Page:Jones v. State, 357 Ark. 545 (2004).pdf/17

Rh however, makes it abundantly clear that she could only testify that there "was some" methamphetamine and that the total substance could be measured. Nothing in Ms. Moran's testimony can be construed as evidence that the substance seized could be put to "any effective use." See Harbison v. State, 302 Ark. at 321, 790 S.W.2d at 150. Our standard established in Harbison requires the State to prove more than an "identifiable" or "measurable and testable" amount; rather, the State must show the amount to be "usable."

The majority citation to Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990), is inapposite. In that case, the defendant challenged the sufficiency of the evidence to support his conviction for possession of a controlled substance arguing that the State failed to show he possessed a "useable amount." Id. We held that the defendant failed to properly preserve the specific objection by only making a general motion for a directed verdict. Id. Nonetheless, we indicated that a vial containing 100 milligrams of methamphetamine would have been "sufficient to overcome a general motion for directed verdict as made by the defendant." Id. at 266, 801 S.W.2d at 643 (emphasis added). In this case, however, Mr. Jones specifically argued in his motion for directed verdict that the State failed to prove the substance seized was a "useable amount." In any event, finding 2.6 milligrams of methamphetamine from the residue in five different baggies is not analogous to finding 100 milligrams of methamphetamine in a vial.

Likewise, the majority's reliance on Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994), is misplaced. In that case, the defendant was charged with possession of a controlled substance with intent to deliver, not mere possession. Id. This court has never applied the "usable amount" standard to possession with intent to deliver cases. Indeed, the court has recognized that based on the specific statutory language, only a specified "measurable amount" of controlled substance is necessary to infer an intent to deliver. Id.; Ark. Code Ann. § 5-64-401(a)(1) (Supp. 2003) (defining the presumption by "aggregate weight"). Despite our holding in Harbison, supra, over a decade ago, the General Assembly has not amended the statutory language in Ark. Code Ann. § 5-64-401(c) to employ a weight-based standard.

In addition, this court has held that the prosecutor's failure to introduce evidence of a usable amount did not preclude a conviction for possession with intent to deliver in view of a trafficking scheme observed by police detectives. See Conley v. State, 308 Ark. 70, 821 S.W.2d 783 (1992). Indeed, the Arizona