Dixon v. State

• Decision Date: 10 January 1977
• Docket Number: No. CR76--164,CR76--164
• Citation: Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (Ark. 1977)
• Parties: Roy Lee DIXON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 606

545 S.W.2d 606

260 Ark. 857

Roy Lee DIXON, Appellant, v. STATE of Arkansas, Appellee.

No. CR76--164.

Supreme Court of Arkansas, In Banc.

Jan. 10, 1977.

Kenneth Coffelt, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

At a bifurcated trial the jury first found the appellant, Roy Lee Dixon, guilty of possession of heroin with intent to deliver, as charged. The jury then found Dixon to be a habitual criminal, with three previous felony convictions, and imposed a 40-year sentence. The principal question is whether there is sufficient evidence to support the finding that Dixon intended to deliver the heroin that was found in his possession.

The witness Andol testified that after having pleaded guilty to a drug charge he volunteered to assist undercover officers in making a purchase of heroin from Roy Lee White (not the same person as the appellant, Roy Lee Dixon), who was apparently known to Andol as a seller of drugs. Andol supplied White's telephone number of an officer, who dialed the number with Andol listening in on an extension. When a woman answered, Andol asked to speak to Roy Lee White. Over a defense objection that no foundation had been laid, Andol testified that Roy Lee White came to the phone. Andol arranged for White to bring two $20 bags of heroin to Andol's motel room at a certain time later in the day.

Andol waited in the motel room, with two officers concealed in the bathroom and a third one stationed outside. White arrived in his car, accompanied by Dixon, whom Andol had never seen before. White and Dixon entered Andol's room together. White handed two foil packets to Andol, assuring him that it was good 'skag,' a slang term for heroin. The two officers then stepped from the bathroom, identified themselves, and placed White and Dixon under arrest.

White submitted, but Dixon ran out the door. The third officer subdued him and brought him back into the room. The officers searched Dixon, finding in his pocket a small match-box containing six tinfoil packets. White asserted that the two packets which he had delivered contained brown sugar, a claim that was verified by chemical analysis. Dixon's six packets, however, were found to contain 561 milligrams of a substance that was 5.5% pure heroin. The chemist considered that to be an average percentage for (illegal) heroin.

Upon the issue of intent to deliver we must at the outset lay aside the rebuttable presumption that arises from the possession of more than 100 milligrams of heroin. Ark.Stat.Ann. § 82--2617(d) (Supp.1975). The statute refers merely to 100 milligrams of "heroin.' Does that mean pure heroin, of which Dixon possessed only 30.855 milligrams, or an adulteration, of which Dixon possessed 561 milligrams?

We must conclude from the statute as a whole that the reference is to pure heroin. In several instances the statute refers to any material, compound, mixture, or preparation that contains 'any quantity' of specified prohibited substances (or uses similar language). Four such instances in the statute are § 82--2605(d), § 82--2609(b), § 82--2609(c)(1), and § 82--2611(b). On the other hand, the rebuttable presumption of an intent to deliver heroin arises only from the possession of more than 100 milligrams of 'heroin.' Inasmuch as the draftsmen of this Uniform Act took pains to prohibit traffic in many specified drugs in an adulterated form, we must infer that the omission of similar language with reference to heroin was deliberately selected to exclude such adulterations.

Absent the statutory presumption, we find no basis except speculation for a conclusion that Dixon possessed the small packets of adulterated heroin with the requisite intent to deliver. The telephone call was to White, who arrived with the stipulated two packets of some substance (actually brown sugar) that had been ordered. If the State were contending that Dixon was an accomplice, under the circumstances, in the delivery of the brown sugar, its contention might be supported by our holding in Hartman v. State, 258 Ark. 1018, 530 S.W.2d 366 (1975). But that is not what the State argues. Instead, it is contended that Dixon, although he uttered not one word from the time he entered the motel room until he was apprehended after his flight, brought six packets of heroin to the motel with the intention of selling two of them to Andol. It may be that such a transaction would eventually have been proposed if the purchasers had somehow discovered that they were being offered brown sugar and had demanded genuine skag. But the officers foreclosed that speculative possibility by emerging from concealment and making the arrests. We are compelled to rule that the proof is insufficient to show that Dixon possessed the heroin with the required intent to deliver.

The appellant next contends that the search of Dixon's person was illegal, because he was not advised of his 'constitutional rights.' Apparently the reference is to a Miranda warning, which the officers asserted they gave before the search. That warning, however, has to do with the right of a suspected person to remain silent. It is not essential to a search. Here the search was proper as an incident to what we hold to have been a lawful arrest, in view of Dixon's having arrived with White and having fled when the officers appeared. See Graves v. State, 256 Ark. 117, 505 S.W.2d 748 (1974).

The appellant also states as points for reversal, without any citation of authority and actually without any real argument, that proof of the telephone conversation was not admissible and that the sentence is excessive. In effect the court is asked to research the law and to hold in favor of the appellant if...