Lloyd Edward Price v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

LLOYD EDWARD PRICE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-480

November 7, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR00-1035]

HONORABLE JOHN LANGSTON,

CIRCUIT JUDGE

AFFIRMED

Appellant, Lloyd Edward Price, was convicted by a Pulaski County jury of possession of a controlled substance (cocaine) with intent to deliver, and he was sentenced to forty years in the Arkansas Department of Correction. His sole point on appeal is that the trial court erred in refusing to give the jury an instruction on possession of a controlled substance as a lesser-included offense of possession of a controlled substance with intent to deliver. There was no error in refusing to give the instruction; therefore, we affirm.

At trial, Detective Grant Humphries of the Little Rock Police Department testified that on February 16, 2000, he and Detective Kyle King were working narcotics interdiction at the Little Rock Airport. While they were observing the arrival of a Southwest Airlines flight from Dallas, they saw two individuals deboarding that were acting suspiciously. Appellant deboarded the plane about ten to fifteen passengers behind the two individuals,

and he was also acting in a peculiar manner. Detectives Humphries and King followed appellant through the airport until he entered the restroom. As the detectives entered the escalator area, they saw the two people they had seen earlier exiting the airport. Appellant passed the detectives and quickly approached the two people, who "shooed" him away. Appellant then turned in the opposite direction and began walking toward the cabstand. The two people followed appellant, although at quite a distance behind him.

Detective Humphries approached appellant and asked permission to speak with him, to which appellant agreed. Appellant stated that he had been to Houston to see his niece for a week, although he could not supply her name. He denied that he was carrying any narcotics, firearms, or knives, and he agreed to allow Detective Humphries to search his bag. As Detective Humphries knelt down to open the bag, appellant fled from the airport; he was subsequently apprehended and arrested. Detective Kyle King stated that he took possession of appellant's bag after he fled, and after appellant was arrested, a search of the bag revealed, among other things, three Equate baby powder bottles and two Gold Bond powder bottles, which contained cocaine that Detective King opined had a street value of around $300,000. Matt Bradford, an employee of the DEA, testified that he was called for assistance after appellant's arrest. After appellant was Mirandized, he told Bradford that he had come into contact with an Anthony Rodgers in Pine Bluff and that Rodgers had told him that he was going to "hook him up." Appellant told Bradford that prior to February 16, Rodgers gave him $150 and told him to get a plane ticket to Dallas; fly there; go to a La Quinta hotel, where he was pre-registered; and stay there until he received a phone call. He told Bradford that he rode with the two people who had gotten off the plane with him in a taxi to the Dallasairport, and that they had given him the bag and his return ticket. Appellant told Bradford that when he got off the plane, they just kept turning away when he attempted to approach them.

Angela DeTulleo, a senior forensic chemist with the DEA, testified that she performed tests on the cocaine found in the baby powder and Gold Bond powder bottles. The total weight of the powder was 2,861 grams, and it ranged in purity from seventy to seventy-eight percent.

Appellant took the stand in his own defense. He said that on February 16, he arrived in Little Rock on a plane from Dallas, Texas. He said that he did not know why he was in Dallas, but Anthony Rodgers had asked him to go and had given him money to get there. He used an airline ticket in Rodgers's name, although he denied knowing Rodgers personally. He was supposed to "tote a bag" off the airplane in Little Rock, and he was to be paid fifty dollars for doing that. He said that a cab came for him at the hotel in Dallas, and a male he knew as "Moneymon" and a female were in the back seat. Appellant said that these two people were the same ones who got off the plane with him in Little Rock. The following colloquy transpired with respect to what occurred when appellant got off the plane:

Prosecutor: When you were in the airport in Little Rock, what were you supposed to do with the bag?

Appellant: Bring it out the airport where I met them, but they didn't want to take or accept it when I came out.

Prosecutor: Who didn't want to accept it?

Appellant: The man and the woman. They were standing up at the information booth when I was at the airport because I got lost in the airport. So, I had to ask somebody which way was the exit. So, by the time I made it to the escalator, I seen them outside standing up at an information booth talking to a black guy. And I was walking up, and he motioned with his hands and told me to go on. So, I just turned around, start walking off.

At that time, Detective Humphries approached appellant and asked to search his bag. Appellant said that he ran after the bag was opened and he saw the bottles; he did not know what was in the bag, but he did "have a suspicion." He also stated that he never received the fifty dollars he was promised, although he had been given some crack cocaine before he left for Dallas.

After the close of the testimony, appellant's counsel requested a jury instruction on the lesser-included offense of possession of a controlled substance, which was denied. Appellant now argues that the refusal to give the jury an instruction on possession of a controlled substance as a lesser-included offense of possession of a controlled substance with intent to deliver was reversible error.

It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). A trial court's decision to exclude an instruction on a lesser-included offense will be affirmed only if there is no rational basis for giving the instruction. Id.

It is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance. Ark. Code Ann. § 5-64-401 (Supp. 1999). Possession of a quantity of cocaine in excess of one gram creates a rebuttable presumption that it is intended for delivery. Ark. Code Ann. § 5-64-401(d). In this case, appellant possessed 2,861 grams of cocaine; therefore, the rebuttable presumption that appellant possessed the cocaine with intent to deliver was invoked.

In his argument, appellant focuses on the fact that he admitted that he possessed the bag which contained the 2,861 grams of cocaine as a basis for giving the instruction on the lesser-included offense of simple possession. However, this argument ignores appellant's testimony regarding his trip to Dallas and the fact he was given crack cocaine and was promised fifty dollars to carry a bag off the plane in Little Rock. The rationale for an instruction on possession only would have required the jury to believe that he knew the contents of the tote were contraband, but he did not intend to deliver it to anyone, which would imply that he either intended to keep it for his own use or abandon it. Most importantly, appellant's argument ignores the fact that appellant testified that he attempted to deliver the bag to the two people who had traveled with him from Dallas, but they would not accept the bag from him.

This evidence provides no rational basis for giving an instruction on the lesser-included offense of simple possession. Because there was no rational basis for giving the instruction, there was no error on the part of the trial judge in refusing to instruct the jury on the lesser-included offense of possession.

Affirmed.

Pittman and Griffen, JJ., agree.