Myers v. State, CACR 06-709 (Ark. App. 3/21/2007)
| Decision Date | 21 March 2007 |
| Docket Number | CACR 06-709 |
| Parties | Michael Wade MYERS and Scott Lynn Hall, Appellants v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
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v.
STATE of Arkansas, Appellee
Appeal from the Lonoke County Circuit Court; [Nos. CR-2003-204, CR-2003-206]; Honorable Lance Lamar Hanshaw, Judge.
Affirmed.
JOHN B. ROBBINS, Judge
Appellant Michael Wade Myers and appellant Scott Lynn Hall, who are half-brothers, were each convicted by a jury of various drug-related offenses. Both were convicted of manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of drug paraphernalia. In addition, Mr. Myers was convicted of possession of methamphetamine, and Mr. Hall was convicted of possession of methamphetamine with intent to deliver. Mr. Myers was sentenced to a total of twenty-four years in prison, while Mr. Hall was sentenced to a total of twenty years. In this joint appeal, both appellants argue that the trial court erred in denying their motions to suppress the contraband, and that the evidence was insufficient to support their convictions. We affirm.
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At the suppression hearing, it was established that the appellants' mother, Judy Gamet, lived in a residence at 10588 Highway 165 in Scott, Arkansas. Officer Doug Estes of the Arkansas State Police received information from another officer that Mr. Myers and Mr. Hall were manufacturing methamphetamine at that location. Officer Estes also obtained information that there was an arrest warrant for Mr. Myers for a probation violation. Based on this information, Officer Estes and other officers proceeded to that location to investigate on May 16, 2003.
Upon arrival, the officers found Mr. Hall and a man named Joe Hulsey inside a garage on Ms. Gamet's property. The door to the garage was partially open. A power cord was connected between the garage and a nearby mobile home, which was also on Ms. Gamet's property. Upon being confronted by the police, Mr. Hulsey asserted that he was helping Mr. Hall work on a car.
Kevin Collie, who at the time was Mr. Hulsey's parole officer, assisted in the investigation. In the process of speaking with Mr. Hulsey and Mr. Hall, Mr. Hall informed Officer Collie that he was on probation. The police conducted a pat-down search of both men, and both Mr. Hulsey and Mr. Hall were found to be in possession of several small plastic baggies containing methamphetamine. According to Officer Collie, he had authority to search Mr. Hulsey based on his conditions of parole. Officer Collie found Mr. Hall's probation officer's business card in Mr. Hall's wallet, and called her to report what he had found. Officer Collie "asked if she wanted me to do a courtesy search for her and she said
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yes." Mr. Hall's probation officer testified at the suppression hearing that as a condition of probation Mr. Hall must submit to a search by a probation officer at their request.
Officer Collie testified that, after Mr. Hall's probation officer gave permission to search, the officers looked around the garage and also inside the mobile home. During the walk-through of the garage, the officer found several packets of pseudoephedrine located under the open hood of the car in repair. Upon looking inside the mobile home, the police observed numerous items used in the manufacture of methamphetamine. Based on this information, the police sought and obtained a warrant to search the mobile home.
During the search of the mobile home, the police seized contraband used to manufacture methamphetamine. While executing the search, the police also proceeded to a small white residence on adjacent property owned by Karen Hall, who is Mr. Hall's ex-wife. According to Officer Collie, there was a video camera in the window of the residence. When Officer Estes attempted to open the door to the residence, he felt an electric shock from the doorknob. After gaining entry, Officer Estes "found something like a cattle fence attached to the doorknob and plugged in to a 110-volt electrical outlet." The police asked if anyone was in the building, and there was no response. Subsequently, Mr. Myers was found in the back of the house, and was taken into custody. In the kitchen cabinet of the house, the police found a pill soak in a bottle with pseudoephedrine hydrochloride and methanol, which is a process used in the manufacture of methamphetamine.
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Ms. Gamet testified that, on the day of the searches, Mr. Hall lived in her house at 10588 Highway 165. She stated that Mr. Myers was living in Texas at the time, and that she did not know he was on her neighbor's property that day until he was arrested by the police. According to Ms. Gamet, the trailer searched by the police has its own address, although it had been more than six months since anyone had lived there. Ms. Gamet stated that she owned the trailer, but that Mr. Hall "had access to plug in his cord if he wanted to, like the cord that was plugged in when they came out there that day." Ms. Gamet testified that on the day at issue the police asked for her consent to search and that she repeatedly refused, a fact not disputed by the police.
Ms. Hall testified that she lives in Cabot and, while she owns the white house adjacent to Ms. Gamet's property, she has not lived there in more than eight years. Ms. Hall stated that Mr. Myers was not renting her property in May 2003, and that "I didn't have any idea he was living out there." She indicated that at that time she thought the house was vacant and locked, and stated that Mr. Myers did not possess a key or have specific permission to enter. However, Ms. Hall indicated that she has a good relationship with Mr. Myers, that he had lived with her when he was younger, and that "I wouldn't really have an issue with him spending the night in that house if he chose to."
Officer Estes testified again at the appellants' jury trial. Much of his testimony about the events of May 16, 2003, was substantially the same as that elicited at the suppression hearing. Officer Estes also gave additional testimony that some stained coffee filters were
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seized from the garage where Mr. Hall and Mr. Hulsey were found. He further stated that upon executing the search warrant on the trailer, he observed smoke or haze and a chemical odor emitting from the doorway area. Officer Estes testified that upon entry into the white house, the police found Mr. Myers "hiding" in the back. On the kitchen counter in the white house the police found a burnt aluminum-foil smoking device containing methamphetamine residue, as well as a police scanner.
Although listed as a second point on appeal, both appellants challenge the sufficiency of the evidence to support their convictions. When an appellant challenges the sufficiency of the evidence on appeal, we address that argument prior to any other alleged trial errors. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). In making our review, we view all of the evidence, even that which may have been erroneously admitted, in the light most favorable to the State. Dodson v. State, 88 Ark. App. 380, 199 S.W.3d 115 (2004). The test is whether there was substantial evidence to support the verdict. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion or conjecture. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).
Mr. Hall argues that there was no substantial evidence that he possessed any of the contraband seized from the garage or the trailer.1 Mr. Hall notes that he was not found to
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be in actual possession of any of these items. He acknowledges that constructive possession, which is the control or right to control the contraband, may be established by circumstantial evidence. See Knight v. State, 51 Ark. App. 60, 908 S.W.2d 664 (1995). However, when circumstantial evidence is alone relied on for a...
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