{ "id": 5405319, "name": "Curtis JACKSON v. STATE of Arkansas", "name_abbreviation": "Jackson v. State", "decision_date": "2004-05-05", "docket_number": "CA CR 03-702", "first_page": "145", "last_page": "154", "citations": [ { "type": "official", "cite": "86 Ark. App. 145" }, { "type": "parallel", "cite": "165 S.W.3d 467" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 5-64-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "318 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455811 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0499-01" ] }, { "cite": "322 Ark. 543", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447486 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "the trial court followed the traditional format in criminal cases, where the State has the burden of proof" }, { "parenthetical": "the trial court followed the traditional format in criminal cases, where the State has the burden of proof" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0543-01" ] }, { "cite": "74 Ark. App. 206", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140039 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "in our system the government has the burden of proof; when one is accused of a crime, what is on trial is the government's proof against the accused" }, { "parenthetical": "in our system the government has the burden of proof; when one is accused of a crime, what is on trial is the government's proof against the accused" } ], "opinion_index": 0, "case_paths": [ "/ark-app/74/0206-01" ] }, { "cite": "65 Ark. App. 186", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139416 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/65/0186-01" ] }, { "cite": "21 U.S.C. \u00a7 352", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "82 Ark. App. 210", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140023 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0210-01" ] }, { "cite": "107 S.W.3d 882", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6141714 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0365-01" ] }, { "cite": "82 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529002 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/82/0365-01" ] }, { "cite": "353 Ark. 372", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155533 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0372-01" ] }, { "cite": "80 Ark. App. 137", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138463 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/80/0137-01" ] }, { "cite": "352 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159688 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0092-01" ] }, { "cite": "81 Ark. App. 419", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142666 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/81/0419-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-64-401", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-64-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(e)" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 5-64-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "pin_cites": [ { "parenthetical": "e" }, { "parenthetical": "e" }, { "page": "(e)" } ], "opinion_index": 2 }, { "cite": "21 U.S.C. \u00a7 352", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 5-64-401", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 2 } ], "analysis": { "cardinality": 693, "char_count": 17847, "ocr_confidence": 0.788, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1590501994517827 }, "sha256": "eeb12601542600c1f50257e9614c1a0823cc286147b018076e2200a94611f761", "simhash": "1:5f7d57972d8ef0c6", "word_count": 2917 }, "last_updated": "2023-07-14T19:35:50.829950+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bird and Roaf, JJ., agree.", "Robbins, J., concurs.", "Pittman and Vaught, JJ., dissent." ], "parties": [ "Curtis JACKSON v. STATE of Arkansas" ], "opinions": [ { "text": "Olly Neal, Judge.\nIn this appeal from the Saline County udge. appellant challenges the sufficiency of the evidence used to support a conviction for possession of a counterfeit substance with the intent to deliver under Ark. Code Ann. \u00a7 5-64-401 (Repl. 1997), and the court\u2019s failure to give a proffered instruction recommended by appellant. Because we hold that there was insufficient evidence to convict appellant of possession of a counterfeit substance with the intent to deliver, we reverse.\nDetective Michael Hardester of the Saline County Sheriffs Office testified that, on January 9, 2002, he was investigating reports of illicit drug trafficking in the Little Rock area of West Baseline Road and Margo Lane. Hardester said that he and another officer, Detective Kevin Cooper, were in an undercover car and in plainclothes when they observed appellant standing on a street corner. Hardester rolled down the window on his truck and appellant approached the vehicle, leaned in, and asked what they needed. Hardester said that he told appellant he needed a \u201c20 rock.\u201d Appellant instructed them to drive down the road, turn around, and return. The officers complied, and when they returned, other people were in the area \u2014 one individual even standing pretty close to the vehicle. Appellant gave Hardester the rock of cocaine, and Hardester paid appellant twenty dollars.