Abshure v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: Sam Bird
• Citation: Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (Ark. App. 2002)
• Decision Date: 30 October 2002
• Docket Number: No. CA CR 01-925.,CA CR 01-925.
• Parties: Steven Ray ABSHURE v. STATE of Arkansas.

87 S.W.3d 822

79 Ark. App. 317

Steven Ray ABSHURE v. STATE of Arkansas.

No. CA CR 01-925.

Court of Appeals of Arkansas, Divisions I, II.

October 30, 2002.

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Edgar Thompson, Austin, and Teresa M. Smith, Lonoke, for appellant.

Mark Pryor, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

SAM BIRD, Judge.

Officers of the Lonoke County Sheriff's Department searched, pursuant to a warrant, Steven Ray Abshure's residence in May 2000. The search yielded ingredients of methamphetamine, paraphernalia, marijuana, and the finished product of methamphetamine. Abshure was convicted by a jury of manufacturing methamphetamine, possession of methamphetamine with intent to deliver, and possession of drug paraphernalia with intent to manufacture methamphetamine. He appeals, contending that (1) the trial court erred in denying his motion to suppress; (2) the trial court erred in allowing argument regarding charges that were withdrawn by the State (3) the trial court erred in entering a judgment based on verdict forms that evidenced confusion of the jury; and (4) the evidence presented at trial was insufficient to support a conviction for manufacturing methamphetamine and possession of methamphetamine with intent to deliver. We affirm.

Sufficiency of the Evidence

To prevent double jeopardy, sufficiency of the evidence must be considered first. Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001). Abshure contends that there was insufficient evidence that he possessed the contraband discovered at his residence and that there was insufficient evidence of an intent to deliver the methamphetamine recovered from his residence.

To convict one of possessing contraband, the State must show that the defendant exercised control or dominion over it. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Neither exclusive nor actual physical possession, however, is necessary to sustain a charge of possessing contraband; rather, constructive possession is sufficient. Id. Constructive possession may be implied when the contraband is in the joint control of the accused and another; however, joint occupancy alone is insufficient to establish possession or joint possession. Id. The State must establish in a prosecution for possessing contraband (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Id.

Officer Steve Rich testified that Abshure was apprehended within the residence after he ran to the bathroom and was attempting to flush a "pill wash," which the officer defined as the process used to obtain ephedrine from antihistamines, down the toilet. Efforts on the part of the accused to destroy or dispose of incriminating evidence can be considered evidence of consciousness of guilt. See United States v. Castillo, 615 F.2d 878 (9th Cir.1980). Control and knowledge may be inferred from the circumstances where there are additional factors linking the accused to the contraband. White v. State, 47 Ark.App. 127, 886 S.W.2d 876 (1994). 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. Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).

Here, there is no dispute that the residence at which contraband was discovered was Abshure's. Methamphetamine was discovered near the couch in the living room. Abshure was found trying to dispose of a pill wash, and he had been observed by police to be at the residence almost continually throughout their surveillance prior to executing the search warrant. Numerous items related to the manufacture, use, and possession of contraband were discovered throughout the house. We hold that there was substantial evidence to support the jury's finding that Abshure possessed the contraband.

The State contends that a challenge to the sufficiency of the evidence supporting a finding of Abshure's intent to deliver the methamphetamine is procedurally barred. We agree. A directed verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to inform the trial court of the specific basis on which the motion is made. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Id. Abshure's motion for directed verdict addressed only the sufficiency of the evidence to support a finding that he possessed the contraband found at his residence; he did not challenge the intent-to-deliver element. Thus, we hold that a challenge to the sufficiency of the evidence establishing Abshure's intent to deliver methamphetamine is procedurally barred from our review.

Motion to Suppress

Abshure contends that the affidavit for search warrant was insufficient to provide probable cause because (1) there was no time frame alleged; (2) there was no indicia of reliability of the confidential informant provided; (3) no activity was observed during the surveillance that could give rise to probable cause; (4) the affiant made a false statement concerning Abshure's criminal history; and (5) his prior arrest cannot give rise to probable cause.

The affidavit for search warrant alleged:

Fact # 1: This officer spoke to a reliable confidential informant who said that they had met with Doyle G. Thomas who had a large volume of crystal meth and a gun. They further stated that Mr. Thomas and Steve Abshure were the persons who manufactured the substance and that they "cooked" on a regular basis (one or two times a week). The informant also said that Mr. Thomas and Abshure always keep a gun in their vehicle or on their person.

Fact # 2: This agency along with Cabot Police Department recently did a search of Mr. Abshure's residence which resulted in his arrest for several drug and paraphernalia charges, the search also revealed several items commonly used in the manufacture of crystal meth. Mr. Abshure is currently out on bond for these offenses. Surveillance of Mr. Abshure's residence did indicate lots of late night activity and a strong chemical odor. Mr. Thomas was at the residence all day and night (5-3-00).

Fact # 3: This officer also recently spoke to an individual who was separated from his wife and was concerned because of her substance abuse (meth) and the fact that she took their small child with her. He stated that she left with Mr. Doyle Thomas because he and Steve Abshure could supply her meth habit. The informant insisted that someone check on the child it could be in serious danger if left with her while they were "cooking."

Fact # 4: An ACIC check revealed Mr. Abshure to have a criminal history for controlled substance violation. Because of the possible danger the child may be in, the public danger affiliated with the chemicals used to manufacture of crystal meth, the possible loss evidence, a search warrant is needed.

A time reference must be included in an affidavit for search warrant, but the time may be inferred from the information in the affidavit itself. Heaslet v. State, 77 Ark.App. 333, 74 S.W.3d 242 (2002). The time that is critical is the time during which the criminal activity was observed. Id. The affidavit in the case at bar provided that surveillance of Abshure's residence, during which a strong chemical odor was noticed, was conducted on May 3, 2000. The affidavit was sworn on May 4, 2000. From this information in the affidavit, the time reference can be sufficiently inferred.

A search warrant is flawed if there is no indicia of the reliability of the confidential informant. Fouse v. State, 73 Ark.App. 134, 43 S.W.3d 158 (2001). Furthermore, the conclusory statement, "reliable informant" is not sufficient to satisfy the indicia requirement. Id. If, however, the affidavit when viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure may be found in a particular location, the failure to establish the veracity of the informant is not fatal. See Ark. R.Crim. P. 13.1; Fouse, supra.

Here, the affidavit contains only the impermissible conclusory description of the confidential informant described in Fact # 1 as "reliable." No facts attesting to his reliability were asserted in the affidavit.

The informant described in Fact # 3 was an estranged husband, concerned about the safety of his daughter living in Abshure's house, where he alleged methamphetamine was being manufactured. The affidavit provided no means of identifying this informant and there was no indication that his assertions were based on personal observations. Therefore, contrary to the State's contention that this informant should be characterized as a concerned citizen, we characterize this informant as a confidential informant. As with the first confidential informant, there were no facts attesting to his reliability asserted in the affidavit.

Even though the reliability of the confidential informants was not established and, therefore, could not, alone, provide probable cause for issuance of the search warrant, we hold that the affidavit as a whole presented a substantial basis to conclude that probable cause existed to believe that things subject to seizure would be found at the residence. The police conducted surveillance that corroborated the information relayed by the informants. The police observed "lots of late night activity" and a strong chemical odor at Abshure's residence. Further, the police observed that Thomas was at Abshure's residence "all day and night," supporting the informant's information that Thomas and Abshure were both engaged in the manufacture of...