FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO.
60CV-17-1083] HONORABLE WENDELL GRIFFEN, JUDGE.
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE.
Lee Hunter Christian appeals his conviction by the Pulaski
County Circuit Court of the Class D felony of possession of
less than two grams of cocaine, a Schedule I controlled
substance, pursuant to Arkansas Code Annotated section
5-64-419(b)(1(A) (Repl. 2016). His only argument on appeal is
that the State failed to prove that he possessed a usable
amount of cocaine. We affirm.
stood trial on November 9, 2017, and he concedes on appeal
that the State proved beyond a reasonable doubt that he
possessed four milligrams of cocaine powder. At trial, the
court heard testimony that Christian was stopped by the
police on February 6, 2017, and was subsequently searched.
During the search of his person, one of the officers observed
Christian drop two plastic baggies from his hand. Brandon
Davis, a chemist employed by the Arkansas State Crime
Laboratory, testified that he tested the contents of the
baggies and determined that the baggies contained four
milligrams of cocaine. Davis further testified that the
cocaine powder was "measurable" and that he
"could weigh [it]." On cross-examination, Davis
testified that the small amount of cocaine at issue in this
case was "outside the recommended usage range of the
scale" he used to weigh it but reiterated that even such
a small amount of cocaine could be weighed. Christian's
attorney moved for dismissal at the close of the State's
case and again at the close of all the evidence, arguing that
the State failed to prove that Christian possessed a usable
amount of cocaine. The court denied both motions and
ultimately convicted Christian of possession of less than two
grams of cocaine. This timely appeal follows.
appeal, Christian challenges the sufficiency of the evidence
supporting his conviction for cocaine possession. See
Walker v. State, 77 Ark.App. 122, 124, 72 S.W.3d 517,
519 (2002) (a motion to dismiss for lack of evidence in a
bench trial is a challenge to the sufficiency of the
State's proof). Our test for determining the sufficiency
of the evidence is whether the verdict is supported by
substantial evidence, direct or circumstantial. Jones v.
State, 357 Ark. 545, 182 S.W.3d 485 (2004). Evidence is
substantial if it is of sufficient force and character to
compel reasonable minds to reach a conclusion and pass beyond
suspicion and conjecture. Wells v. State, 2017
Ark.App. 174, at 2, 518 S.W.3d 106, 108-09 (citing Haynes
v. State, 346 Ark. 388, 58 S.W.3d 336 (2001)). On
appeal, we view the evidence in the light most favorable to
the State, considering only that evidence that supports the
verdict. Id. at 2, 518 S.W.3d at 108-09 (citing
Williams v. State, 346 Ark. 304, 57 S.W.3d 706
relies heavily on the Arkansas Supreme Court's decision
in Harbison v. State, 302 Ark. 315, 790 S.W.2d 146
(1990), for the proposition that in order to prove that a
person illegally possessed a controlled substance, the State
must prove that the person possessed a "usable
amount" of the controlled substance. Christian argues
that the State failed to produce evidence establishing that
the four milligrams of cocaine that he possessed was a usable
amount pursuant to Harbison. He notes that no
witness testified that the amount was a "usable
amount" or that cocaine powder is commonly bought, sold,
or ingested in four-milligram doses.
Harbison, the appellant possessed a glass bottle
that contained the residue of a controlled substance. The
chemist who testified at Harbison's trial described the
residue as a "trace amount" that could not be
separated from its container and independently measured. The
key language in Harbison is that the amount of the
controlled substance must be "either (1) sufficient to
permit knowledge of its presence without the need for
scientific identification or (2) sufficient to be useable in
the manner in which such a substance is ordinarily
used." Harbison, 302 Ark. at 322, 790 S.W.2d at
150-51. In Sinks v. State, 44 Ark.App. 1, 864 S.W.2d
879 (1993), we explained that the Harbison holding
as requires proof that the controlled substance "must be
of measurable or usable amount to constitute a
violation." 44 Ark.App. at 4, 864 S.W.2d at 881. We
affirmed the appellant's conviction because, unlike in
Harbison, "there was clearly a measurable
amount of cocaine present." Id. The testimony
in Sinks demonstrated that the amount of cocaine
possessed by the defendant was "capable of quantitative
analysis, could be seen with the naked eye, was tangible, and
could be picked up." Id. We held that
"this evidence [was] sufficient for the fact finder to
determine that the substance was of a measurable
Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004),
the Arkansas Supreme Court held that 883.9 milligrams of
methamphetamine compound possessed by the appellant was a
usable amount. In Jones, the supreme court explained
that "[u]nlike the circumstances in Harbison,
supra, there was enough substance in the plastic
bags to weigh and to test." The supreme court further
explained in a footnote that,
We note that the usable-amount term, as promulgated by
Harbison, supra, does not stand for the
proposition that there must be a usable amount sufficient to
produce a chemically-induced behavioral, hallucinogenic, or
otherwise altered state. Additionally, other jurisdictions,
as well as the Arkansas Court of Appeals, have interpreted
the usable-amount standard to include weight-based standards.
See Sinks v. State, 44 Ark.App. 1, 864 S.W.2d 879
(1993) (holding that 0.024 grams of cocaine was usable
because the cocaine was capable of quantitative analysis,
could be seen with a naked eye, was tangible and could be
picked up, and was a clearly measurable amount that satisfied
the requirements of Harbison); Kent v.
State, 562 S.W.2d 855 (Tex. Cr. App. 1978) (citing
Tomlin v. State, 170 Tex. Crim. 108, 338 S.W.2d 735
(1960), which overruled the determination of insufficiency in
two cases cited in Harbison, supra, and holding that
the drug was quantitatively measurable).
Jones, 357 Ark. at 554 n.2, 182 S.W.3d at 490 n.2.
argues in his reply brief that Sinks was wrongly
decided and should be overturned. We decline to do so for two
reasons. First, we will not consider arguments raised for the
first time in appellant's reply brief because the
appellee is not given a chance to rebut the argument.
Lenard v. State, 2014 Ark. 478, at 7, 522 S.W.3d
118, 123. Second, because the Arkansas Supreme Court adopted
the "usable or measurable amount" standard
articulated in Sinks, as evidenced by its footnote
in Jones, we have no authority as an intermediate
appellate court to overrule that standard. "[I]t is well
established that this court is without authority to overrule
a decision of the supreme court." Brown v.
State, 63 Ark.App. 38, 44, 972 S.W.2d 956, 959 (1998).
also argues that the State failed to present sufficient
evidence that he possessed a measurable amount of cocaine
pursuant to Sinks because Brandon Davis testified
that four milligrams is below the recommended usage range for
the scale used to measure the cocaine. We disagree.
Davis, the forensic chemist who testified for the State,
described the substance as "white powder," meaning
that it was visible to the naked eye pursuant to
Sinks. He testified that he "put that amount in
a weigh boat and weighed it," indicating that the
cocaine was tangible and could be picked up or separated from
its container, which is another factor we articulated in
Sinks. Davis was able to clearly identify the
substance as cocaine, and finally, Davis testified that
"it was measurable. I could ...