Ark.]
Cite as 357 Ark. 545 (2004)
559
In Harbison, we held that the State must prove a defendant possessed a "usable amount" of a controlled substance to support a conviction for possession of a controlled substance under Ark. Code Ann. § 5-64-401(c). Id. We looked to the statutory language criminalizing possession of a controlled substance and determined that the legislation was aimed at preventing the "use of or trafficking in drugs." Id. at 323, 790 S.W.2d at 151. In crafting the opinion, this court rejected the position adopted by a majority of states that a finding of an "identifiable" amount of a controlled substance is sufficient to support a conviction for possession. Instead, we adopted a standard that requires a "useable" amount and stated:
We recognize the possibility that one may be in possession of an amount of a controlled substance sufficient to permit knowledge of its presence and yet still not be in possession of a useable amount.
Id. at 322, 790 S.W.2d at 151. The dissent disagreed, stating that "a more dependable standard would be whether the amount is sufficient to permit identification of the substance." Id. at 324, 790 S.W.2d at 151 (Hays, J., dissenting). Today the majority supplants the "usable amount" standard with an "identifiable" standard stating "there was enough substance in the plastic bags to weigh and test." In Harbison, we adopted a "usable amount" standard, not a "weigh and test" standard.[1]
We adopted the "usable amount" standard under the analysis provided by the Arizona Supreme Court in State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962), and explained that the Arizona Supreme Court "held that 'in those cases where the amount is incapable of being put to any effective use' the evidence is insufficient to support a conviction." Harbison v. State, 302 Ark. at 321, 790 S.W.2d at 150 (1990) (emphasis added) (quoting State v. Moreno, supra). The Arizona courts have continued to apply the "usable amount" standard to possession cases. See State v. Quinones, 105 Ariz. 380, 465 P.2d 360 (1970); State v. Urias, 8 Ariz.App. 319, 446 P.2d 18 (1968). As reflected in the decisions by the Arizona
- ↑ In a footnote, the majority attempts to call into doubt the holding in Harbison by suggesting that the Texas Court of Criminal Appeals has overruled cases mentioned in that decision. Yet, in adopting the "usable amount" standard, the Harbison court did not rely on either Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122 (1956) or Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, 173 (1957).
