Collier v. State

Cite as 2014 Ark. App. 244
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-772
Opinion Delivered April 23, 2014
APPEAL FROM THE SEBASTIAN
TRACY G. COLLIER COUNTY CIRCUIT COURT,
APPELLANT FORT SMITH DISTRICT
[NO. CR-2012-597(b)]
V.
HONORABLE J. MICHAEL
FITZHUGH, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
ROBIN F. WYNNE, Judge
Tracy Collier appeals from his conviction for possession of drug paraphernalia under
Arkansas Code Annotated section 5-64-443(b) (Supp. 2013).1 On appeal, he challenges the
sufficiency of the evidence supporting his conviction. We affirm.
Collier was tried by a Sebastian County jury in July 2013. The evidence at trial
included the following. On May 3, 2012, Corporal Randy Patterson of the Fort Smith
Police Department responded to a report of people burning something during a burn ban,
and possibly stripping copper. When Patterson arrived, Collier and his girlfriend, Clara
1
Arkansas Code Annotated section 5-64-443(b) provides: “A person who uses or
possesses with the purpose to use drug paraphernalia to plant, propagate, cultivate, grow,
harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack,
repack, store, contain, or conceal a controlled substance that is methamphetamine or cocaine
upon conviction is guilty of a Class B felony.”
Cite as 2014 Ark. App. 244
Gilley, were sitting by a burn barrel on the vacant piece of property, and Patterson believed
that the woman was trying to keep him back at his car, away from the area around the burn
barrel. Patterson noticed a mason jar with a coffee filter tucked down into it, which he
knew from experience was used in making methamphetamine, and then he saw a Dr. Pepper
bottle containing white powder, more coffee filters, and a bottle of Liquid Fire drain
cleaner—all items used in the process of making methamphetamine. Patterson called for
narcotics officers. Narcotics Investigator Greg Napier testified that he responded to the call
about the possible methamphetamine lab and was responsible for photographing the
evidence: a set of pliers; a one-liter Dr. Pepper bottle with salt inside; a plastic water bottle;
Coleman camp fuel, which had been hidden in a pile of mulch; tools used to strip lithium
batteries; a bottle of lye; drain cleaner; mason jars with coffee filters; small plastic bags
containing contents of a cold pack; a measuring cup; and a rubber glove. Napier testified
that it did not appear that they had actually “cooked” the methamphetamine yet.
George Lawson, narcotics supervisor for the Fort Smith Police Department, testified
as an expert regarding methamphetamine labs. He testified as to how the items found at the
scene were used in the “one pot” or “shake and bake” method of manufacturing
methamphetamine.
Detective Donnie Ware testified that he advised Collier of his Miranda rights and
questioned him at the scene. Initially, Collier claimed that the camp fuel was for a campfire.
Ware testified that Collier then stated that he had been with Ms. Gilley at the same location
when she had made methamphetamine on other occasions. Collier stated that, while they
did not have all of the necessary ingredients yet, he was going to get lithium batteries and
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Cite as 2014 Ark. App. 244
bring them back. Detective Darrell Craghead testified that he interviewed Collier later that
day at the jail. Collier stated that he and Ms. Gilley had been together since November
(roughly seven months); that she was the one who knew how to cook methamphetamine;
that he had watched her cook methamphetamine at that location approximately three or four
times; that she had taught him to strip lithium batteries; and that he had done so on one
occasion but did not care for it because it made him nervous.
At the close of the evidence, appellant made a motion for a directed verdict, arguing
that Clara Gilley was the one who was intent on making methamphetamine. The court
denied the motion. Collier was found guilty of possession of drug paraphernalia and
sentenced as a habitual offender to eighteen years in the Arkansas Department of Correction.
He filed a timely notice of appeal on August 5, 2013.
On appeal, Collier argues that the evidence was insufficient to support his conviction.
Specifically, he argues that his girlfriend was the owner of the property, while he was merely
present at the scene, and that there was “no evidence presented to show [that he] exercised
dominion and control over the contraband.”
We treat a motion for a directed verdict as a challenge to the sufficiency of the
evidence. Coggin v. State, 356 Ark. 424, 431, 156 S.W.3d 712, 716 (2004). Our supreme
court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we
view the evidence in a light most favorable to the State and consider only the evidence that
supports the verdict. See id. We affirm a conviction if substantial evidence exists to support
it. Id. Substantial evidence is that which is of sufficient force and character that it will, with
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reasonable certainty, compel a conclusion one way or the other, without resorting to
speculation or conjecture. Id.
Regarding the issue of possession, our supreme court has written:
It is not necessary for the State to prove that an accused physically held the
contraband, as possession of contraband can be proven by constructive possession,
which is the control or right to control the contraband. Constructive possession can
be implied where the contraband is found in a place immediately and exclusively
accessible to the defendant and subject to his control. Where there is joint occupancy
of the premises where contraband is found, some additional factors must be present
linking the accused to the contraband. Those additional factors include (1) that the
accused exercised care, control, or management over the contraband; and (2) that the
accused knew the matter possessed was contraband. 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. In addition, an accused’s suspicious behavior coupled with
proximity to the contraband is clearly indicative of possession.
Loggins v. State, 2010 Ark. 414, at 4–5, 372 S.W.3d 785, 789–90 (internal citations omitted).
Here, additional factors linked Collier to the drug paraphernalia. He was present at the scene
where the drug paraphernalia was in plain view. Furthermore, he admitted to being aware
of what was going on and in fact admitted that he planned to help with the manufacture of
methamphetamine by getting lithium batteries. Under these circumstances, we hold that the
evidence was sufficient to support Collier’s conviction for possession of drug paraphernalia.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
David L. Dunagin, for appellant.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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