH DIVISION [CR2002-3417]

HONORABLE WILLARD PROCTOR, JR., CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Brunson Roberts, was tried by a jury and found guilty of the offense of possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced as an habitual offender to ten years' imprisonment. He raises two points of appeal: (1) the trial court erred in denying his motion to suppress because he was not advised that he had the right to refuse consent for the search, (2) the evidence was insufficient to prove that he had actual or constructive possession of the items of paraphernalia upon which his conviction was based. We affirm.

Because of double-jeopardy considerations, we are required to address challenges to the sufficiency of the evidence before considering any argument asserting trial error. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 359 (2004). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether there is substantial evidence to support the verdict, this court reviews the evidence in the light most favorable to the State and considers only that evidence which supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial; however, when circumstantial evidence is relied upon, it must exclude every other reasonable hypothesis other than the guilt of the accused. Id. The question of whether circumstantial evidence excludes other reasonable hypotheses is for the fact finder to determine. Id.

Here, Mark Wright, a North Little Rock police officer, testified that on July 5, 2002, he observed a vehicle pull out in front him at a high rate of speed. He said that he ran the license plate, that he initiated a traffic stop, and that appellant was driving the vehicle. Wright stated that appellant's driver's license was suspended, that he had no proof of insurance, that the car bore a fictitious license plate, and that he had no registration. He explained that as he was writing out the citations, Officer Charles Rhodes arrived. He said that Officer Rhodes approached the vehicle and that Rhodes then advised him that appellant possibly had the contents of a methamphetamine lab in his car. He said that he and Officer Rhodes then went back to appellant's car, where Rhodes pointed out the items that he had observed. He said that Rhodes explained to him the contents of a meth lab and that he saw those items behind the passenger and driver side seats. He said that they were in the floorboard of the vehicle and on both sides of the vehicle in the back seat.

Officer Wright said that they placed appellant in the back seat of the patrol car, that they walked around to the passenger side of appellant's car, that they made contact with a Ms. Greer in the passenger seat, and that she had a strong odor of marijuana on her. Wright also explained that appellant was acting very irrationally, cursing and kicking the window and door of the patrol car to the point that they had to put him in shackles, and that they subsequently transported him to the Northside Unit.

Charles Rhodes, a patrolman with the North Little Rock Police Department, testified that he assisted Officer Wright during the traffic stop involving appellant. He said that when he approached the vehicle on the passenger side, he observed in the back-seat floorboard, immediately behind the front passenger seat, three things: a can of camp fuel, a can of toluene, and a black bag trimmed in red. He said that the bag was partially unzipped, and that with his flashlight, he could see a propane bottle, hydrogen peroxide, and a can of Red Devil lye. He said that the presence of those items indicated to him a possible methamphetamine laboratory because they were consistent with the ingredients needed to manufacture methamphetamine. He said that he asked appellant for consent to search the vehicle and that appellant gave him that consent.

Rhodes stated that he set the black bag outside the vehicle and unzipped it. He explained that he found a generator inside the bag, along with a black purse that Ms. Greer said was hers. Rhodes stated that the black bag with red trim was in the center of the back-seat floor next to the camp fuel, which was on the passenger side of the back-seat floor. He acknowledged that the items in the red-trimmed black bag were in plain view only by using his flashlight.

Robert Brock, a detective with the narcotics division of the North Little Rock Police Department, testified that he had received meth-lab recognition training and site and safety training. He said that when he arrived on the scene, he saw a tan and blue Jeep parked in the parking lot; that the tailgate was open; that some items had been removed from the vehicle; and that they were basically set out on the passenger side of the vehicle.

