ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

JERALD MICHAEL CHARTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1229

MAY 30, 2001

APPEAL FROM THE CONWAY

COUNTY CIRCUIT COURT

[NO. CR1999-73]

HONORABLE PAUL EDWARD

DANIELSON, CIRCUIT JUDGE

AFFIRMED

Appellant Jerold Michael Charton was convicted in a jury trial of possession of marijuana with intent to deliver and possession of drug paraphernalia, both Class C felonies. He was also convicted of driving on a suspended license, a misdemeanor. For his felony convictions he was sentenced to ten and nine-year prison terms, to be served concurrently. In addition, he received a ten-year enhancement of his sentence because, pursuant to Ark. Code Ann. § 5-64-411(a)(4) (Repl. 1997), he was found to have committed possession with intent to deliver within 1,000 feet of a publicly funded and administered multifamily housing development. Mr. Charton now appeals.

For reversal, Mr. Charton raises three arguments. First, he argues that the trial court erred in denying his motion for directed verdict on the charge of possession of marijuana with

intent to deliver. Next, he contends that the trial court erred in allowing the jury toconsider the ten-year enhancement penalty because he did not have sufficient notice of the possibility of the penalty. Finally, Mr. Charton argues that the trial court erred in overruling his objection to the testimony of Officer Doug Hunter regarding the publicly funded multifamily housing development.

A motion for directed verdict is a challenge to the sufficiency of the evidence, which we consider before any other points on appeal. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). In determining whether there is substantial evidence to support the verdict, we review the evidence in the light most favorable to the State, considering only that evidence that tends to support the verdict. Adkins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997).

Officer Doug Hunter of the Morrilton Police Department testified for the State. He stated that he was patrolling the Cherokee Courts housing development on the evening of May 19, 1999, when he observed Mr. Charton driving a vehicle. Officer Hunter had recently stopped Mr. Charton for driving on a suspended license, and after Mr. Charton parked the car Officer Hunter approached. At that time, Mr. Charton voluntarily admitted that he did not have a driver's license. After discovering that Mr. Charton was also wanted on misdemeanor warrants, Officer Hunter decided to make an arrest.

During the arrest, Officer Hunter discovered a black bag in Mr. Charton's possession. Inside the bag were three smaller bags. One of the smaller bags contained a partially-smoked, hand-rolled marijuana cigarette and some rolling papers. Another bag contained 3.5 ounces of what was later determined to be marijuana. The third bag contained 2.3 grams of methamphetamine.1 A syringe was also recovered from the black bag, and Officer Hunter found $1145.00 in Mr. Charton's pocket.

Officer Rusty Quinn, a criminal investigator for the Morrilton Police Department, also testified. He stated that, in his experience, the amount of marijuana possessed by Mr. Charton is usually possessed for the purpose of selling the drug, and not just personal use. Officer Quinn further testified that it is common for a drug dealer to carry more than $100.00 in cash. He stated, "With regard to the amount of cash and the way the drugs were packaged, from my experience, it would be for selling."

We first address Mr. Charton's argument that there was insufficient evidence to support his conviction for possession of marijuana with intent to deliver. He concedes that there was sufficient evidence that he possessed the marijuana, but contends that there was no evidence of intent to sell. He argues:

As the State points out in its brief, Mr. Charton's first argument has not been preserved for review. A motion for directed verdict must state specific grounds, and if a motion is general and does not specify a basis for it, it will be insufficient to preserve a challenge to the sufficiency of the evidence on appeal. Ark. R. Crim. P. 33.1; Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). When Mr. Charton made his directed-verdict motions to the trial court, he failed to raise the point now being argued; therefore his argument need not be addressed.

