Glover v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HAYS; PURTLE
• Citation: Glover v. State, 619 S.W.2d 629, 273 Ark. 376 (Ark. 1981)
• Decision Date: 13 July 1981
• Docket Number: No. CR,CR
• Parties: Michael Edward GLOVER, Appellant, v. STATE of Arkansas, Appellee. 81-58.

Page 629

619 S.W.2d 629

273 Ark. 376

Michael Edward GLOVER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 81-58.

Supreme Court of Arkansas.

July 13, 1981.

Rehearing Denied Sept. 14, 1981.

William H. Craig, North Little Rock, for appellant.

Steve Clark, Atty. Gen. by Jack W. Dickerson, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

By this appeal, appellant urges that we hold as a matter of law that possession is not a lesser included offense to delivery of a controlled substance. We decline to make that holding.

Michael Glover was charged with delivery of heroin in violation of Act 590 of 1971, as amended. He was convicted and sentenced to 30 years in prison. A motion for a new trial was granted on undisclosed grounds. At the second trial the State offered the testimony of Rick Finley, an undercover policeman, and Howard Carrithers, a go-between, that they had gone to a Little Rock residence to buy drugs from Glover, whom Carrithers knew. Glover and several other people were there, including Glover's girl friend, Paula, and her 15 year old sister, Lori. Carrithers introduced Finley as a prospective buyer, wanting two "papers" of heroin at $20.00 each. Glover said he would have to get it and he and Paula left for about 30 minutes. When they returned, Glover motioned for Carrithers to follow him into a hallway out of Finley's sight, where Glover delivered two packets of heroin, explaining that he did not want to deal directly with a stranger. In Glover's presence Carrithers handed the two packets to Finley, who said he needed only one and tried to hand the extra packet to Glover, who declined it. Finley asked if it were all right to put it on the table and Glover answered, "yes." Finley then held out a $20.00 dollar bill in payment which Glover did not accept and after a moment's lapse Lori took the bill from Finley. As they were leaving, Glover warned Finley not to burn the heroin.

When the State rested, the defense moved for a directed verdict of acquittal, there being no proof that anything of value had passed to Glover. The trial court granted the motion with respect to the charge of delivery but held that possession was included in the offense of delivery and submitted the case to the jury on the offense of possession. The jury return a verdict of guilty and fixed punishment at two years in the Department of Correction. For reversal, Glover contends that possession is not included in delivery. We affirm the judgment of the trial court.

Before turning to the point argued, so as to avoid any mistaken inferences of this opinion with respect to the crime of delivery in Act 590, we disagree with the trial judge that the evidence presented by the State was insufficient to support a conviction on the charge of delivery that issue should have been submitted to the jury. Delivery is defined in Act 590 as the transfer from one person to another of a controlled substance "in exchange for money or anything of value." Since direct proof was wanting that the money was paid to Glover, the trial court determined that there was a failure of essential evidence. But from the circumstances as a whole, the jury could have inferred quite plausibly that there was an unlawful exchange of heroin for money, even though the money was not immediately delivered to Glover. Glover and Finley were strangers to each other, so there was no suggestion of a gift; their preliminary discussions clearly contemplated a sale of heroin for the sum of $20.00 no other conclusion is possible under the proof. Most significantly, the money itself remained in the house when Finley left with no attempt by Glover to disavow the sale. Whether Glover permitted Lori to keep the money or later claimed it for himself does not defeat the obvious nature of this transaction as constituting a transfer of heroin in exchange for money and it was a mistake for that issue not to have been submitted to the jury.

Returning to the argument that the court erred in treating possession as included in the offense of delivery, we find no error. In effect the trial court simply reduced a more serious offense under Act 590, delivery of heroin, to the less serious offense of possession, also prohibited under the Act (Article IV, § 1(c)), which the evidence fully sustained, and submitted that issue to the jury.

Neither brief cites any direct authority for the proposition that one may deliver a controlled substance without having possession of it and our own research has uncovered nothing plainly in point. Appellant cites Ark.Stat.Ann. § 41-105(2) which defines an "included offense" as one which is established by proof of the same or less than all the elements required to establish the commission of the offense charged. This definition derives from dictum in Gaskin v. State, 244 Ark. 541, 426 S.W.2d 407 (1968), quoting the Supreme Court of Indiana in the case of Beck v. State, 238 Ind. 210, 149 N.E.2d 695 (1958):

To be an included offense, all the elements of the lesser offense must be contained in the greater offense, the greater containing certain elements not contained in the lesser.

Building on this language, the appellant reasons that if there is any possible situation or set of facts which would support a delivery without "actual dominion, control or management," then possession would not be included in the charge of delivery even though the evidence produced at trial might show such actual dominion, control or management. (Citing Caton and Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972).) Possession, while not defined in Act 590, is defined in Ark.Stat.Ann. § 41-115 (Repl.1977) as exercising "actual dominion, control or management" of something. If we had no more than this, it would lead to the conclusion that a narrow concept of possession is not intended. Dominion implies wide latitude and is defined as including even the "right to possession." (Webster's New International Dictionary, 2d Ed.) Nor does the word "actual" reduce the usage to one of literal or physical possession. This view is consistent with the case of Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), holding that actual, physical possession is not required, but that "constructive possession of a controlled substance means knowledge of its presence and control over it." Citing People v. Williams, 5 Cal.3d 211, 95 Cal.Rptr. 530, 485 P.2d 1146 (1971), the opinion...