Whitener v. State, CR
| Decision Date | 21 December 1992 |
| Docket Number | No. CR,CR |
| Citation | 311 Ark. 377,843 S.W.2d 853 |
| Parties | Yvonne WHITENER, Appellant, v. STATE of Arkansas, Appellee. 92-556. |
| Court | Arkansas Supreme Court |
Paul Petty, Robert Meurer, Searcy, for appellant.
J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, Yvonne Whitener, raises three points for reversal of her six-year conviction for delivery of marijuana. None of the points has merit, and we affirm.
The circumstances of this case evolved out of an undercover drug operation where Whitener and undercover officer David Moore of the White County and Searcy Drug Task Force first met on July 11, 1991, at Moore's apartment. At that time, Moore received a sample bag of marijuana from Whitener. Later in the evening, he went to Whitener's house where, according to his testimony, she sold him a quarter-ounce bag of marijuana for $30. That sale formed the basis of a charge for delivery of marijuana filed against her.
At trial, following testimony, Whitener requested a jury instruction on the lesser included offense of possession of marijuana, but the circuit court denied the request, giving as its reason the fact that there was no rational basis for the instruction. The jury then found Whitener guilty of delivery of a controlled substance and sentenced her to six years imprisonment. At a subsequent hearing, Whitener's attorney urged the court to sentence his client under the Alternative Service Act, but the court refused.
Whitener first argues that the circuit court erred in not giving an instruction on possession of marijuana because the evidence at trial warranted an instruction on this lesser included offense. This court has held in the past that possession of a controlled substance is a lesser included offense of delivery of a controlled substance because one cannot deliver a controlled substance without exercising some degree of dominion, control, and management over it. See Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981), citing Ark.Code Ann. § 41-115(15) (Repl.1977), now codified as Ark.Code Ann. § 5-1-102(15) (1987); see also Hill v. State, 33 Ark.App. 135, 803 S.W.2d 935 (1991).
The circuit court in the case before us, while accepting that possession is an included offense, ruled that based on the proof presented, there was no rational basis for the possession instruction. In doing so, the court referred to the apposite statute:
(c) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
Ark.Code Ann. § 5-1-110(c) (1987). The charge and proof by the state were for the actual delivery of marijuana, and Whitener did not testify. A jury, conceivably, could have disregarded this proof, acquitted Whitener of delivery, and found her guilty of the less serious charge of possession, but any rational basis for such a verdict is not readily apparent. Where no rational basis is present, we have affirmed the circuit court's refusal to give the instruction. See, e.g., Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992). We cannot say that the circuit court erred in declining to instruct on mere possession.
We next turn to Whitener's contention that the circuit court was wrong not to consider probation or suspension under the Arkansas Criminal Code or the Uniform Controlled Substance Act. The argument is meritless. In 1991, the Arkansas General Assembly enacted Act 608 to eliminate confusion surrounding sentencing alternatives in drug-related cases under the Criminal Code and the UCSA. See Pennington v. State, 305 Ark. 507, 808 S.W.2d 780 (1991) (dictum). Act 608 amended two sections of the Criminal Code--Ark.Code Ann. §§ 5-4-104 and 5-4-301--with regard to what sentences are authorized under the Code and when suspension or probation may be appropriate. In each section, Act 608 added the following category to a list of crimes for which suspension or probation was not appropriate.
(F) drug related offenses under the Uniform Controlled Substances Act, except to the extent that probation is otherwise permitted under that act.
Act 608 then added to this subsection: "In other cases, the court may suspend imposition of sentence or place the defendant on probation, except as otherwise specifically prohibited...
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Brown v. State, CR
...lesser-included instructions and allowing Officer Marshall's testimony. We affirm. In her first argument, Brown cites Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), for the proposition that the offense of delivery of a controlled substance includes the lesser-included offense of po......
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Grillot v. State, CR01-00792.
...there was no rational basis for instruction on the lesser-included offense of possession requested by the appellant. Whitener v. State, 311 Ark. 377, 843 S.W.2d 853. Section 5-1-110 provides that the trial court is not obligated to instruct on a lesser-included offense unless there is a rat......
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Grillot v. State
...there was no rational basis for instruction on the lesser-included offense of possession requested by the appellant. Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992). Section 5-1-110 provides that the trial court is not obligated to instruct on a lesser-included offense unless there i......
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