Billy Ferrall Yancey, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

BILLY FERRALL YANCEY, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-492

February 28, 2001

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[NO. CR 99-323]

HON. LANCE L. HANSHAW,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with possession of a controlled substance and driving while intoxicated. After a jury trial, he was convicted of those offenses and sentenced to a term of imprisonment in the Arkansas Department of Correction. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in refusing to give a requested jury instruction for possession of a controlled substance. We find no error, and we affirm.

Appellant argued below that, even if the substance in his possession was a controlled substance, the quantity he possessed was too small to constitute a "usable amount" under

Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), where our supreme court held that possession of less than useable amount of a controlled substance does not constitute criminal possession. He proffered a jury instruction that provided that:

Bill Yancey, Jr., is charged with the offense of unlawfully possessing methamphetamine. To sustain this charge the State must prove the following things beyond a reasonable doubt:

First: That Bill Yancey, Jr., possessed methamphetamine, a controlled substance, and:

Second: That he did so knowingly or purposely.

....

and:

Third: That he possessed a "usable amount." A "usable amount" is defined as (1) sufficient to permit knowledge of its presence without the need for scientific identification, (2) sufficient to be usable in the manner in which such a substance is ordinarily used, and (3) the amount has to have an effect on the "human system."

Appellant asserts on appeal that the trial court erred in refusing to give the proffered instruction. We do not agree. It is not an error to refuse an instruction that is not a correct statement of law, Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990), and the instruction proffered by appellant was not correct. Contrary to appellant's proffered instruction, the State is not required to prove that the controlled substance was possessed in an amount sufficient to have an effect on the human body. In Terrell v. State, 35 Ark. App. 185, 818 S.W.2d 579 (1991), it was expressly held that a defendant was not entitled to a jury instruction saying that, to constitute a "useable amount," a quantity of drugs had to besufficient "to have an effect on the human system." Accord, Buckley v. State, 36 Ark. App. 7, 816 S.W.2d 894 (1991).

Affirmed.

Baker and Roaf, JJ., agree.