Glasgow v. State
| Decision Date | 07 May 2003 |
| Docket Number | CACR 02-911. |
| Parties | JAMES RICKY GLASGOW APPELLANT v. STATE OF ARKANSAS APPELLEE. |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. CR-2001-191-2] HONORABLE PHILLIP H. SHIRRON, JUDGE. AFFIRMED.
Appellant James Ricky Glasgow appeals his conviction for possession of drug paraphernalia with intent to manufacture methamphetamine following a jury trial in Hot Spring County Circuit Court. Appellant makes three arguments on appeal: (1) that there is insufficient evidence to support his conviction, (2) that the trial court's denial of his motion to suppress was clearly against the preponderance of the evidence, and (3) that the trial court abused its discretion when it allowed testimony of one witness as an expert. We disagree with appellant's arguments and affirm.
We summarize the evidence presented to the jury. A narcotics unit officer, Steve Smith, said that his department had received citizen complaints of a strange odor and traffic from the mobile home located at 243 Unity Lane in Bismark, Arkansas. On May 29, 2001, at approximately 10:00 a.m., Smith followed up on the complaints by driving to the
residence. Appellant's wife gave Smith permission to look around the yard. Smith saw that in the yard, between the mobile home and a shed, was a burn pile. The burn pile had in it numerous packages of matches with the "striker plates" removed, a partially burned HCL generator, numerous pseudoephedrine packages, glassware, and Coleman brand fuel cans. It was upon this evidence that Smith presented himself to a magistrate to swear out an affidavit in support of a search warrant, which was issued at 2:10 p.m.
Upon returning with the search warrant, the locked shed was entered, wherein officers found two HCL generators, Coleman brand fuel cans, empty pseudoephedrine packages, a gas mask, cans of ether with punch-holes, extracted red phosphorous, digital scales, and multiple cans of starter fluid. Smith, having made twenty-five arrests in the last year at methamphetamine laboratories, recognized the smell in the shed as that associated with methamphetamine manufacturing.
Sergeant Handley Taylor, qualified as an expert witness, testified about the methods of methamphetamine production and explained how the items found in the shed and burn pile are used in the steps of the process. Taylor was not present at the scene, but he was asked to testify based upon his review of the evidence gathered. Taylor testified that homemade HCL generators were used, in his opinion, exclusively to process methamphetamine. Taylor acknowledged that some items needed to make methamphetamine were missing from the shed.
Appellant's wife, Bonnie Glasgow, testified at trial that she and appellant had since divorced. Bonnie said that in the months leading up to appellant's arrest, his personalitychanged. Bonnie said he missed a lot of work, he was often away from home overnight, and various people came and went at all hours of the night. She explained that before his personality change, she was allowed access to the shed, but thereafter, appellant put more locks on the shed door and would not let her inside. Bonnie said that appellant burned items from the shed in the yard.
We first address the sufficiency of the evidence argument prior to any other alleged trial errors. Etoch v. State, 343 Ark. 361, 37 S.W.3d 186. Arkansas Code Annotated section 5-64-403(c)(5) (Supp. 2001), provides that it is unlawful for any person "to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine in violation of this chapter." In determining whether there is sufficient evidence to support a jury verdict, we view the evidence in the light most favorable to the appellee and affirm the verdict if there is substantial evidence to support it. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312; Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517. Substantial evidence is evidence of sufficient force to compel a conclusion one way or another. Jones v. State, 336 Ark. 191, 984 S.W.2d 432. It must be more than mere speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459.
Appellant argues on appeal that the items found in his shed are capable of innocent use and are not drug paraphernalia. The State asserts that this argument is made for the first time on appeal and is therefore not preserved for review. We agree with the State.
Appellant moved for directed verdict at trial arguing only that "[t]here's been absolutely no proof, Your Honor, of any meth or any attempts to manufacture it." Appellantasserted that the State's witnesses were speculating. This motion was denied, renewed at the close of the evidence, and denied again. On appeal, appellant argues that the items found in the shed are not drug paraphernalia. This changes the nature and scope of the argument at trial. 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. 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. We hold that appellant is procedurally barred from challenging the sufficiency of the evidence.
Even were we to reach the merits of this argument, however, we would affirm. A jury question existed on whether appellant possessed these items, indeed capable of lawful use, with intent to manufacture methamphetamine. Appellant cites to Gilmore v. State, 79 Ark. App. 303, 87 S.W.3d 805, in support of his argument, where we reversed and dismissed a similar charge against appellants Robert and Sharon Gilmore who were stopped on a Wal-Mart parking lot just after purchasing multiple items, including three packages of antihistamines, four cans of starter fluid, some butane, and air freshener. A search of their vehicle revealed four more packages of antihistamines and some butane tanks. The case on appeal is wholly distinguishable from Gilmore. Appellant possessed a multitude of known components for a working lab, excluded his wife from access to the locked shed, destroyed some known components after use, consistent with possession of drug paraphernalia withintent to manufacture. This is more than mere purchase from retail outlets of some items used in manufacturing of methamphetamine such that the State presented enough evidence to survive a motion for directed verdict.
Appellant also challenges whether there was probable cause to issue the search warrant at appellant's residence. At the hearing on the motion to suppress, the trial judge found that such probable cause existed based upon the numerous citizen complaints and the contents of the burn pile. When reviewing a trial court's decision on a motion to suppress, this court makes an independent determination based on the totality of the circumstances. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582; Burris v. State, 330 Ark. 66, 954 S.W.2d 209. We will reverse only if the trial court's decision was clearly against the preponderance of the evidence. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646. In this review, we defer to the trial court in assessing witness credibility. Griffin, supra; Laime v. State, 347 Ark. 142, 60 S.W.3d 464.
Arkansas Rule of Criminal Procedure 13.1 concerns the issuance of search warrants. Rule 13.1(b) requires the following:
The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things...
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