ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I CACR03-499

January 14, 2004

WILLIE GLENN HOWARD AN APPEAL FROM UNION

APPELLANT COUNTY CIRCUIT COURT

[CR02-237]

V. HON. HAMILTON H. SINGLETON,

JUDGE

STATE OF ARKANSAS AFFIRMED and MOTION TO BE

APPELLEE RELIEVED AS COUNSEL IS GRANTED

Wendell L. Griffen, Judge

Appellant Willie Howard was convicted of misdemeanor possession of marijuana. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j) (2003), appellant's counsel seeks to be relieved as counsel, alleging that an appeal would be wholly without merit. Appellant has not filed pro se points for reversal and accordingly, the State has not filed a brief in this case. We affirm appellant's convictions and grant counsel's motion to be relieved.

On January 29, 2003, Officer Terry Curry of the El Dorado Police Department received a report concerning a stolen puppy. The owner of the stolen puppy, through information provided by the owner's neighbor, informed Curry that the suspect was in a white Ford pickup and gave Curry the vehicle's license number. Curry ran the license plate number, which revealed appellant as the owner, but as the owner of a Cadillac, not a truck. Curry and Officer Harris approached appellant at his home. In appellant's garage was a truck with the license plate number matching the number given to Curry by the puppy's owner. Appellant consented to have his truck searched. When Curry opened the car door, he detected the odor of marijuana. Behind the front seat of the truck, Curry found a blue Wal-Mart plastic sack that was open at the top. Within the Wal-Mart bag, Curry saw a clear plastic bag containing a leafy, green substance that appeared to Curry to be marijuana. The substance was later identified as 4.2 ounces of marijuana. Curry placed appellant under arrest for possession of marijuana with intent to deliver.

At trial, Officer Michael Fife, who worked with the Arkansas Drug Task Force at El Dorado at the time appellant was arrested, testified that marijuana purchased as a "dime bag," which costs $10, is not compressed, but that the leaves are contained in smaller zip-lock type bags and are "kind of like parsley" in that they are loose and fluffy in the bag. He stated that as an undercover officer, he had purchased marijuana that was bagged like the bag of marijuana used as evidence against appellant. Finally, Fife read his lab report and stated that the marijuana seized in appellant's case weighed 4.2 ounces and had a minimum street value of approximately $250. The lab report was introduced into evidence.

After the State rested and at the close of the State's case, appellant moved for a directed verdict and his motions were denied. The jury found appellant guilty of the lesser charge of misdemeanor possession of marijuana. The trial judge accepted the jury's recommendation and sentenced appellant to serve twelve months in the county jail and ordered him to pay a $1,000 fine. This appeal followed.

In an Anders brief, the defendant's counsel is required to examine all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party and to explain why each adverse ruling is not a meritorious ground for reversal. Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). The test is not whether the trial court committed no reversible error, but rather whether the points to be raised on appeal would be "wholly frivolous." Id. Here, appellant received three adverse rulings: the denial of his motions for a directed verdict, the denial of a motion in limine, and the overruling of a hearsay objection.

I. Sufficiency of the Evidence

At the close of the State's case, appellant moved for a directed verdict, arguing that the evidence was not sufficient to show that he intended to deliver the marijuana or exchange it for money to another person. The prosecutor countered that Fife's testimony regarding the valuation and packaging of the marijuana, plus the fact that appellant possessed an amount clearly in excess of the minimum amount to trigger the statutory presumption of intent, was sufficient to submit the issue to the jury. The court denied appellant's motion and subsequently denied the renewal of his motion at the close of all of the evidence.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in the light most favorable to the appellee, and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion, one way or the other, with reasonable certainty beyond mere suspicion or conjecture. Id.

