Gary Lee Wise v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR04-472

MARCH 2, 2005

GARY LEE WISE AN APPEAL FROM THE SALINE

APPELLANT COUNTY CIRCUIT COURT [CR-2003-205-2]

V.

STATE OF ARKANSAS HONORABLE DAVID BOGARD, SPECIAL JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

A jury convicted appellant Gary Lee Wise of manufacturing methamphetamine, simultaneous possession of drugs and a firearm, and possession of drug paraphernalia with the intent to manufacture methamphetamine. Appellant was sentenced to 360 months' imprisonment. Appellant concedes that he is guilty of the possession of drug paraphernalia; however, he argues that the trial court erred in denying his directed-verdict motion on the charge of manufacturing methamphetamine because there was insufficient evidence to support a conviction. Appellant further argues that the court erred in denying his directed-verdict motion on the charge of simultaneous possession of drugs and a firearm because (a) there was insufficient evidence to establish that he constructively possessed a firearm and (b) there was insufficient evidence to establish a connection between the firearm found under the bed and the coffee filters found in the kitchen with methamphetamine residue. We affirm.

Our standard of review is as follows:

In determining whether a directed verdict should have been granted, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Stated another way, a motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed.

Mangrum v. Pigue, __ Ark. __, __, __ S.W.3d __, __ (Nov. 11, 2004) (internal citations omitted).

The facts of this case are as follows. The Benton police received a call from a resident at 806 Columbia that the neighbor's pickup was blocking his driveway. Officer Eric Hayworth arrived at the scene and first made contact with James Zuber, the person who had made the call. Because it was icy, the truck slid in front of Zuber's driveway. Officer Hayworth testified that the truck "slid towards 806 and was sitting originally at 810. The truck was kind of in the driveway, half in the driveway and half in the yard kind of at an angle." Hayworth went to 810 Columbia and knocked on the door. A white female named Hannah1 answered. Hayworth testified that he noticed a strong chemical smell coming from within the house, stating "[t]he odor was consistent with being the same smell as somebody producing [m]ethamphetamine." Hayworth requested to see appellant. Hannah informed the officer that appellant was asleep. After requesting that Hannah awake appellant, Hayworth testified that Hannah "left the door open and went and got him."

Appellant came to the door; Hayworth informed appellant of who he was and why he was there. Hayworth thereafter asked appellant if it would be all right if he came inside. Appellant consented. Once inside, Hayworth noticed on the couch "a tube with burnt residue on it and also a light bulb that had the same type of burnt residue on it known to me through training and experience to be used in the consumption of methamphetamine." Other items were also on the couch, including a hemostat and a torch. Subsequently, Hayworth advised appellant of his suspicions and asked for consent to search. Appellant gave his verbal consent. Hayworth testified that appellant escorted him throughout the house. From the living room, he went into the master bedroom. There, he found two Mason jars with "a yellowish liquid in it" sitting at the foot of the bed. Hayworth also found two shotgun shells sitting on the night stand. Also found in a spare bedroom was some drain opener.

In the kitchen, Hayworth located a dishwashing detergent bottle sitting on the table. The bottle had a hose coming out of it, which Hayworth testified "was consistent with an HCl generator used to gas off when you're making methamphetamine." Once he stopped looking, Hayworth informed appellant that what he found were items consistent with manufacturing methamphetamine. He asked appellant to sit in the recliner across from Hannah. Subsequently, Hayworth radioed his supervisor, who then called out the special investigative unit. Corporal Travis Burns responded to the call.