Brock described the contents of several photographs showing the items that were recovered from the Jeep. For example, he explained that State's Exhibit No. 5 depicted a bag located outside of the passenger side of the vehicle along with nail-polish remover, Red Devil lye, common table salt, mason jars, and a jar containing a bi-layer of solution; that State's Exhibit No. 6 showed a suitcase located in the rear portion of the Jeep and that you could also see Drixoral and sinus medication, which contain a key ingredient used in manufacturing methamphetamine; that State's Exhibit No. 17 was a photo of some camp fuel that was found inside a plastic bag; that State's Exhibit No. 18 showed toluene; that State's Exhibit No. 19 showed gloves, Red Devil lye, and a piece of paper that had phone numbers on it; that State's Exhibit No. 20 showed an Erlenmeyer flask; that State's Exhibit No. 21 showed a bag containing green vegetable material; and that State's Exhibit No. 23 showed a cigarette box that contained pseudoephedrine and iodine.

Brock further explained that inside a cooler, they found the bi-layered solution, two other mason jars, some red powder that was inside a cellophane bag wrapped inside a coffee filter, salt, nail-polish remover, and rubbing alcohol. He said that inside the black bag with the red stripe, they found the Red Devil lye, a propane torch, a funnel, some coffee filters, three bottles of hydrogen peroxide, some tablets, and a hydrochloric-acidgenerator, which is used in the final cooking stage of making methamphetamine. Brock also testified that appellant told him that he had bought the Jeep that morning.

Linda Burdick identified herself as a chemist with the crime laboratory. She explained the three major manufacturing processes for methamphetamine and how the items recovered from appellant's car would be used in those processes.

Constructive Possession

In challenging the sufficiency of the evidence supporting his conviction, appellant contends that the evidence was not sufficient to prove that he had actual or constructive possession of the items of paraphernalia upon which his conviction was based. We disagree.

Constructive possession requires the State to prove beyond a reasonable doubt that (1) the defendant exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Gamble v. State, 82 Ark. App. 216, 105 S.W.3d 801 (2003). Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy alone is not sufficient to establish possession. Id. Other factors that sufficiently link an accused to contraband found in a vehicle jointly occupied by more than one person include: (1) whether the contraband was found in plain view; (2) whether the contraband was found on the defendant's person or with his personal effects; (3) whether the contraband was found on the same side of the car seat as the defendant or in immediate proximity to him; (4) whether the accused owned the vehicle in question or exercised dominion and control over it; (5) whether the accused acted suspiciously before or during the arrest. Id.

Here, there were additional factors that sufficiently linked appellant to the contraband recovered from the Jeep: (1) several of the items of contraband were found in plain view; (2) Officer Brock testified that appellant told him that he had purchased the Jeep that morning, and at the time of the stop appellant was driving it, which established his exercise of dominion and control over the vehicle; (3) the fact that appellant was kicking and cursing established that he was acting suspiciously before and during the arrest. We hold that there was substantial evidence to support the verdict in this case.

Denial of Motion to Suppress

For his remaining point of appeal, appellant contends that the trial court erred in denying his motion to suppress because he was not advised of his right to refuse consent for the search of his vehicle. We find no error.

In reviewing the trial court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court's findings. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004).

In making his argument, appellant relies upon State v. Brown, ___ Ark. ____, ____ S.W.3d ____ (March 25, 2004), and he argues that its holding should be applied retroactively to invalidate the search of his vehicle. In Brown, our supreme court held that a home dweller must be advised of his or her right to refuse consent in order to validate a consensual search under the Arkansas Constitution. We find it unnecessary to address appellant's argument regarding the retroactive application of Brown because that holding is applicable only to searches of houses, not vehicles. As the Brown court explained:

It is true that in Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995), which involved the search of a motor vehicle, this court stated that we would interpret Article 2, § 15, in the same manner as the United States Supreme Court interpreted the Fourth Amendment. But the Stout case involved the search of a motor vehicle, and we noted in Stout that it seemed especially appropriate to follow Fourth Amendment interpretations, because of the difficulty in balancing interests and setting rules for search and seizure of automobiles. The case before us concerns the search of a home which is altogether different and which invokes Arkansas' longstanding and steadfast adherence to the sanctity of the home and protection against unreasonable government intrusions.

Id. at ____, ____ S.W.3d at ______ (emphasis in original). We conclude, therefore, that the trial court did not err in denying appellant's motion to suppress.

Affirmed.

Hart and Neal, JJ., agree.