Jackson v. State

Larry JACKSON v. STATE of Arkansas

CA CR 95-44                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered January 31, 1996


1.   Evidence -- circumstantial evidence sufficient to prove
     possession with intent to deliver -- trial court has
     discretion to determine what is relevant. -- A person's intent
     can seldom be shown by direct evidence and, therefore, must
     often be inferred from other facts and circumstances;
     "relevant evidence" means evidence having any tendency to make
     the existence of any fact that is of consequence to the
     determination of the action more probable or less probable
     than it would be without the evidence; the trial court is
     vested with wide discretion in determining whether evidence is
     relevant, and the exercise of that discretion will not be
     reversed in the absence of abuse. 

2.   Evidence -- admission of cash and pager proper -- possession
     of these items was relevant to the question of appellant's
     intent to deliver the cocaine he also possessed. -- It is a
     matter of common knowledge that illicit drug sales are
     ordinarily cash transactions and those involved in selling
     drugs frequently do not conduct such transactions from an
     ordinary storefront during regular business hours, but instead
     must be reached at various times and locations; therefore, the
     trial court could properly conclude that the eighteen-year-old
     defendant's possession of a significant amount of cash and a
     pager was relevant to the question of his intent to deliver
     the cocaine that he possessed; possession of a large sum of
     money is relevant to the question of delivery of a controlled
     substance, and a pager, like a firearm, is "a tool of the drug
     trade"; the trial court did not abuse its discretion in
     admitting the challenged evidence in this case.
     

     Appeal from Pulaski Circuit Court, Second Division; Chris
Piazza, Judge; affirmed.
     William R. Simpson, Jr., Public Defender, by:  C. Joseph
Cordi, Jr., Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     John Mauzy Pittman, Judge.

                           DIVISION I



                                        CACR 95-44

                                                 January 31, 1996


LARRY JACKSON                           AN APPEAL FROM PULASKI 
          APPELLANT                     COUNTY CIRCUIT COURT,
                                        SECOND DIVISION
                                        [NO. CR 94-952]

VS.
                                        HONORABLE CHRIS PIAZZA,
                                        CIRCUIT JUDGE

STATE OF ARKANSAS                       AFFIRMED
          APPELLEE




                   John Mauzy Pittman, Judge.

     Larry Jackson appeals from his conviction at a jury trial of
possession of a controlled substance (cocaine) with intent to
deliver, for which he was sentenced to ten years in the Arkansas
Department of Correction with six and one-half years suspended. 
Appellant contends only that the trial court erred in admitting
into evidence cash and a pager that were found on his person at the
time of his arrest.  We affirm.
     The evidence indicates that on the afternoon of September 29,
1993, Officer Rick Dunaway of the North Little Rock Police
Department observed several young people standing in front of a
house.  Officer Dunaway testified that the people appeared to be
under the age of twenty-one and that at least one of them was
drinking beer.  The officer stopped his car and walked toward the
group.  As he approached, he saw appellant throw a matchbox to the
ground.  The officer retrieved the matchbox, which contained
thirteen rocks of what was later determined to be crack cocaine. 
Appellant was arrested and searched.  The search revealed that
appellant also possessed $121.00 in cash and a pager.
     Appellant contends on appeal that the trial court erred in
admitting testimony about the money and pager.  He contends that
the evidence was irrelevant in the absence of some additional
testimony explaining for the jury "why and how" the pager and money
would prove that appellant intended to deliver the crack cocaine. 
We find no error.
     As noted above, appellant was charged with possession of
cocaine with intent to deliver.  A person's intent can seldom be
shown by direct evidence and, therefore, must often be inferred
from other facts and circumstances.  Johnson v. State, 6 Ark. App.
78, 638 S.W.2d 686 (1982).  "'Relevant evidence' means evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence."  Ark. R.
Evid. 401 (emphasis added).  The trial court is vested with wide
discretion in determining whether evidence is relevant, and the
exercise of that discretion will not be reversed in the absence of
abuse.  Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993).
     We think that the questions presented in this case should be
approached in a manner similar to that used by the supreme court in
Freeman v. State, 258 Ark. 496, 527 S.W.2d 623 (1975).  In Freeman,
the court was faced with the similar issue of whether the trial
court had properly admitted as relevant two handguns found in the
appellants' possession immediately after the alleged delivery of
heroin for which they were arrested and tried.  In holding that
evidence of possession of the weapons was properly admitted as
circumstantial evidence of the appellants' intent, the court
stated:
     We would think it to be a matter of common knowledge that
     narcotics transactions are frequently attended by morally
     offensive circumstances, and immoral participants.  The
     possession of two pistols by the appellants at the time
     such transaction was allegedly attempted would appear to
     have some probative force on the question of what
     business the men were about.

Freeman, 258 Ark. at 502, 527 S.W.2d  at 626-27 (footnote omitted). 
Subsequently, the supreme court has quoted with approval the Eighth
Circuit Court of Appeals' declaration that "a firearm . . . [is]
generally considered a tool of the narcotics dealer's trade." 
Hendrickson v. State, 316 Ark. 182, 190, 871 S.W.2d 362, 366 (1994)
(quoting United States v. Brett, 872 F.2d 1365, 1370 (8th Cir.
1989)).
     Here, we likewise think it to be matters of common knowledge
that illicit drug sales are ordinarily cash transactions and that
those involved in selling drugs frequently do not conduct such
transactions from an ordinary storefront during regular business
hours, but instead must be reached at various times and locations. 
Therefore, we think that the trial court could properly conclude
that this eighteen-year-old defendant's possession of a significant
amount of cash and a pager was relevant to the question of his
intent to deliver the cocaine that he possessed.  Indeed, our
supreme court has held that possession of a large sum of money is
relevant to the question of delivery of a controlled substance, see
Pyle v. State, supra, and the Eighth Circuit Court of Appeals has
recently stated that a pager, like a firearm, is "a tool of the
drug trade," United States v. Barth, 990 F.2d 422, 425 (8th Cir.
1991).  From our review, we cannot conclude that the trial court
abused its discretion in admitting the challenged evidence in this
case.
     Affirmed.
     Mayfield and Rogers, JJ., agree.