Jones v. State/Dissent Imber
ANABELLE CLINTON IMBER, Justice, dissenting. Today the majority opinion overrules Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), by adopting an analysis specifically rejected by the majority opinion in that case. I agree with the majority decision in Harbison and must, therefore, respectfully dissent.
In Harbison, we held that the State must prove a defendant possessed a "usable amount" of a controlled substance to support a conviction for possession of a controlled substance under Ark. Code Ann. § 5-64-401(c). Id. We looked to the statutory language criminalizing possession of a controlled substance and determined that the legislation was aimed at preventing the "use of or trafficking in drugs." Id. at 323, 790 S.W.2d at 151. In crafting the opinion, this court rejected the position adopted by a majority of states that a finding of an "identifiable" amount of a controlled substance is sufficient to support a conviction for possession. Instead, we adopted a standard that requires a "useable" amount and stated:
We recognize the possibility that one may be in possession of an amount of a controlled substance sufficient to permit knowledge of its presence and yet still not be in possession of a useable amount.
Id. at 322, 790 S.W.2d at 151. The dissent disagreed, stating that "a more dependable standard would be whether the amount is sufficient to permit identification of the substance." Id. at 324, 790 S.W.2d at 151 (Hays, J., dissenting). Today the majority supplants the "usable amount" standard with an "identifiable" standard stating "there was enough substance in the plastic bags to weigh and test." In Harbison, we adopted a "usable amount" standard, not a "weigh and test" standard.[1]
We adopted the "usable amount" standard under the analysis provided by the Arizona Supreme Court in State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962), and explained that the Arizona Supreme Court "held that 'in those cases where the amount is incapable of being put to any effective use' the evidence is insufficient to support a conviction." Harbison v. State, 302 Ark. at 321, 790 S.W.2d at 150 (1990) (emphasis added) (quoting State v. Moreno, supra). The Arizona courts have continued to apply the "usable amount" standard to possession cases. See State v. Quinones, 105 Ariz. 380, 465 P.2d 360 (1970); State v. Urias, 8 Ariz.App. 319, 446 P.2d 18 (1968). As reflected in the decisions by the Arizona appellate courts, in order to sustain a conviction for possession of narcotics when the amount of narcotic is so small as not to be within the realm of an uninformed layman's knowledge of its usability, there must be evidence as to the sufficiency of the narcotic to be usable under the known practice of narcotic addicts. See State v. Quinones, supra; State v. Urias, supra.
In this case, Cindy Moran, a chemist at the Arkansas State Crime Laboratory, testified to the amount of substance seized. With respect to the five baggies, Ms. Moran testified that:
On [Bag 1], it was .2472 grams of methamphetamine and nicotinamide. [Bags 2 through 5] was 0.3 percent methamphetamine with nicotinamide and the weight of the powder was .6367 grams.
Ms. Moran went on to testify that she separated Bag 1 and did not perform a quantitative analysis on it because the substance found was weaker than the substance in Bags 2 through 5. She then testified that the percentage of methamphetamine found in Bags 2 through 5 was 0.3 percent. The total substance weighed .6367 grams. Thus, Ms. Moran concluded that there were only 1.9 milligrams of methamphetamine in Bags 2 through 5. She also testified that Bag 1 could not have contained more that 0.3 percent methamphetamine. Therefore, a maximum of .7 milligrams of methamphetamine could have been found in Bag 1, and the total weight of controlled substance was not more than 2.6 milligrams.
After determining the total amount of illegal substance seized, the following colloquy ensued:
Q. Is there a useable amount?
A. Well, we always say that if we can identify it we can test it and we can get results, then, in our minds, yes, there was some there.
Q. Are you trying to tell this jury that you know that this amount could be used to intoxicate a person or place them under the influence of methamphetamine?
