Loy v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: John F. Stroud
• Citation: Loy v. State, 195 S.W.3d 370, 88 Ark. App. 91 (Ark. App. 2004)
• Decision Date: 13 October 2004
• Docket Number: No. CACR 03-205.,CACR 03-205.
• Parties: Earl W. LOY, Appellant v. STATE of Arkansas, Appellee.

195 S.W.3d 370

Earl W. LOY, Appellant v. STATE of Arkansas, Appellee.

No. CACR 03-205.

Court of Appeals of Arkansas, Divisions IV, I.

October 13, 2004.

COPYRIGHT MATERIAL OMITTED

Kathy L. Hall, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Brent P. Gasper, Ass't Att'y Gen., Little Rock, for appellee.

JOHN F. STROUD, Chief Judge.

Appellant, Earl Loy, was convicted in a bench trial of possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced to ninety months in the Arkansas Department of Correction, with sixty months suspended, and he was assessed $160 for court costs. On appeal, he argues that the trial court erred (1) when it denied his motion to suppress evidence in what he characterized as an illegal search and (2) in finding that there was sufficient evidence to support his conviction. We affirm appellant's conviction.

On the evening of October 29, 2001, Officers Samuel Spenser and Mark Willis of the Hot Springs Police Department went to 109 Boaz in Hot Springs to attempt to serve two misdemeanor arrest warrants on appellant. A U.S. Park Ranger had advised the officers that he had followed appellant to that address. Officer Spenser testified that he approached the residence, a mobile home, and knocked on the door inside the carport area. When he knocked on the door, a male voice just inside the door asked, "Who is it?" When Spenser identified himself as the police, the voice inside told him "just a minute," and Spenser heard footsteps inside running toward the back of the trailer. Spenser advised Willis that he thought appellant was going to abscond, and Willis went to the back of the trailer.

Spenser knocked again, and when he was told "just a minute" a second time, he told the person inside that if he did not come out, he would bring the police dog out. At that time, appellant, whom Spenser recognized from a photo, opened the door, looked around, told the officer "just a minute" again, and closed the door. Spenser heard more footsteps inside, knocked again, and appellant answered the door again.

Spenser said that when appellant opened the door, a smell hit him immediately, his eyes and nose began to burn, and his lips and tongue began to go numb. He saw a large trash bag on the floor right inside the door with a lot of matches pouring out of it and some gloves lying on the floor, and he said that the air-conditioner was blowing full blast even though it was cold outside and the windows were open. Spenser testified that he turned to Willis and said, "meth," to which appellant replied, "You got a search warrant? You need a search warrant for that."

Spenser asked appellant who he was, and appellant told them that his name was Steve; however, both officers recognized appellant as the person for whom they had the arrest warrants, and they took him into custody. Spenser said that when they removed appellant, he also saw a syringe lying on the coffee table. The officers saw a female sitting at a table by the door who was identified as Nancy Lyon, and she told them that there was a female in the back. Willis did a sweep of the residence at that time.

On cross-examination, Spenser said that there was a door frame to the carport, but that he went inside that area and knocked on the trailer door. He said that the door on the outside of the carport was not a secure door.

Officer Willis's testimony corroborated that of Officer Spenser regarding how the officers approached the door and what appellant did as they were attempting to get him to open the door. After taking appellant into custody, Willis said that he noticed the female sitting at the kitchen table to the right of the door, and he saw the large bag of matches with the striker plates missing, a syringe on the coffee table, a large bag, and gloves in front of the bag. Due to the female's response that she thought someone else was in the residence, Willis walked through the trailer and found a man, Dana Ecker, in the bathroom, and another man, Michael Howell, asleep in the bedroom, and he took those individuals outside, along with Nancy Lyon. Willis denied that he opened any cabinets or drawers.

Richard Norris, an investigator on the drug task force, testified that he arrived at the residence after Spenser and Willis had taken several people out of the residence. He noticed strong odors when he arrived that were a culmination of the odors he associated with meth labs. He also saw sitting on the front porch a large glass jar containing a red liquid and a dark sediment and a bucket that had a cloth filter on top containing gray crystals that appeared to him to be iodine crystals. He also saw the books of matches inside the front door.

Norris entered the residence to make sure that there were no items that could cause an explosion and to ventilate the residence by opening more windows. Norris also turned off the air conditioning; made sure that there were no open chemicals; and made sure that there were no open flames, open fires, or open heaters burning. When he walked to the back bedroom, he saw what appeared to be a hydrogen gas generator protruding from under the bed that was still putting off an acid vapor. He also found a female hiding under the bed, later identified as Paula George. After removing George, the residence was secured, and Norris applied for a nighttime search warrant, which was granted. The basis for it being a nighttime search warrant was, "The Affiant [Norris] states that the residence cannot be properly secured so as to not pose a danger to the community or anyone who might enter. The Affiant believes that exigent circumstances exist to warrant conducting the search during nighttime hours." The warrant was executed, and numerous items related to the manufacture of methamphetamine were found inside and outside the residence, as well as in the garbage of the residence.

Dana Ecker, the man found in the bathroom of the residence, testified that he knew appellant lived at the residence, but he did not know if appellant's landlord, Terry Floyd, was still living there at the time of appellant's arrest. He said that when he went to the residence that night, he did not knock on the carport door, but instead knocked on the trailer door. He said that he was there when Michael and Paula came in, but that he did not notice anything in their hands. He said that he was drinking that night, but that he did not smell anything unusual in the trailer and he did not see anyone doing anything that he thought was illegal.

Jacqueline Reynolds testified that the residence had been her mother's, but that after she died, her brother, Terry Floyd, lived there. However, she said that Floyd had moved out in the summer of 2001, and that appellant was allowed to live there because he was working on some cars. She described the carport as a breezeway and said that it had not been screened in for over a year. She said that when she approached the trailer, she would go to the metal door on the trailer, not the one outside, because you could not knock on that one.

Carla Veazey testified that appellant lived at her deceased grandmother's house and that she had been there several days prior to appellant's arrest and found him cooking meth. She said that appellant promised to quit if she did not call the police, and she agreed.

The State rested, and appellant rested without calling any witnesses. Appellant made his arguments for his motion to suppress and his motion for directed verdict. The trial court took the issues under advisement and later issued a letter ruling denying appellant's motion to suppress and finding him guilty. Appellant now brings this appeal.

Appellant contends that the trial judge erred in denying his motion for directed verdict. A directed-verdict motion is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). Although appellant's argument regarding the sufficiency of the evidence to support his conviction is his second point of appeal, preservation of his right against double jeopardy requires that the appellate court consider the challenge to the sufficiency of the evidence before alleged trial error is considered, even though the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark.App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Id.

Appellant contends that there was no evidence presented at trial that connected him with the drug paraphernalia found in the residence, and therefore the State failed to prove that he exercised care, control, and management over the contraband or that he knew that it was in fact contraband. He argues that there was no testimony that he purchased any of the items seized, that he was seen holding or using any of the items seized, that his hands were stained, or that he appeared to be under the influence of methamphetamine. He further points to the fact that Investigator Norris, when asked what evidence connected appellant to the items in the home other than the fact that he lived there, replied that there was nothing.

In order to prove possession, it is not necessary to prove literal physical possession of contraband. See Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Contraband is deemed to be constructively possessed if the location of the contraband was under the dominion and control of the accused. See Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998)....