ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CHRISTOPHER SPANN

APPELLANT

STATE OF ARKANSAS

APPELLEE

CACR 03-113

OCTOBER 22, 2003

APPEAL FROM THE CHICOT

COUNTY CIRCUIT COURT

[NO. CR2001-130-5]

HONORABLE JERRY MAZZONTI,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Christopher Spann appeals his conviction for possession with intent to deliver marijuana, as found by a jury in Chicot County Circuit Court. Appellant’s points on appeal are that the trial court abused its discretion in permitting a sheriff’s deputy to testify (1) as to his experience with characteristics of persons possessing drugs for personal use versus possession with intent to deliver, and (2) as to his opinion based upon his experience whether appellant Spann possessed the drugs with intent to deliver. On appeal, we will not reverse a trial court's ruling on the admission of evidence absent an abuse of discretion. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996). We affirm.

There is no question but that appellant possessed drugs. Appellant testified at trial admitting that he was stopped by a sheriff’s deputy, and that in a pat-down search he possessed $454 in cash in one pocket and a small bag of marijuana in the other. Appellant also admitted that in the search of his vehicle incident to arrest, the officer uncovered nine bags of marijuana under the driver’s-side floor mat. The evidence was sent to the crime lab and weighed, and the total was less than one ounce. Bag one weighed 2.4 grams, bag two 2.7 grams, bag three 2.6 grams, bag four 2.5 grams, bag five 2.4 grams, bag six 2.1 grams, bag seven 2.5 grams, bag eight 2.1 grams, and bag nine 1.3 grams. Appellant explained that he had just been paid and cashed his check, that he smoked marijuana, and that he had just purchased this amount in a “good deal” about an hour before being pulled over.

The deputy testified about his discovery of contraband. The deputy explained that he had about twenty years of experience in law enforcement, and that he had made close to 200 marijuana-related arrests, both for possession and possession with intent to deliver. Thedeputy said that “there are different characteristics about those types of people.” Defense counsel objected that the deputy could not testify about these characteristics, and the prosecutor responded that he should be allowed to demonstrate his experience. The question was allowed. The deputy then testified that his experience was that those in possession of marijuana only for personal use would have less than an ounce, just one bag, a couple of joints, whereas those who have intent to deliver would have it individually packaged. The deputy continued his testimony without objection that these bags, most of them “dime” or ten-dollar bags, would be valued at a total of between $90-$125, depending upon the availability in the area.

The prosecutor then asked if the deputy had formed an opinion about whether appellant possessed with intent to sell or just for personal use, to which defense counsel objected as speculation. The prosecutor argued that this was permissible lay testimony, pursuant to Ark. R. Evid. 701. The trial judge overruled the objection due to the deputy’s experience, background, and familiarity with the subject. In response to the prosecutor’s question, the deputy said that his professional opinion was that “this was definitely packaged for sale” since he had nine bags. Defense counsel cross examined the deputy, eliciting that most people, regardless of intent, would hide their drugs, and that the amount was less than one ounce.

Appellant was convicted and sentenced, and this appeal followed. The State was required to prove that appellant possessed the drugs with intent to deliver. Appellant possessed less than 21 grams, under the 28 grams (one ounce) that would give rise to the statutory presumption of possession with intent to deliver. Ark. Code Ann. § 5-64-401(d) (Supp. 2001). Even so, intent to deliver may be proved by circumstantial evidence. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989). The question to answer in this appeal is whether the trial court abused its discretion by admitting certain evidence for the jury to consider on the issue of intent. We do not think the judge abused that discretion.

Arkansas Rule of Evidence 701 (2002) permits lay witnesses to testify in the form of opinions or inferences, as long as those opinions or inferences are (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. As to the first objection, the deputy was permitted to explain his experience after having conducted close to 200 marijuana-related arrests. The arena of drug dealing and using was particularly well-known to such an experienced officer, and his opinion about packaging was helpful to a determination of a fact in issue and rationally based upon his perception as an officer of the law. The trial court actually permitted this testimony as expert testimony, Ark. R. Evid. 702, but did not declare him as such. Either way, no abuse of discretion was committed. To the extent that appellant attempts to characterize this as a Rule 402 or 404 violation, evidence of a prior bad act and conformity therewith, this argument was never raised to the trial court, and we do not consider it now on appeal. See Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001).

As to the second objection, we uphold the trial court’s ruling as well. Testimony in the form of an opinion or inference that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Ark. R. Evid. 704 (2002). Although opinion testimony on the ultimate issue is admissible, if the opinion mandates a legal conclusion or "tells the jury what to do," the testimony should be excluded. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). The trend of authority is not to exclude opinion testimony because it amounts to an opinion on the ultimate issue. See, e.g., Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). The deputy expressed his professional belief that the nine bags of marijuana he found were packaged for sale, which is actually consistent with appellant’s claim that he had just purchased these bags, although for his personal use rather than for resale. In Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998), two officers testified about their experience about the way in which methamphetamine is normally packaged and sold. One detective then stated that based upon his experience as a narcotics officer, the quantity of the methamphetamine, and its percentage of purity indicated to him an individual who was trafficking in narcotics. The supreme court held that such testimony was proper given that the State bore the burden of proving that Marts had possessed the methamphetamine with the intent to deliver it. We cannot distinguish Marts from the situation before us today, and we are bound to follow supreme court precedent.

Also instructive is Salley v. State, supra, wherein police officers were allowed to testify that Salley appeared to be "shooting to kill" when he pointed a handgun at one of the officers. The supreme court decided that this type of testimony is quite different from an expert who utilizes established facts and from those facts makes a conclusory statement that the actor was "negligent" or "guilty of malpractice." Id. at 283, 796 S.W.2d at 338; see also Long v. State, supra (holding that an officer's testimony in a DWI trial that the defendant was intoxicated was admissible although it embraced the ultimate issue, since it did not mandate a legal conclusion).

The trial court did not abuse its considerable discretion in overruling these two objections. We affirm.

Griffen and Neal, JJ., agree.