Stanley Keith Orick v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

STANLEY KEITH ORICK

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-128

FEBRUARY 2, 2005

APPEAL FROM THE GREENE

COUNTY CIRCUIT COURT

[NO. CR2000-345]

HONORABLE JOHN NELSON

FOGLEMAN, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Stanley Keith Orick was convicted by a jury of possession of methamphetamine with intent to deliver and simultaneous possession of drugs and firearms. He was sentenced to forty years' imprisonment for each conviction, with ten years of the simultaneous-possession conviction to run consecutive to the first conviction, for a total of fifty years to be served in prison. Mr. Orick now appeals, arguing that the trial court erred in failing to grant his motion for directed verdict on the charge of possession of methamphetamine with intent to deliver. Mr. Orick concedes that he possessed methamphetamine, but argues that there was no substantial evidence of his intent to deliver the drugs. We affirm.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. We view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2002). Decisions regarding the credibility of the witnesses are for the trier of fact. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). The fact finder is not required to believe any witness's testimony, especially the testimony of the accused, because he is the person most interested in the outcome of the trial. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003).

Officer Clint Eubanks testified that he was in his patrol car on the night of October 25, 2002, when he observed a truck driving with no taillights. He followed the truck until it came to a stop in a driveway in front of a house. According to Officer Eubanks, he approached and recognized Mr. Orick as the driver. Officer Eubanks told Mr. Orick that his taillights were not working, and advised him not to drive the truck at night until they were fixed. Officer Eubanks then returned to his patrol car and started to drive away.

Soon thereafter, Officer Eubanks was informed by police dispatch that there was a warrant out for Mr. Orick's arrest. Officer Eubanks then called for backup and drove back to the residence. Upon returning, he saw Mr. Orick getting back into his truck as if he were leaving.

Before Mr. Orick was able to leave, Officer Eubanks confronted him about the arrest warrant. Officer Eubanks testified that Mr. Orick became very nervous and reached in the direction of his right back pocket. Officer Eubanks asked Mr. Orick if he had any weapons, and Mr. Orick responded that he did. Officer Eubanks then ordered Mr. Orick to put his hands on the car, and he removed a gun from Mr. Orick's pocket.

After removing the gun, Officer Eubanks attempted to handcuff Mr. Orick, but he resisted and a struggle ensued. With the help of other officers who had arrived on the scene, Mr. Orick was handcuffed and arrested. However, prior to that time Mr. Orick was able to pull something out of his pocket and throw it against the house. The item was recovered by the police, and was a rectangular black box containing portable scales that tested positive for methamphetamine residue. The box also contained a bag with 11.5 grams of an off-white powdery substance that tested positive for methamphetamine.

Detective Ken Jackson participated in the investigation and stated that the substance was fifty-two percent methamphetamine, which is in the "normal range." He stated that the average dose of methamphetamine is about a quarter of a gram. In terms of mere possession of methamphetamine, Detective Jackson stated, "I do not see over eleven grams very often because a possessor who is possessing for his own use usually only has a quarter of a gram at a time."

Mr. Orick testified on his own behalf, and he stated that he had recently purchased the methamphetamine for his own use. He stated that he weighed the methamphetamine and that the cost was $700. He stated that he had credit and anticipated paying the dealer later. Mr. Orick maintained that he did not intend to resell any of the methamphetamine. He explained that he uses the scales to make sure that he is getting the right amount, and that he buys in bulk because it is cheaper. Mr. Orick testified that he shoots a half-gram to three-quarters of a gram at one time, that he will do this three or four times a day, and that he can use 11.5 grams of methamphetamine in one or two weeks.

On cross-examination, Mr. Orick testified that he actually paid only $500 for the methamphetamine. He explained that when he previously testified that he paid $700 he was thinking of the street value.

Mr. Orick contends on appeal that there was no substantial evidence of his intent to deliver the methamphetamine. He cites Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998), where the supreme court held that while circumstantial evidence may constitute sufficient evidence to sustain a conviction, it is the duty of the appellate court to set aside a judgment based upon evidence that did not meet the required standards and left the fact finder only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gave rise to a suspicion of guilt. Mr. Orick argues that the State presented no evidence to indicate that he intended to sell the methamphetamine, and that it was equally reasonable to conclude that it was possessed for personal use only. Mr. Orick asserts that he has a long-term drug habit, and that it was reasonable to conclude that he used the scales only to ensure that the weight of his purchase was accurate, and that while he intended to use the methamphetamine he did not intend to sell it.

A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Given the circumstances of this case, there was substantial evidence to support the jury's finding that Mr. Orick intended to deliver the methamphetamine.

Pursuant to Arkansas Code Annotated section 5-64-401(d) (Repl. 1997), possession of 200 milligrams of methamphetamine gives rise to a presumption of intent to deliver. In Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996), Mr. Owens challenged the jury's finding of his intent to deliver methamphetamine, and in rejecting his argument, the supreme court stated:

We need look no further than the amount of the drug recovered from the Owens residence. In executing the search warrant, officers seized over 1,500 milligrams of unadulterated methamphetamine.... The jury was instructed that they could consider the quantity of the drug possessed in determining Owens's intent. Since Owens possessed methamphetamine in an amount in excess of the statutory presumption, the evidence is sufficient to support his conviction.

325 Ark. at 116, 926 S.W.2d at 653.

In the case at bar, the evidence showed that Mr. Orick possessed more than fifty-seven times the amount of methamphetamine necessary to give rise to the statutory presumption, and this fact alone supports his conviction. Moreover, evidence of Mr. Orick's possession of a firearm was relevant to prove his intent to deliver. See Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Finally, his possession of scales was further evidence of his intent to deliver, see Ramey v. State, 42 Ark. App. 242, 857 S.W.2d 828 (1993), particularly when the scales were found to contain methamphetamine residue.

In his argument for reversal, Mr. Orick relies on his own testimony. However, the jury did not believe his testimony and was not required to do so. See Winbush v. State, supra. Viewing the evidence in the light most favorable to the State, we hold that the jury was not left to speculate between two equally reasonable conclusions, and that substantial evidence supports its finding that Mr. Orick was guilty of possession of methamphetamine with intent to deliver.

Affirmed.

Gladwin and Neal, JJ., agree.