Page:Jones v. State, 357 Ark. 545 (2004).pdf/5

Rh class C felony. Appellant was sentenced as an habitual offender, pursuant to Ark. Code Ann. § 5-4-501 (Supp. 2003), to eight years on the methamphetamine-possession charge and ten years on the drug-paraphernalia charge. On appeal, he challenges the sufficiency of the evidence on the two convictions, and he argues that the trial court erred in the penalty phase by failing to give correct jury instructions on the imposition of a fine. We affirm the convictions and remand for resentencing on the issue of an erroneous jury instruction given during the penalty phase of the trial.

On June 5, 2003, Fort Smith police officers were advised to look for a red Chevrolet pickup truck with Oklahoma license tags because the driver was suspected of unauthorized use of a vehicle. Officer Jeff Carter saw the vehicle, but was unable to stop it because he was transporting a prisoner at the time. He radioed Officer Eric Williams and told him that there were three occupants in the truck: a black male driver, a white female seated in the middle, and a white male on the passenger's side.

Officer Williams testified that he stopped the vehicle at 4:00 p.m. that day and recognized appellant as the driver of the vehicle. When appellant got out of the truck, Officer Williams arrested him. While conducting a pat-down search, Officer Williams found a syringe in the right front pocket of appellant's pants. At trial, Detective Paul Smith, an expert witness for the State, testified that syringes are commonly used to inject methamphetamine.

Another officer arrived at the scene and took the other male occupant, Mark Evans, into custody while Officer Williams conducted a search of the truck. During the search, Officer Williams seized five plastic bags with white residue that were behind the driver's seat. Cindy Moran, a chemist with the State Crime Laboratory, testified that the plastic bags contained methamphetamine.

Appellant was charged by an amended felony information with the offenses of possession of methamphetamine and possession of drug paraphernalia. Neither appellant nor Evans admitted that they owned the plastic bags. Officer Williams testified that he did not see anyone put anything behind the seat. At trial following the State's case-in-chief, appellant moved for a directed verdict on the methamphetamine charge, arguing that there was insufficient evidence to prove that he was in constructive possession of the substance, or in the alternative, that there was no showing of a useable amount of methamphetamine