Timothy Zachary v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

TIMOTHY ZACHARY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-260

January 7, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR02-2348]

HON. WILLARD PROCTOR JR.,

CIRCUIT JUDGE

REVERSED AND REMANDED FOR RESENTENCING

Josephine Linker Hart, Judge

Appellant Timothy Zachary was convicted of possession of a controlled substance with intent to deliver and sentenced to twenty years' imprisonment. For reversal of his conviction, appellant argues 1) that there was insufficient evidence that he had possession of a controlled substance with intent to deliver, and 2) that the trial court erred by denying his motion for a new trial after the State's witnesses interjected prejudicial and inadmissible testimony before the jury. We agree with appellant's first argument and reverse and remand; thus, we need not address his second argument.

Appellant was a passenger in an automobile driven by Kerry Billings when Little Rock Police Department narcotics detectives initiated a traffic stop after the officers observed Billings exit a convenience store with three boxes of pseudoephedrine cold tablets. Before the stop, the officers followed Billings as she drove from the location of the convenience store, down I-630, through a residential area, and onto Barrow Road. Appellant was seen throwing small boxes from the vehicle. After the stop, the officers searched the vehicle and appellant. The officers found the pseudoephedrine cold tablets under the dashboard of the vehicle and a clear plastic bag containing .0993 grams of methamphetamine and $1,677 cash on appellant.

Prior to trial, the court granted a motion in limine to exclude any testimony that Billings was trying to evade apprehension by the police while she was being followed by them. At the jury trial on October 24, 2002, appellant moved for a directed verdict and moved to reduce the charge of possession of a controlled substance with intent to deliver to the charge of possession of a controlled substance. The trial court denied both motions. The jury found appellant guilty of possession of a controlled substance with intent to deliver, and the court sentenced him to twenty years' imprisonment. From that order comes this appeal.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Our definition of substantial evidence is well settled; it is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, passing beyond mere surmise and suspicion. Pettus v. McDonald, 343 Ark. 507, 336 S.W.3d 745 (2001). In Kristie's Katering, Inc. v. Ameri, 72 Ark. App. 102, 110, 35 S.W.3d 807, 812 (2000), this court stated that "in determining whether a jury's verdict is supported by substantial evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf the judgment was entered." Intent can seldom be shown by direct evidence, and, therefore, it must often be inferred from other facts and circumstances. Jackson v. State, 52 Ark. App. 7, 914 S.W.2d 317 (1996). The jury is free to believe all or part of a witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000).

The question of whether appellant possessed a controlled substance with intent to sell or deliver was a question for the jury to determine upon consideration of all facts and circumstances, and appellant's intent could be shown by circumstantial evidence. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978). In determining whether appellant possessed a controlled substance with intent to deliver, the jury may consider the quantity possessed, even though it might be small, and the nature of the possession along with any other pertinent facts. Id.

Detective Steve Pledger testified that he is employed with the Little Rock Police Narcotics Unit. He stated that on June 6, 2001, he was on duty "watching the parking lot of a BP station" and observed an individual exit the store with pseudoephedrine. While following the vehicle from the parking area, Pledger stated that he observed "small boxes being thrown from the passenger side window." After initiating a traffic stop, Pledger searched appellant and found a "plastic baggy in the watch pocket of his blue jeans," which contained "off-white, grainy powder substance" and $1,677 in cash. Pledger stated that the substance in the bag was later determined to be methamphetamine. Further, Pledger found the cold medicine under the dashboard of the vehicle.

Detective Greg Siegler testified that he is a narcotics detective for the Little Rock Police Department. Siegler stated that on June 6, 2001, he observed Billings exit the convenience store, and he and Pledger followed the vehicle. Siegler saw pseudoephedrine cold tablet boxes fall from the passenger-side window.

Appellant testified that when the officers searched him, they found a package, but he did not remember having it. Appellant stated that at the time of the arrest, he had been working for Bailey Plastering for $16 per hour. According to appellant, his employer had problems paying his payroll, and appellant was not able to cash his checks. At the time of the arrest, appellant stated that he had held four or five weeks worth of paychecks and had cashed them all at once. Appellant testified that although he had used methamphetamine, he had never sold it.

