Page:Jones v. State, 357 Ark. 545 (2004).pdf/18

562 courts have similarly distinguished between possession of a controlled substance and sale of a controlled substance. See State v. Ballinger, 110 Ariz. 422, 520 P.2d 294 (1974). Based on inapposite cases, the majority implants a weight-based standard into Ark. Code Ann. § 5-64-401(c) where none exists.

The Urias case, where the Arizona court reversed a conviction for possession, is indistinguishable from the case at bar. There, the State presented evidence showing that there was approximately 533 milligrams and 582 milligrams of a substance containing 18% heroin by chemical analysis. However, there was no testimony concerning the usability of the narcotic. State v. Urias, supra. The court explained that a little over 1,000 milligrams of which 18% was heroin by analysis was such a small amount as not to be within the realm of an uninformed layman's knowledge of its usability. State v. Urias, supra. Here, we have less narcotic than that which was at issue in Urias; there was less than 1,000 milligrams of which not more than .3% was methamphetamine by chemical analysis. In addition, like the prosecution in Urias, the State in this case provided no evidence of usability.

In order to effectuate the intent of the General Assembly in criminalizing possession of a controlled substance, that is, preventing the use of or trafficking in drugs, the State must provide some evidence of the drug's usability. Otherwise, a person possessing a pound of ordinary cooking flour containing any indication of methamphetamine would be guilty of possession of a controlled substance. Such a holding eviscerates our holding in Harbison and borders on a strict liability standard.

In my opinion, where the amount of narcotics involved is so small as not to be within the realm of an uninformed layman's knowledge of usability, there must be evidence presented by the State as to its "usability." See State v. Quinones, 105 Ariz. 380, 465 P.2d 360 (1970). The State provided no such evidence in this case.

G, J., and C, J., join.