\nHardester testified that, because other people were present, he and Cooper decided not to arrest appellant immediately, but decided to call in help since they would be outnumbered. Hard-ester saw appellant walking down the street and approached him, stating that he wanted to buy more cocaine. In response, Hardester testified that appellant \u201cstuck his right hand in his right front pocket of his jeans and we placed him in custody.\u201d By that time, backup had arrived, and appellant was searched. They found several \u201csmall rock-like substances\u201d in appellant\u2019s pocket.\nDetective Cooper corroborated Detective Hardester\u2019s testimony by testifying that they pulled up on Margo Lane by appellant and that:\nI stepped out of the passenger side and said I needed two more. Detective Hardester had gotten out of the front and had walked around behind the defendant. The defendant stuck his hand in his right front pocket and at that time we placed him under arrest.\nA drug chemist from the crime lab testified that the rock-like substances Hardester purchased were cocaine-based and weighed .084 grams. The other substance weighed 1.365 grams, but no controlled substances were detected in it.\nFollowing trial, appellant was convicted of one count of delivery of a controlled substance and one count of possession of a counterfeit substance with the intent to deliver. It is from appellant\u2019s conviction for the latter count that he appeals. On appeal, appellant argues first that the evidence used to support a conviction for possession of a counterfeit substance with the intent to deliver was insufficient. We agree.\nDirected-verdict motions are treated as challenges to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Evidence is viewed in the light most favorable to the State; only evidence that supports a verdict is considered. Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2002). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Saulsberry v. State, supra. Decisions regarding the credibility of 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\u2019s 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. 365, 107 S.W.3d 882 (2003). We do not weigh the evidence presented at trial nor do we weigh the credibility of the witnesses. Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003).\nUnder Arkansas Code Annotated section 5-64-401 (b) (Repl. 1997), \u201cit is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance.\u201d Arkansas Code Annotated section 5-64-101 (Repl. 1997) defines a counterfeit substance and the proof required to make out a prima facie case for qualifying a noncontrolled substance as a counterfeit substance as follows:\n(e) The term \u201ccounterfeit substance\u201d means a noncontrolled substance, which by overall dosage unit appearance (including color, shape, size, markings, packaging, labeling, and overall appearance) or upon the basis of representations made to the recipient, purports to be a controlled substance or to have the physical or psychological effect associated with a controlled substance;\nIn determining whether a substance is counterfeit, the following factors shall be utilized. A finding of any two (2) of these factors constitutes prima facie evidence that a substance is a \u201ccounterfeit substance\u201d:\n(1) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect;\n(2) The physical appearance of the finished product containing the noncontrolled substance is substantially the same as that of a specific controlled substance;\n(3) The noncontrolled substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance;\n(4) The noncontrolled substance is not labeled in accordance with 21 U.S.C. \u00a7 352 or \u00a7 353;\n(5) The person delivering, attempting to deliver, or causing delivery of the noncontrolled substance states or represents to the recipient that the noncontrolled substance may be resold at a price that substantially exceeds the value of the substance;\n(6) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;\n(7) Prior convictions, if any, of an owner, or anyone in control of the object under state or federal laws related to controlled substances or fraud[.]\nAccording to the above-referenced statutory sections, the offense of delivery of a counterfeit substance requires proof that the substance in question is a \u201cnoncontrolled substance.\u201d Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999).\nIn support of the conviction, the State points to the testimony of state crime lab chemist Kim Brown who testified that one of the substances she tested was a rock-like substance that did not contain a cocaine base. It also points to the substance\u2019s similar appearance to the cocaine that appellant had previously sold to the undercover officers; the fact that it came out of the same pocket; and the fact that they \u201cwere both referred to by the appellant as \u2018candy,\u2019 a common street name for rock cocaine.\u201d However, the State failed to prove any two of the above-cited factors.