Jackson v. State

John B. Robbins, Judge, concurring. I disagree with the majority’s holding that, for the State to prove a substance is a “counterfeit substance,” it must prove two of the factors fisted in Ark. Code Ann. § 5-64-101 (e) (Repl. 1997). While subsection (e) provides that a finding of two of the factors constitutes prima facie evidence that a substance is counterfeit, it does not provide the exclusive means for the State to prove its case. Based on the evidence presented, I would not reverse for lack of substantial evidence that appellant possessed a counterfeit substance.

However, I agree with the majority’s decision to reverse because there was not substantial evidence that appellant intended to deliver the counterfeit substance. The dissent concludes that this point is not being raised on appeal, but I disagree. In his statement of the case appellant indicates the basis of his appeal: “The appeal is based on the fact that there is no overt action by the defendant to attempt to deliver or indicate that the substance was a counterfeit controlled substance.” In the argument section of his brief, appellant argues that the only evidence offered by the State was that upon his arrest he had his hand in his pocket, and that this evidence is insufficient to support his conviction. In my view, this argument is addressed to the lack of evidence regarding appellant’s intent, and I agree with appellant’s contention that there was insufficient evidence of his intent to deliver.