We note, however, that Mr. Charton's sufficiency argument would have been of no avail even had it been preserved for appeal. Mr. Charton possessed 3.5 ounces of marijuana, and possession of one ounce of marijuana creates a rebuttable presumption of intent to deliver. See Ark. Code Ann. § 5-64-401(d) (Repl. 1997). In addition to a relatively large amount of marijuana, Mr. Charton also possessed a large amount of cash, which is relevant in determining whether he intended to deliver the marijuana. See Jackson v. State, 52 Ark. App. 7, 914 S.W.2d 317 (1996). There was substantial evidence to support the jury's verdict for this charge.

Mr. Charton's remaining two arguments pertain to his sentence being enhanced by ten years because the jury found that he possessed marijuana with an intent to deliver within 1,000 feet of a publicly funded and administered multifamily housing development. During the sentencing phase of the trial Officer Hunter was permitted, over objection, to testify thatCherokee Courts is a federally funded, public housing development. Mr. Charton submits that enhancement of his sentence was erroneous.

Mr. Charton's first challenge to his sentence enhancement is premised on his contention that he was given insufficient notice of the possibility of the penalty. Arkansas Code Annotated section 5-64-411 (Repl. 1997) provides, in pertinent part:

....

....

Mr. Charton points out that there was no evidence of any notice posted at the entrance of Cherokee Courts as required by the above statute. He acknowledges that section (d)(2) expressly provides that failure to post the notice does not bar sentence enhancement under the statute. However, he argues that without the posting of the sign, he was without warning of the potential ten-year enhancement. He cites Becker v. Lockhart, 971 F.2d 172 (8th Cir. 1992), for the proposition that due process requires that laws provide notice to the ordinary person as to what constitutes prohibited activity.

Because he failed to raise this argument below, Mr. Charton's contention that his due-process rights were violated has not been preserved for review. It is well settled that even constitutional arguments are waived if they are presented for the first time on appeal. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997). Nonetheless, the argument is without merit. Mr. Charton correctly asserts that due process requires that laws provide notice as to what constitutes prohibited activity, but the plain wording of the enhancement statute itself put Mr. Charton on notice of the potential additional penalty for dealing drugs near a publicly funded housing development. He does not argue that the statute is void for vagueness, and the statute provides that the posting of a notice is not a necessary element for the enhancement of a sentence.

Mr. Charton argues, in the alternative, that the trial court erred in permitting Officer Hunter's testimony during the sentencing phase of the trial. Mr. Charton contends that Officer Hunter's statement that Cherokee Courts is a publicly-funded housing program constituted inadmissible hearsay. See Ark. R. Evid. 801 and 802. In addition, he argues that the testimony of Officer Hunter should have been excluded pursuant to the best-evidence rule.

We find no error in the admission of Officer Hunter's disputed testimony. Officer Hunter testified that he worked in the community policing program, which was established between the City of Morrilton and the local public housing authority. He stated that his assignment was to patrol and police public housing areas, and he listed the publicly-fundedareas that he patrolled, which included Cherokee Courts. His testimony indicated that he had personal knowledge of these facts. Thus, his testimony was not hearsay.

Mr. Charton mistakenly refers to the best-evidence rule as Rule 901, when in fact it is Rule 1002. See Daulin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995); Johnson v. State, 289 Ark. 589, 715 S.W.2d 441 (1986). At any rate, neither of these rules are applicable. Rule 901 sets out the requirements of authentication and identification, while Rule 1002 provides, "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by [rules adopted by the Supreme Court of this state or by] statutes." Mr. Hunter's testimony was not being offered to authenticate or identify a tangible item of evidence as a condition precedent to its admissibility, and the best-evidence rule applies only to writings, recordings, or photographs, none of which are at issue here. These rules of evidence provided no basis to suppress his testimony. The trial court is vested with wide discretion in admitting evidence, Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999), and the trial court did not abuse its discretion in this regard.

Affirmed.

Jennings and Baker, JJ., agree.

1 Mr. Charton was also charged with possession of methamphetamine with intent to deliver, but the jury deadlocked, resulting in a mistrial on that charge.