Viewing the evidence in the light most favorable to the State, the evidence showed that appellant was questioned by Curry because Curry was investigating the theft of a puppy. Appellant gave Curry consent to search his vehicle for the puppy. The officer did not find a puppy, but during the search of appellant's vehicle, he detected the odor of marijuana and found an open sack containing what he believed to be marijuana. Under Arkansas Code Annotated section 5-64-401 (Supp. 2003), the intent to deliver is presumed when a defendant possesses in excess of one ounce of marijuana. Fife testified the marijuana weighed approximately 4.2 ounces, well in excess of the statutory minimum. This is sufficient evidence to support the charge of possession of marijuana with intent to deliver. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (holding that since the defendant possessed a controlled substance in excess of the statutory presumption, the evidence was sufficient to establish his intent to deliver the drug). Appellant does not assert that the State failed to show that he possessed the marijuana; therefore, if the evidence was sufficient to support the charge of possession with intent to deliver, it was also sufficient to support the lesser charge of possession, for which the State is not required to prove intent. Because substantial evidence support's appellant conviction, an appeal on this point would be wholly frivolous.

II. Motion in Limine

Prior to the State's opening statement, appellant requested a motion in limine instructing the prosecutor to refrain from mentioning the presumption under Arkansas Code Annotated section 5-64-401 (Supp. 2003) that intent to deliver is presumed when a defendant possesses in excess of one ounce of marijuana. Appellant argued that the prosecutor should refrain from mentioning the presumption because the court cannot instruct the jury regarding the statutory presumption. The prosecutor responded that it is error for the court to instruct the jury on the issue, but that the prosecutor may inform the jury of the applicable law. The trial court denied the motion, stating that it would not instruct the jury regarding the statutory presumption. We do not reverse a trial court's ruling on a motion in limine absent an abuse of discretion. Edwards v. State, 70 Ark. App. 127, 15 S.W.3d 358 (2000).

It is true that the trial court cannot instruct the jury that the statute allows a rebuttable presumption if a defendant possesses drugs in excess of a certain amount because this rises to an impermissible comment on the evidence by the court. See Robinson v. State, 256 Ark. 852, 510 S.W.2d 867 (1974); French v. State, 256 Ark. 298, 506 S.W.2d 820 (1974). However, the State is allowed to explain the law in its opening statements as part of its theory of the case because opening statements are not evidence. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003)(noting that opening statements by counsel are not evidence); Chalette v. State, 308 Ark. 364, 824 S.W.2d 389 (1992)(holding that the prosecutor who was also a witness was not required to be disqualified where his theory of the case was legitimate argument and was not based on facts he had observed). Accordingly, we hold that the trial court's ruling on the motion in limine was not an abuse of discretion and therefore, an appeal on this matter would be wholly frivolous.

III. Hearsay Objection

Appellant's final adverse ruling took place when the trial court overruled a hearsay objection to a statement made by Officer Curry as follows:

Prosecutor: Now on this particular case did you have occasion to become in any activity involving Mr. Howard.

Officer Curry: Yes, sir, I did.

Prosecutor: And how did that come about?

Officer Curry: I was dispatched from Karen Street in reference to theft on a puppy, a pit bull puppy. Upon my arrival, I spoke with the complainant. He said that his neighbor had come next door and told him that -

At this point, appellant objected that the complainant's testimony was hearsay. The prosecutor countered that the statement was not offered to prove the truth of the matter, and the court allowed the statement. Curry then more fully testified that the complainant gave him the license plate number of a white Ford pickup that allegedly belonged to the person who stole the puppy.

Hearsay is a statement not made by the person testifying that is offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801©). Statements that would otherwise be hearsay are not hearsay if they are not offered to prove the truth of the matter asserted. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 319 (2000). Here, it appears that Curry's testimony regarding the complainant's statement was offered to show how Curry responded to the complaint concerning the theft of the puppy and, through that investigation, came to believe that appellant was involved with the alleged drug activity. Thus, Curry's testimony was not offered to prove that appellant had, in fact, stolen the puppy or become involved in drug activity. We will not reverse a trial court's ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002). Because the statement was not admitted to prove the truth of the matter, there was no abuse of discretion, and any appeal on this point would be wholly frivolous.

Affirmed and motion to be relieved as counsel is granted.

Gladwin and Roaf, JJ., agree.