Ark. Code Ann. § 5-64-436 (2020)
Possession of a Schedule VI controlled substance with the purpose to deliver
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Except as provided by this chapter, it is unlawful if a person possesses a Schedule VI controlled substance with the purpose to deliver the Schedule VI controlled substance. Purpose to deliver may be shown by any of the following factors:
- The person possesses the means to weigh and separate a Schedule VI controlled substance;
- The person possesses a record indicating a drug-related transaction;
- The Schedule VI controlled substance is separated and packaged in a manner to facilitate delivery;
- The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of the Schedule VI controlled substance;
- The person possesses at least two (2) other controlled substances in any amount; or
- Other relevant and admissible evidence that contributes to the proof that a person's purpose was to deliver a Schedule VI controlled substance.
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A person who violates this section upon conviction is guilty of a:
- Class A misdemeanor if the person possessed by aggregate weight, including an adulterant or diluent, fourteen grams (14g) or less of a Schedule VI controlled substance;
- Class D felony if the person possessed more than fourteen grams (14g) but less than four ounces (4 oz.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance;
- Class C felony if the person possessed four ounces (4 oz.) or more but less than twenty-five pounds (25 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance;
- Class B felony if the person possessed twenty-five pounds (25 lbs.) or more but less than one hundred pounds (100 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance; or
- Class A felony if the person possessed one hundred pounds (100 lbs.) or more but less than five hundred pounds (500 lbs.) by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance.
History. Acts 2011, No. 570, § 57.
A.C.R.C. Notes. Acts 2011, No. 570, § 1, provided: “The intent of this act is to implement comprehensive measures designed to reduce recidivism, hold offenders accountable, and contain correction costs.”
Research References
ALR.
What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Marijuana Offenses Under 8 U.S.C. § 1101(a)(43)(B). 76 A.L.R. Fed. 2d 1.
What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Miscellaneous or Unspecified Narcotics Offenses Under 8 U.S.C. § 1101(a)(43)(B). 79 A.L.R. Fed. 2d 335.
Case Notes
Constructive Possession.
The possession required by this section need not be actual, physical possession, but may be constructive, as when one controls a substance or has the right to control it. Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986) (decision under prior law).
Where there is joint occupancy of premises, mere occupancy is insufficient to prove possession unless there are additional factors linking the accused with the contraband. Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986) (decision under prior law).
Substantial evidence existed that defendant constructively possessed marijuana; the officer testified that there was an odor of marijuana coming from the vehicle in which defendant was riding and that defendant assumed a nervous and defensive posture when the officer spoke with defendant. Stewart v. State, 2010 Ark. App. 495 (2010) (decided under former § 5-64-401).
Sufficient evidence was presented to indicate that defendant knew there was contraband in the flatbed trailer he was towing, even though it was open to access from the general public, because defendant was the only person in the vehicle and more than 200 pounds of marijuana were found. Thus, there was sufficient evidence that he was in actual possession of the drugs. Barrera v. State, 2012 Ark. App. 533 (2012), overruled in part, Pokatilov v. State, 2017 Ark. 264, 526 S.W.3d 849 (2017) (decision under prior law).
For purposes of defendant's convictions, his absence at the time of the search did not eliminate a conclusion of constructive possession based on the fact that the drugs and firearm were found in a bedroom closet in close proximity, the bedroom was shared by defendant and another, defendant was at the house prior to the search, and he admitted purchasing the marijuana and possessing the firearm, which inferred more than mere knowledge of the contraband, but also ownership and control over them. Dotson v. State, 2013 Ark. App. 550 (2013).
There was sufficient evidence to support convictions for possession of marijuana with intent to deliver and the simultaneous possession of drugs and firearms based on drugs that were discovered behind a shed; defendant emerged from behind the shed, in close proximity to the drugs, there was no possibility that the drugs could have been tossed from a road, and the bag of drugs was clean and dry, despite the rain. Defendant began acting nervous and making spontaneous statements when it was obvious that officers were going to search behind the shed, defendant had a large amount of cash when he was arrested, and he admitted to having a gun. Block v. State, 2015 Ark. App. 83, 455 S.W.3d 336 (2015).
There was substantial evidence that defendant constructively possessed marijuana to support his conviction for possession of a controlled substance with intent to deliver and sentence of 12 years' imprisonment. The 34 bags of marijuana were found in a large compartment under the truck-bed liner in a truck that defendant was driving; defendant did not own the truck and there were two passengers in the truck. There was fresh glue holding the metal plate down to cover the hidden compartment where the drugs were found, and there were remnants of the fresh glue on the glue gun found inside the truck's cab. Also, the tools necessary to access the hidden compartment were in the truck. Lockheart-Singleton v. State, 2018 Ark. App. 307 (2018).
Delivery.
Where the state proved actual delivery there could be no question about the defendant's intent. Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979) (decision under prior law).
Because the marijuana had been separated into 34 packages, which would have facilitated delivery, there was substantial evidence that defendant intended to deliver the controlled substance. Lockheart-Singleton v. State, 2018 Ark. App. 307 (2018).
Participants to Transactions.
Where defendant was present with others during the sale of controlled substance, although he had no direct contact with the officers making the purchase, the trial court could reasonably infer that the defendant, being present, was an active participant in the offense. Hartman v. State, 258 Ark. 1018, 530 S.W.2d 366 (1975) (decision under prior law).