Gregory v. State, CA
| Decision Date | 11 March 1992 |
| Docket Number | No. CA,CA |
| Citation | 37 Ark.App. 135,825 S.W.2d 269 |
| Parties | Bronston GREGORY, Appellant, v. STATE of Arkansas, Appellee. CR 91-18. |
| Court | Arkansas Court of Appeals |
Llwellyn J. Marczuk Dep. Public Defender, Little Rock, for appellant.
Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was convicted in a bench trial of delivery of a controlled substance, crack cocaine, and fleeing. He contends that there is no substantial evidence to support the delivery conviction because the state failed to prove that he sold a useable amount of cocaine. We affirm.
A narcotics detective with the Little Rock Police Department testified that on May 22, 1990, she gave appellant forty dollars for two white rock substances appellant presented as cocaine. The detective further testified that on June 5, 1990, she made two separate purchases from appellant, both times purchasing a white rock substance she was told to be cocaine.
Nick Dawson, a drug chemist with the Arkansas State Crime Laboratory, testified that the evidence obtained from the detective's May 22 purchase tested positive for cocaine. He stated that the two rocks were a measurable amount, weighing 159 milligrams, and that based on his training and experience as a chemist, he believed the cocaine was a useable amount. Gene Bangs, another chemist with the state crime lab, testified that he examined evidence obtained from the detective's June 5, 1990, purchases and found that each rock-like substance tested positive for cocaine base, each was a measurable amount, the first weighing 83 milligrams and the second 68 milligrams, and that based on his training and experience, he believed each was a useable amount. In response to a question during cross-examination, Bangs stated that since he is not a pharmacologist, he could not testify as to the effect that amount of cocaine would have on the human body.
When the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the appellee, and affirm if there is any substantial evidence to support the verdict. Brown v. State, 35 Ark.App. 156, 814 S.W.2d 918 (1991). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other, forcing or inducing the mind to pass beyond a suspicion or conjecture. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).
Appellant contends that Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), requires that the state prove in all drug cases that the amount of the controlled substance seized is a useable amount. Appellant further contends that since the chemists are not pharmacologists they were not qualified to give an opinion as to whether or not there was a useable amount, and thus it was error for the trial court to allow their testimony on this issue.
Contrary to appellant's position, Harbison does not require that the state prove that a useable amount of a controlled substance was delivered in order to sustain a conviction for delivery. Useable amount is a factor to be considered where the accused is charged with possession of a controlled substance. See Harbison, 302 Ark. 315, 790 S.W.2d 146; Conley v. State, 308...
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Kellogg v. State, CA
...(1987). We have held that the useable amount standard announced in Harbison has no application to cases of delivery. Gregory v. State, 37 Ark.App. 135, 825 S.W.2d 269 (1992). In Harbison, the court was influenced by decisions from other jurisdictions. One of those decisions was State v. Mor......
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Ficklin v. State
...a usable amount. The State responds that the "usable" amount requirement is inapplicable to delivery cases. See Gregory v. State, 37 Ark.App. 135, 825 S.W.2d 269 (1992). Neither argument directly addresses the circumstances of this case. Appellant's emphasis on the weight of the contraband ......