For appeal, appellant argues that there was insufficient evidence that he had possession of a controlled substance with intent to deliver. Appellant notes that Arkansas Code Annotated § 5-64-401(a)(Repl. 1997) states that it is "unlawful for any person to ... possess with intent to deliver a controlled substance." Appellant contends that the statute does not define the elements required to rise to the level of possession with intent to deliver. He states that Arkansas Code Annotated section 5-64-401(d)(Repl. 1997) provides that possession of 200 milligrams of a controlled substance creates a rebuttable presumption that a person possesses a controlled substance with the intent to deliver. Appellant argues that he possessed an amount less than that required to create a rebuttable presumption of possession with intent to deliver and that his possession of .0993 grams of methamphetamine and $1,677 in cash is not sufficient evidence that he possessed a controlled substance with intent to deliver.

The State directs our attention to Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994), as authority that a conviction for possession of a controlled substance with intent to deliver can be upheld when the defendant possessed less than the presumptive amount of a controlled substance but other proof of intent to deliver was present. In Hendrickson, the defendant was convicted of possession of LSD, and the testimony established that although Hendrickson only possessed 2.844 micrograms, several controlled substances were seized from the defendant's house, including: forty pounds of marijuana, one bag containing 1.275 grams of cocaine hydrochloride, one bag containing 0.0185 grams of cocaine, and another bag containing 112.6 grams of cocaine. The amounts of tested marijuana and cocaine seized "more than satisfied the rebuttable presumption that Hendrickson possessed the controlled substances with intent to deliver." Id. at 188, 871 S.W.2d 365.

In Rowland v. State, 262 Ark. 783, 791, 561 S.W.2d 304, 309 (1978), our supreme court held that the "jury had a right to consider the quantity possessed (even thought it might be small) and the nature of the possession along with any other pertinent fact in determining appellant's intention." Further, in Jackson v. State, 52 Ark. App. 7, 9-10, 914 S.W.2d 317, 318 (1996)(citing Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993)), this court held that "possession of a large sum of money is relevant to the question of delivery of a controlled substance." In Jackson, a police officer witnessed the defendant throw a matchbox to the ground, which was later determined to contain thirteen rocks of crack cocaine (without any statement as to the weight of the cocaine), $121 in cash, and a pager. According to the court in Jackson, possession of both the cash and the pager were relevant in determining whether the defendant possessed a controlled substance with the intent to deliver. Further, in Pyle, the defendant possessed cocaine, marijuana, drug paraphernalia, and $4,000 in cash.

In the present case, the amount of methamphetamine does not rise to a rebuttable presumption that appellant possessed the controlled substance with the intent to deliver. See Ark. Code Ann. § 5-64-104(d). The methamphetamine found on appellant was 1/280th of an ounce and was described by the forensic chemist from the State Crime Laboratory as a "very small amount." We note that in the cases cited by the State, there was evidence other than the defendant's possession of a controlled substance and cash to establish the requisite intent to deliver. In the case at bar, however, the only other evidence relied upon by the State to establish that appellant intended to sell the small amount of methamphetamine found on his person was his possession of $1,677 in cash. Here, there was only the possession of money and a small amount of methamphetamine, without additional factors, from which the jury could find the requisite intent to deliver the methamphetamine without resorting to speculation and conjecture. Therefore, we conclude that there was insufficient evidence to support appellant's conviction of possession of a controlled substance with the intent to deliver.

While there was not substantial evidence to support appellant's conviction for possession of methamphetamine with intent to deliver, there was substantial evidence to support a conviction for the lesser-included offense of possession of methamphetamine, given that appellant admitted to possession of the small quantity found on his person. Where the evidence is insufficient to sustain a conviction for a certain crime, but where there is sufficient evidence to sustain a conviction for a lesser-included offense, we may sentence the defendant or remand the case to the trial court for resentencing. See Allen v. State, 64 Ark. App. 49, 977 S.W.2d (1998). We elect to remand the case with instructions to sentence appellant for possession of methamphetamine.

Reversed and remanded for resentencing.

Neal and Baker, JJ. agree.