James Derrick Riley v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JAMES DERRICK RILEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-438

February 4, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2001-003804]

HON. JOHN PLEGGE,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Following a bench trial, the Pulaski County Circuit Court convicted James Derrick Riley of possession of cocaine with intent to deliver and possession of marijuana. He was sentenced to eight years' imprisonment. On appeal, appellant argues that the trial court erred in denying his directed-verdict motion with regard to the charge of possession of cocaine with intent to deliver. We affirm.

On September 25, 2001, Officer Brian Grigsby received an anonymous call about drugs that led him and another officer to knock on a door at the Master's Inn in Little Rock. Appellant opened the door. A male, later identified as Zabrian Mitchell, and three young females were present in the room along with appellant. Officer Grigsby testified that there was a strong odor of marijuana coming from the room. From the open door, he saw marijuana seeds and dried-up marijuana leaves on the dresser. Also, out of the corner of his eye, he saw a gun on top of the dresser. When he saw the gun, he asked the occupants of the room to step out into the hallway for the officers' safety. He asked them if there was anything else in the

room that he should know about, and appellant said that he did not know but that the officer could check if he wanted. Besides the items in plain view, the officers found a bag of marijuana and a bag of cocaine inside the dresser. Specifically, there were 5.9 grams of marijuana and 7.846 grams of cocaine base. Police also found a key ring belonging to appellant that had the motel door key on it as well as the key to a stolen car parked outside.

The three females who were in the motel room with appellant testified for the State. Deanna Ousley testified that she and the other females accompanied appellant to the motel room for a party but that appellant and Mitchell were playing video games. Appellant asked her if she wanted to ride with him to get some "weed." She stated that after they purchased the marijuana, they picked up a male by the name of "Slick" and that, upon returning to the room, appellant and "Slick" went into the bathroom where they remained for approximately one minute. Regarding "Slick," Ousley testified that appellant "gave him what he came up there for" and "gave him some crack, I guess." Ousley stated that at some point that evening, appellant pointed a gun at her, which made her angry. She left, but appellant brought her back to the room and explained that he was just joking. Tassy Nelson testified that she rode with appellant and Ousley to buy the marijuana, which they all were smoking in the room. She confirmed that appellant had a gun in the room. Nelson also stated that a man accompanied them back to the room and left shortly afterwards. Angela Hicks testified that she did not ride with the others to purchase the marijuana but that she was smoking it with the others when the police came to the door.

A motion to dismiss, identical to a motion for a directed verdict in a jury trial, is treated as a challenge to the sufficiency of the evidence. See Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. See id. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We consider only the evidence that supports the verdict. See Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000).

Arkansas Code Annotated section 5-64-401(a) (Supp. 2001) provides that it is unlawful for any person to possess a controlled substance with intent to deliver. Intent, or state of mind, ordinarily is not subject to direct proof, but usually must be inferred. See Lewis v. State, 7 Ark. App. 38, 644 S.W.2d 303 (1982). Moreover, possession of more than one gram of cocaine creates a rebuttable presumption that the person possesses it with intent to deliver. Ark. Code Ann. § 5-64-401(d) (Supp. 2001).

Appellant argues that there was no evidence that he actually sold any cocaine and no evidence that anyone used it either. He contends that the transaction in the bathroom could have been a sale of marijuana, and not cocaine. We agree that the evidence does not reveal an actual sale or transfer of cocaine by appellant. However, such evidence is not necessary to obtain a conviction for possession of cocaine with intent to deliver. The key element of the crime is intent to deliver, not actual delivery. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Appellant further maintains that the quantity of cocaine seized was consistent with usage considering that he and several others were in the motel room. He contends that the trial court should have considered the quantity as only one factor in determining whether there was specific intent to deliver. We need look no further than the amount of the drug recovered from appellant's motel room. See id. Because appellant possessed 7.846 grams of cocaine, which is an amount in excess of the statutory presumption, substantial evidence supports his conviction for possession of cocaine with intent to deliver.

Affirmed.

Stroud, C.J., and Hart, J., agree.