Kathleen Ann Porter a/k/a Kathleen Ann Kempf v. State of Arkansas
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PUBLISHED
ARKANSAS COURT OF APPEALS
D. P. MARSHALL JR., Judge
DIVISION II
CACR06-1114
30 May 2007
KATHLEEN ANN PORTER
a/k/a KATHLEEN ANN KEMPF,
APPELLANT
v.
STATE OF ARKANSAS,
APPELLEE
AN APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
[CR-04-558-2]
THE HONORABLE MICHAEL
MEDLOCK, CIRCUIT JUDGE
REVERSED and DISMISSED
Kathleen Porter appeals her conviction for possession of methamphetamine. This is a
residue case, and the question presented is whether the record contains sufficient evidence of
possession within the meaning of our statute as construed in Harbison v. State, 302 Ark. 315,
790 S.W.2d 146 (1990). It does not. Because the State offered no evidence that Porter
possessed a usable or measurable amount of the contraband, we reverse her conviction and
dismiss this case.
I.
We recite the facts of record in the light most favorable to the State. Baughman v.
State, 353 Ark. 1, 5, 110 S.W.3d 740, 742 (2003). After receiving information about drug
activity, two police detectives went to Porter’s duplex. She was there with her two young
children. The detectives questioned her. Porter got upset, said any “stuff” they were looking
for was gone, and eventually led the officers into a bedroom. She pulled a plastic bag out of
a shirt pocket and gave it to them. In the bag were three coin-type plastic bags that, as
described by one of the detectives, contained an “off white, kind of brownish powdery
substance on the inside[.]”
The State’s forensic chemist could not weigh the residue because it was stuck to the
insides of the small bags. There was no testimony that anyone could or did weigh the residue.
Instead, the chemist washed the residue out of all the bags with a methanol solution and tested
the resulting mixture. It tested positive for methamphetamine. Neither the chemist nor any
other witness testified that the bags contained a usable amount of this controlled substance.
At trial, Ms. Porter twice moved for a judgment of acquittal. She argued that no proof
existed that she possessed a usable amount of methamphetamine. The circuit court denied
both motions.
II.
Almost two decades ago, our supreme court interpreted our possession statute in
Harbison. Justice Newbern’s opinion for the court considered the words of Ark. Code Ann.
§ 5-64-401 (Repl. 2005) and its rationale, canvassed the relevant law in other states and the
scholarly literature on point, and laid down a clear and considered rule for residue cases such
as this one. That rule is:
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The intent of the legislation prohibiting possession of a controlled substance is
to prevent use of and trafficking in those substances. Possession of a trace
amount or residue which cannot be used and which the accused may not even
know is on his person or within his control contributes to neither evil.
302 Ark. at 322, 790 S.W.2d at 151.
Though it was not a unanimous decision, Harbison has stood the test of time. The
General Assembly has met several times in the intervening years and left the supreme court’s
construction of § 5-64-401 undisturbed. The construction has thus become as much a part of
the statute as the words in the code book. Morris v. McLemore, 313 Ark. 53, 55, 852 S.W.2d
135, 136 (1993).
In this case, the State proved that Porter possessed plastic bags containing an amount
of methamphetamine residue that could not be weighed. The State offered no evidence that
a usable amount of the contraband existed. “As a practical matter,” Porter possessed bags
“which had had [methamphetamine in them], and that is not a crime.” Harbison, 302 Ark. at
323, 790 S.W.2d at 151.
The State seeks to sustain Porter’s conviction based on Jones v. State, 357 Ark. 545,
182 S.W.3d 485 (2004), and Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993), both of
which rejected Harbison-based challenges. These precedents, however, are distinguishable.
In both cases, the jury heard evidence that the defendant possessed a measurable and usable
amount of contraband. Jones, 357 Ark. at 552 S54, 182 S.W.3d at 489 S 90; Sinks, 44 Ark.
App. at 3 S4; 864 S.W.2d at 880 S 81. This record contains no proof of either fact.
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Harbison means what it holds. Possession of a container with a trace amount or residue
of contraband that is neither measurable nor usable is not possession of a controlled substance
under Ark. Code Ann. § 5-64-401.
Reversed and dismissed.
V AUGHT and H EFFLEY, JJ., agree.
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