Corporal Burns testified that, when he went to the residence, Officer Hayworth informed him of the situation. Burns entered the home and spoke with appellant, informing him that he was going to walk through the home with Officer Hayworth. After walking through the kitchen and bathroom, Burns requested consent to search again because "I was going to search further than Officer Hayworth had." Appellant gave consent. Burns testified that he searched the living room, kitchen, master bedroom, and another bedroom. A full bottle of drain opener and numerous sections of plastic tubing were found in the second bedroom. In the kitchen, Burns found two packages of 24-count, 25-milligram allergy medication, diphenhydramine. Burns noted that diphenhydramine does not contain pseudoephedrine, one of the three items needed to manufacture methamphetamine. Also found in the kitchen was Red Devil Lye, which Burns acknowledged was used as a base in the manufacture of methamphetamine; unused coffee filters; a plastic funnel with coffee filters containing residue; an open box of freezer bags, two more plastic funnels, a plastic bag containing wet coffee filters; a Dawn dishwashing detergent bottle with a plastic hose attached to the lid containing a white crystalline substance "submitting acidic fumes"; and camp fuel. The majority of these items, according to Burns, are used in the manufacture of methamphetamine.

In the living room, Burns found a glass jar containing residue; a light bulb with residue; a glass pipe with residue; a propane torch; hemostats; a wooden pipe with residue; a scale; a mirror with powder residue; and a tin containing numerous corner-cut baggies. In the master bedroom, Burns found a loaded 20-gauge shotgun with two shells underneath the mattress; numerous matchbook striker plates; a Mason jar containing approximately 150 milliliters of a yellowish clear liquid with a cloudy sediment in the bottom; and a glass jar containing a yellowish clear liquid with cloudy sediment. Burns did not know how to unload the gun and appellant told him how to open the gun. Burns also searched the truck. Appellant notified Burns that the truck did not belong to him, but that he had borrowed it. After receiving consent to search the truck, Burns found inside the truck the following: a propane container; a Super N Vitamin B3 container; a gallon of camp fuel; a package of 120 milligram of Aleve; 14-count of pseudoephedrine; two burnt cans of denatured alcohol; and one plastic bottle with duct tape attached. In the bed of the truck, Burns found a sack containing an empty bottle of pseudoephedrine.

All of these items were seized, and appellant was arrested. After signing a written Miranda form, appellant told Burns that he was a methamphetamine addict and "not a cook." He told Burns that two friends had been to his home earlier that morning and had left all of those items at his home. Although stating that the items were not his, appellant told Burns that he was going "to use their trash to make a bump." Burns opined that a "bump" was typically a single dose of methamphetamine. Appellant also told Burns that the shotgun seized belonged to his wife.

State Crime Lab employee, Chris Harrison, testified that he tested the items in this case, finding only that the wet coffee filters contained methamphetamine, stating:

I found an immeasurable quantity of Methamphetamine on the sample by a [gas-chromatograph]. A [gas-chromatograph] is capable of a sample down to a nanogram. A nanogram is a billionth of a gram. A gram is about the size of a Sweet and Low packet. ... Although I detected some methamphetamine on a coffee filter, I was not able to come to a quantitative weight of drugs in this case. That's how small of a sample I found.

The other tested items contained no controlled substance. Harris testified further that he did not

find any ephedrine on the samples. The fact that it says no illegal substances detected also includes the fact of one of the three major precursors being absent. I didn't find iodine or red phosphorus. All three of which are absolutely necessary to make Methamphetamine under the process I think it was made by.

On appeal, appellant first asserts that the trial court erred in denying his motion for directed verdict on the charge of manufacturing methamphetamine because there was no evidence that any of the necessary precursors, i.e., ephedrine or pseudoephedrine, iodine, and red phosphorous, were present. Before addressing the merits, we first note that the addendum does not contain the notice of appeal filed in this case. According to Ark. Sup. Ct. R. 4-2(a)(8) (2004), an appellant shall include in his brief an addendum that contains photocopies of the order or judgment appealed from, as well as the notice of appeal. See Lewis v. State, 84 Ark. App. 327, 139 S.W.3d 810 (2004). Without a timely notice of appeal, this court does not obtain jurisdiction. Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002). It is well settled that the timely filing of a notice of appeal is essential to this court's jurisdiction. Id. Where appellant's addendum contains no notice of appeal, it is not evident that our court is vested with jurisdiction to hear the appeal. See id. Nevertheless, a review of the record reveals that appellant timely filed a notice of appeal on November 17, 2003, and we can go to the record to affirm. See Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

Under Arkansas Code Annotated section 5-64-401(a) (Supp. 2003), it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. In Lee v. State, 297 Ark. 421, 426-27, 762 S.W.2d 790, 793 (1989), our supreme court provided that "[t]he substance does not have to be in a form to be sold before a `manufacture' occurs. The Controlled Substances Act defines manufacture as `the production, preparation, propagation, compounding, conversion, or processing of a controlled substance. . .' Ark. Code Ann. 5-64-101(m) (1987)."