\nIn criminal cases, the State has the burden of proof. See Strickland v. State, 74 Ark. App. 206, 46 S.W.3d 554 (2001) (in our system the government has the burden of proof; when one is accused of a crime, what is on trial is the government\u2019s proof against the accused); Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995) (the trial court followed the traditional format in criminal cases, where the State has the burden of proof). Moreover, the basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. S.T. and C.B. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994). Criminal statutes must be strictly construed, and the State\u2019s failure to prove that the substance was a statutorily-defined counterfeit substance was fatal to appellant\u2019s criminal conviction. See Shaw v. State, supra.\nUnder Ark. Code Ann. \u00a7 5-64-101, two of seven factors must be present to constitute prima facie evidence that a substance is a \u201ccounterfeit substance.\u201d The only factor that the State proved was number two \u2014 the physical appearance of the finished product containing the noncontrolled substance was substantially the same as that of a specific controlled substance. The officers and the chemist testified to the rock-like appearance of the drugs found on appellant incident to his arrest, suggesting that its appearance was substantially the same as that of rock cocaine. Nevertheless, the State failed to prove any other factor.\nAdditionally, there is no evidence of attempted delivery. Detective Hardester testified that:\nThe defendant was [walking] up Margo Lane back towards the original corner where we made contact. After we stopped[,] [w]e had put our badges around our necks to identify us as police officers when we were about to make the arrest, and placed our guns on. We got out of the vehicle and engaged in conversation with the defendant, told him we needed two more, something to that effect. He stuck his right hand in his right front pocket of his jeans and we placed him in custody.... We displayed our badges and guns once the call was made to make the arrest. We put them on while we-were talking to the backup officers.\nFurther, Detective Cooper testified that:\nDetective Hardester drove to Margo and West Baseline to where the defendant was walking from Margo, we pulled into Margo Lane, and he\u2019s walking towards me. I get out of the vehicle. At that time, I\u2019ve got my badge displayed and a gun on my side. I step out of the passenger side and said I need two more. Detective Hardester had gotten out of the front and had walked around behind the defendant. The defendant stuck his hand in his right front pocket and at that time, we placed him under arrest. When he put his hand in his right front pants pocket, that\u2019s when I made contact with him, and Detective Hardester got the other side of him, [and] we placed him on the ground and put handcuffs on him.\n* * *\nWhen I asked him for two more rocks, I had my badge and gun on. The badge was visible, but he probably couldn\u2019t see my gun.\nWhile appellant was on the ground, Cooper testified that appellant giggled and stated, \u201cA1 sold you candy.\u201d The State attempts to use this statement to prove factor one \u2014 statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect. However, appellant\u2019s statement refers to the sale of cocaine to the undercover officers. Appellant had not produced anything else to the officers for sale. Therefore, because (1) the State failed to prove two of the factors necessary to establish prima facie evidence that the substance was a \u201ccounterfeit substance;\u201d (2) the State failed to prove attempted delivery; and (3) penal statues are strictly construed, placing the burden of proof on the State, we reverse and dismiss appellant\u2019s conviction for possession with intent to deliver a counterfeit substance.\nBecause we reverse on appellant\u2019s first point, we need not reach his second point on appeal that the trial court erred in not giving his proffered instruction.\nBird and Roaf, JJ., agree.\nRobbins, J., concurs.\nPittman and Vaught, JJ., dissent.", "type": "majority", "author": "Olly Neal, Judge." }, { "text": "John B. Robbins, Judge,\nconcurring. I disagree with the majority\u2019s holding that, for the State to prove a substance is a \u201ccounterfeit substance,\u201d it must prove two of the factors listed in Ark. Code Ann. \u00a7 5-64-101(e) (Repl. 1997). While subsection (e) provides that a finding of two of the factors constitutes prima facie evidence that a substance is counterfeit, it does not provide the exclusive means for the State to prove its case. Based on the evidence presented, I would not reverse for lack of substantial evidence that appellant possessed a counterfeit substance.\nHowever, I agree with the majority\u2019s decision to reverse because there was not substantial evidence that appellant intended to deliver the counterfeit substance. The dissent concludes that this point is not being raised on appeal, but I disagree. In his statement of the case appellant indicates the basis of his appeal: \u201cThe appeal is based on the fact that there is no overt action by the defendant to attempt to deliver or indicate that the substance was a counterfeit controlled substance.