A. I can't testify to that.
In an attempt to salvage its opinion, the majority inserts the critical words "usable amount" into Ms. Moran's statement. Her testimony, however, makes it abundantly clear that she could only testify that there "was some" methamphetamine and that the total substance could be measured. Nothing in Ms. Moran's testimony can be construed as evidence that the substance seized could be put to "any effective use." See Harbison v. State, 302 Ark. at 321, 790 S.W.2d at 150. Our standard established in Harbison requires the State to prove more than an "identifiable" or "measurable and testable" amount; rather, the State must show the amount to be "usable."
The majority citation to Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990), is inapposite. In that case, the defendant challenged the sufficiency of the evidence to support his conviction for possession of a controlled substance arguing that the State failed to show he possessed a "useable amount." Id. We held that the defendant failed to properly preserve the specific objection by only making a general motion for a directed verdict. Id. Nonetheless, we indicated that a vial containing 100 milligrams of methamphetamine would have been "sufficient to overcome a general motion for directed verdict as made by the defendant." Id. at 266, 801 S.W.2d at 643 (emphasis added). In this case, however, Mr. Jones specifically argued in his motion for directed verdict that the State failed to prove the substance seized was a "useable amount." In any event, finding 2.6 milligrams of methamphetamine from the residue in five different baggies is not analogous to finding 100 milligrams of methamphetamine in a vial.
Likewise, the majority's reliance on Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994), is misplaced. In that case, the defendant was charged with possession of a controlled substance with intent to deliver, not mere possession. Id. This court has never applied the "usable amount" standard to possession with intent to deliver cases. Indeed, the court has recognized that based on the specific statutory language, only a specified "measurable amount" of controlled substance is necessary to infer an intent to deliver. Id.; Ark. Code Ann. § 5-64-401(a)(1) (Supp. 2003) (defining the presumption by "aggregate weight"). Despite our holding in Harbison, supra, over a decade ago, the General Assembly has not amended the statutory language in Ark. Code Ann. § 5-64-401(c) to employ a weight-based standard.
In addition, this court has held that the prosecutor's failure to introduce evidence of a usable amount did not preclude a conviction for possession with intent to deliver in view of a trafficking scheme observed by police detectives. See Conley v. State, 308 Ark. 70, 821 S.W.2d 783 (1992). Indeed, the Arizona courts have similarly distinguished between possession of a controlled substance and sale of a controlled substance. See State v. Ballinger, 110 Ariz. 422, 520 P.2d 294 (1974). Based on inapposite cases, the majority implants a weight-based standard into Ark. Code Ann. § 5-64-401(c) where none exists.
The Urias case, where the Arizona court reversed a conviction for possession, is indistinguishable from the case at bar. There, the State presented evidence showing that there was approximately 533 milligrams and 582 milligrams of a substance containing 18% heroin by chemical analysis. However, there was no testimony concerning the usability of the narcotic. State v. Urias, supra. The court explained that a little over 1,000 milligrams of which 18% was heroin by analysis was such a small amount as not to be within the realm of an uninformed layman's knowledge of its usability. State v. Urias, supra. Here, we have less narcotic than that which was at issue in Urias; there was less than 1,000 milligrams of which not more than .3% was methamphetamine by chemical analysis. In addition, like the prosecution in Urias, the State in this case provided no evidence of usability.
In order to effectuate the intent of the General Assembly in criminalizing possession of a controlled substance, that is, preventing the use of or trafficking in drugs, the State must provide some evidence of the drug's usability. Otherwise, a person possessing a pound of ordinary cooking flour containing any indication of methamphetamine would be guilty of possession of a controlled substance. Such a holding eviscerates our holding in Harbison and borders on a strict liability standard.
In my opinion, where the amount of narcotics involved is so small as not to be within the realm of an uninformed layman's knowledge of usability, there must be evidence presented by the State as to its "usability." See State v. Quinones, 105 Ariz. 380, 465 P.2d 360 (1970). The State provided no such evidence in this case.
GLAZE, J., and CORBIN, J., join.
- ↑ In a footnote, the majority attempts to call into doubt the holding in Harbison by suggesting that the Texas Court of Criminal Appeals has overruled cases mentioned in that decision. Yet, in adopting the "usable amount" standard, the Harbison court did not rely on either Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122 (1956) or Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, 173 (1957).