Carter v. State , 46 Ark. App. 205 ( 1994 )

John E. Jennings, Chief Judge.

Tau Carter and Marco Lamont Sanford were found guilty of possession of a controlled substance with intent to deliver. Carter was sentenced to ten years in the Arkansas Department of Correction; Sanford was sentenced to fifteen years imprisonment and a fine of $15,000.00. Their sole point on appeal is that the evidence was insufficient because the State did not present testimony concerning intent. We find no error and affirm.

In determining the sufficiency of the evidence we consider all of the evidence, including that which may have been erroneously admitted. Burkett v. State, 40 Ark. App. 150, 842 S.W.2d 857 (1992). We review the evidence in the light most favorable to the State and affirm if there is any substantial evidence to support the trial court’s judgment. Substantial evidence, whether direct or circumstantial, is evidence of such sufficient force and character that it will compel a conclusion one way or the other, without resorting to speculation or conjecture. Turner v. State, 24 Ark. App. 102, 749 S.W.2d 339 (1988). Intent, being a subjective matter, is ordinarily not susceptible of proof by direct evidence but usually must be established by circumstantial evidence. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

In the afternoon of September 1, 1992, a narcotics squad of the Little Rock Police Department went to 18th and Park Streets to investigate complaints of drug sales. Appellants Carter and Sanford were part of a group on the porch at 1722 South Park, described as a duplex or apartment with two front doors. As the uniformed officers approached the residence, Carter pulled a small white box out of his pocket and turned toward one of the doors. He did not obey Officer Anthony Brainard’s order to stop. Officer Brainard grabbed Carter and recovered the white dental floss container which Carter was placing in a mailbox just inside the door. Officer Robert Mourat retrieved a brown pill bottle and a clear Lifesavers tube which Sanford dropped into a mailbox outside the other door. The Lifesavers tube contained only a residue, but the pill bottle held twenty-eight rocks of crack cocaine.

The dental floss container held eight rocks of crack cocaine with a total weight of .87 grams. The weight of the twenty-eight rocks was 3.46 grams. In Arkansas possession of more than one gram of cocaine creates a rebuttable presumption that the person possesses it with intent to deliver. Ark. Code Ann. § 5-64-401(d) (Supp. 1991); Johnson v. State, 35 Ark. App. 143, 814 S.W.2d 915 (1991). Thus, the presumption of intent to deliver arose against Sanford and the jury was permitted to infer that he possessed 3.46 grams of cocaine with the intent to deliver it. We find that the evidence summarized above was sufficient to support his conviction.

The dental floss box which Carter took from his pocket held less than a gram of cocaine, so the statutory presumption of intent to deliver did not arise against him. Detective Austin Lynch testified that his work in the narcotics detail had included undercover buys as well as searches and seizures in crack houses. He testified that he had seen crack cocaine smoked in crack pipes. He said that typically only one rock would be smoked in a crack pipe unless the rocks were small, and that the eight rocks at issue were entirely too big to be placed in a crack pipe at one time. He stated that the street value of a single rock on September 1, 1992 was $20.00, and the eight rocks had an approximate value of $160.00.

The court qualified Detective Lynch as an expert witness for the limited subject of the suspected intent and use of narcotics. Detective Lynch stated that the number and total value of cocaine rocks affect his perception of how a person intends to use cocaine. Possession of one to three rocks would indicate to him possession for personal use. He testified'that Carter’s possession of the eight rocks here was “for the sole intent of selling it.” The admissibility of this opinion evidence is not an issue on appeal.

Though the amount possessed was not enough to give rise to our statutory presumption, the jury could find from Detective Lynch’s testimony that appellant possessed the drugs with intent to sell. The jury is the sole judge of the weight of the evidence and the credibility of the witness. AMI Crim. 104. Viewing the evidence in the light most favorable to the State, we conclude that there was substantial evidence to support appellant Carter’s conviction.

Affirmed.

Mayfield, J., dissents.