Here, there is ample evidence that preparation and processing of the drug took place. Officers found jars containing yellowish liquid and sediment, which were found to contain an organic solvent used in the initial stages of manufacturing methamphetamine. Also found were the coffee filters that contained methamphetamine in them and a HCl generator that was still emitting acidic fumes at the time of the search. Furthermore, appellant admitted that his friends had just produced methamphetamine at the home and that he was going to use the "trash" items to make him a "bump." From the evidence, a jury could reasonably infer that appellant had or was about to manufacture a controlled substance; therefore, the trial court did not err in denying appellant's directed-verdict motion.

Appellant's second and third arguments are that the court erred in denying his motion for directed verdict as to the simultaneous possession of drugs and a firearm because there was no evidence that he constructively possessed the gun and there is insufficient evidence to establish a nexus between the gun and the methamphetamine residue. In order to obtain a conviction for simultaneous possession under Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1997), the State must prove two elements: (1) that the defendant possessed a controlled substance and a firearm, and (2) that a connection existed between the firearm and the controlled substance. Vergara-Soto v. State, 77 Ark. App. 280, 74 S.W.3d 683 (2002). To possess means to "exercise actual dominion, control, or management over a tangible object." Harper v. State, 17 Ark. App. 237, 243, 707 S.W.2d 332, 335 (1986). Dominion implies wide latitude and is defined as including even the right to possession. Id. The word "actual" does not reduce the usage to one of literal or physical possession. Id. Constructive possession means knowledge of the contraband's presence and control over it; it occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively subject to his dominion and control or to the joint dominion and control of the accused and another. Id.

In Aydelotte v. State, 85 Ark. App. 67, 100 S.W.3d 674 (2004), we found sufficient evidence of simultaneous possession of drugs and a firearm where loaded weapons were found in the same building in which methamphetamine had recently been manufactured. Likewise in the instant case, a loaded shotgun was found in the bedroom where appellant admittedly slept and where methamphetamine had recently been manufactured or was still being processed to make appellant a "bump." The fact that appellant testified that his wife owned the gun is unavailing as the jury was not required to believe his self-serving testimony because he was the person most interested in the outcome of the trial. See McDuffy v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 14, 2004).

Appellant also asserts that there was an insufficient showing of nexus between the methamphetamine residue and the firearm. We disagree. In Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003), our court determined that a sufficient nexus was shown between drugs and a firearm where a loaded weapon was found in Mr. Cherry's kitchen near items used to manufacture methamphetamine. We further stated:

To sustain a conviction, the State must show that the accused possessed a firearm and a nexus between the firearm and the drugs. "For use" as a firearm includes the term "readily accessible for use." The accused does not actually have to be present where the drugs and firearms were found because his possession may be constructive. The State did not have to show that Mr. Cherry physically possessed the handgun in order to sustain a conviction for its possession if the gun's location was such that it was under Mr. Cherry's dominion and control. The gun in Mr. Cherry's kitchen next to items used to manufacture methamphetamine sufficiently meets that burden.

Cherry v. State, 80 Ark. App. at 228, 95 S.W.3d at 9. Here, a loaded firearm was found in appellant's bedroom. Other items used in the production of methamphetamine were found in close proximity to the loaded gun. Given that appellant had the right to exercise control over the gun, sufficient evidence supports his conviction. See Harper v. State, supra (the evidence is sufficient if it is shown, either by direct or circumstantial evidence, that the appellant had the right to exercise control over the object).

Appellant also appears to assert for the first time on appeal that the gun was not readily accessible for use. As such, it will not be considered because the trial court never had an opportunity to rule on it. See Stokes v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 7, 2004).

Affirmed.

Hart and Glover, JJ., agree.

1 Hannah appears to be appellant's daughter.