\u201d In the argument section of his brief, appellant argues that the only evidence offered by the State was that upon his arrest he had his hand in his pocket, and that this evidence is insufficient to support his conviction. In my view, this argument is addressed to the lack of evidence regarding appellant\u2019s intent, and I agree with appellant\u2019s contention that there was insufficient evidence of his intent to deliver.", "type": "concurrence", "author": "John B. Robbins, Judge," }, { "text": "Larry D. Vaught, Judge,\ndissenting. While I agree with udge, majority opinion, I disagree with the determination that there was insufficient evidence to support the conviction. First, I disagree with the majority\u2019s interpretation of Ark. Code Ann. \u00a7 5-64-101 (e) as requiring proof of at least two factors in order to constitute prima facie evidence that a substance is a \u201ccounterfeit substance\u201d and would hold that there was substantial evidence that the substance in appellant\u2019s pocket was counterfeit. Second, appellant does not argue on appeal that there was insufficient evidence of delivery. Therefore, I would affirm.\nAs stated in the majority opinion, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance except as provided. Ark. Code Ann. \u00a7 5-64-401. \u201cCounterfeit substance\u201d is defined in Ark. Code Ann. \u00a7 5-64-101 (e) as \u201ca noncontrolled substance, which by overall dosage unit appearance (including color, shape, size, markings, packaging, labeling, and overall appearance) or upon the basis of representations made to the recipient, purports to be a controlled substance or to have the physical or psychological effect associated with a controlled substance.\u201d Subsection (e) further provides that \u201cIn determining whether a substance is counterfeit, the following factors shall be utilized. A finding of any two (2) of these factors constitutes prima facie evidence that a substance is a \u201ccounterfeit substance\u201d:\n(1) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect;\n(2) The physical appearance of the finished product containing the noncontrolled substance is substantially the same as that of a specific controlled substance;\n(3) The noncontrolled substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance;\n. (4) The noncontrolled substance is not labeled in accordance with 21 U.S.C. \u00a7 352 or \u00a7 353;\n(5) The person delivering, attempting to deliver, or causing delivery of the noncontrolled substance states or represents to the recipient that the noncontrolled substance may be resold at a price that substantially exceeds the value of the substance;\n(6) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;\n(7) Prior convictions, if any, of an owner, or anyone in control of the object under state or federal laws related to controlled substances or fraud[.]\nThe majority opinion states that \u201ctwo of the seven factors must be present to constitute prima facie evidence that a substance is a \u2018counterfeit substance\u2019 \u201d Subsection (e) does not so state. Rather, subsection (e) provides that the seven factors shall be considered in determining whether a substance is counterfeit and that a finding of any two constitutes prima facie evidence. The language of the statute does not indicate that the list is exclusive, and thus other facts of a similar nature can be used to show that a substance is \u201ccounterfeit.\u201d Based on this interpretation of subsection (e), I would conclude that there is substantial evidence that the substance at issue was \u201ccounterfeit.\u201d\nHere, appellant had previously sold a \u201c20 rock\u201d to Detectives Hardester and Cooper. A short time later, they asked appellant to supply two more rocks. Appellant then reached into his right front pocket, and he was arrested. A search of appellant revealed rocks in the right front pocket, which were very similar in appearance to crack cocaine. The rocks were tested at the State Crime Lab and determined to be a noncontrolled substance. Although appellant made no verbal representations at the time of the second encounter, appellant\u2019s actions in reaching into his pocket upon request for \u201ctwo more rocks,\u201d combined with the recent sale of a \u201c20 rock\u201d amounts to a representation that what he was reaching for in his pocket was a substance purporting to be a controlled substance. Viewing this evidence in the light most favorable to the State, I think that there was sufficient evidence to create a jury question.\nThe majority would also reverse based on insufficient evidence of delivery. Appellant only argues on appeal that there was insufficient evidence to find that the substance contained in appellant\u2019s pocket was a counterfeit substance, and more specifically that the State failed to prove any two of the necessary factors set out in Ark. Code Ann. \u00a7 5-64-101(e). While appellant raised the issue of delivery in his motion for directed verdict, he abandoned this argument on appeal. I am authorized to state that Judge Pittman joins this dissent.", "type": "dissent", "author": "Larry D. Vaught, Judge," } ], "attorneys": [ "Joe Kelly Hardin, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Curtis JACKSON v. STATE of Arkansas\nCA CR 03-702\n165 S.W.3d 467\nCourt of Appeals of Arkansas Divisions III and IV\nOpinion delivered May 5, 2004\nJoe Kelly Hardin, for appellant.\nMike Beebe, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0145-01", "first_page_order": 889, "last_page_order": 898 }