Crossno v. State

Lawson Cloninger, Judge.

Appellant raises two points for reversal of his conviction on charges of possession of marijuana with intent to deliver and delivery of marijuana. We find no merit in his arguments, and we accordingly affirm the judgment of the lower court.

Testimony at appellant’s trial disclosed that after an undercover police officer purchased marijuana from appellant, police obtained a search warrant and seized more marijuana from appellant’s residence. A chemist from the State Crime Lab testified that he analyzed the contents of four bags out of nine submitted by the Fori Smith police department and determined that the vegetable matter within was marijuana. Over appellant’s objection, all the bags taken from his house were introduced into evidence. Appellant, testifying in his own behalf, admitted possessing and selling the marijuana. The jury found him guilty under Ark. Stat. Ann. § 82-2617(a) (Supp. 1983) of two separate offenses (mentioned above) and sentenced him to four years imprisonment. Following the jury’s recommendation, the judge suspended three of the four years.

In his first argument, appellant contends that his verdict and sentence was illegal and excessive as the statute under which he was charged does not specify that possession with intent to deliver and delivery of marijuana is a felony. Marijuana is classified as a Schedule VI controlled substance under Ark. Stat. Ann. § 82-2614.2 (Supp. 1983). While the manufacture, delivery, or possession with intent to manufacture or deliver controlled substances listed in Schedules I-V entails upon conviction class Y, B, or C felony liability, prison terms and fines are graded according to the amount of Schedule VI controlled substances involved under § 82-2617, and no single class of felony is indicated. According to appellant, who cites Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972), the absence of a felony classification automatically reduces the offenses of which he was convicted to misdemeanors.

Appellant failed to address this issue at trial. The same argument was made under the same circumstances in Toland v. State, 285 Ark. 415, 688 S.W.2d 718(1985). There, the Supreme Court said, “We do not find in the abstract or record that this argument was presented to the trial court. Therefore, it cannot be raised for the first time on appeal.”

Although appellant acknowledges that this point was not argued at the trial level, he contends that under White v. State, 260 Ark. 361, 538 S.W.2d 550 (1976), the error is jurisdictional and, in the words of that case, “can be raised at any time, even after a guilty plea, by certiorari.” We would note, however, that appellant has raised the matter on direct appeal rather than by certiorari.

Moreover, the Arkansas Supreme Court, in Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985), dismissed Harrod’s reliance on White in the following language:

[I]n oral argument appellant conceded the trial court would be without subject matter jurisdiction only if the offenses were neither felonies nor misdemeanors, and while we do not decide the felony issue, we reject the argument that these offenses are neither. It follows the appellant should have preserved the point for appellate review by first presenting it to the trial court. Wickes v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Appellant in the instant case has not argued that the offense of which he was convicted is neither a felony nor a misdemeanor. Rather, he contends that the trial court exceeded the bounds of its authority in imposing a felony sentence for what he insists is a misdemeanor. On the basis of both Toland, supra, and Harrod, supra, we must reject his argument because it was not preserved for appeal.

Appellant’s second point for reversal is that the trial court erred in allowing into evidence the bags that had not been tested by the Crime Lab’s chemist. He asserts that the untested substances were irrelevant evidence under URE Rule 401, or, in the alternative, prejudicial, confusing, and misleading under URE 403. The bags sent to the Crime Lab, however, were all seized at the same place and the same time. Defense counsel did not object to the chain of custody, and nothing in the record suggests that anyone substituted something other than marijuana in the untested bags. Hence, the trial judge could conclude from the representative sampling and testing that the remaining bags also consisted of marijuana. See Mullins v. State, 277 Ark. 93, 639 S.W.2d 594 (1982). The evidence was therefore admissible.

Affirmed.

Mayfield, J., concurs.