dissenting. While I agree with the facts as set out in the majority opinion, I disagree with the determination that there was insufficient evidence to support the conviction. First, I disagree with the majority’s interpretation of Ark. Code Ann. § 5-64-101 (e) as requiring proof of at least two factors in order to constitute prima facie evidence that a substance is a “counterfeit substance” and would hold that there was substantial evidence that the substance in appellant’s pocket was counterfeit. Second, appellant does not argue on appeal that there was insufficient evidence of delivery. Therefore, I would affirm.
As stated in the majority opinion, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance except as provided. Ark. Code Ann. § 5-64-401. “Counterfeit substance” is defined in Ark. Code Ann. § 5-64-101 (e) as “a noncontrolled substance, which by overall dosage unit appearance (including color, shape, size, markings, packaging, labeling, and overall appearance) or upon the basis of representations made to the recipient, purports to be a controlled substance or to have the physical or psychological effect associated with a controlled substance.” Subsection (e) further provides that “In determining whether a substance is counterfeit, the following factors shall be utilized. A finding of any two (2) of these factors constitutes prima facie evidence that a substance is a “counterfeit substance”:
(1) Statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect;
(2) The physical appearance of the finished product containing the noncontrolled substance is substantially the same as that of a specific controlled substance;
(3) The noncontrolled substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance;
(4) The noncontrolled substance is not labeled in accordance with 21 U.S.C. § 352 or § 353;
(5) The person delivering, attempting to deliver, or causing delivery of the noncontrolled substance states or represents to the recipient that the noncontrolled substance may be resold at a price that substantially exceeds the value of the substance;
(6) Evasive tactics or actions utilized by the owner or person in control of the substance to avoid detection by law enforcement authorities;
(7) Prior convictions, if any, of an owner, or anyone in control of the object under state or federal laws related to controlled substances or fraud[.]
The majority opinion states that “two of the seven factors must be present to constitute prima facie evidence that a substance is a ‘counterfeit substance’ ” Subsection (e) does not so state. Rather, subsection (e) provides that the seven factors shall be considered in determining whether a substance is counterfeit and that a finding of any two constitutes prima facie evidence. The language of the statute does not indicate that the list is exclusive, and thus other facts of a similar nature can be used to show that a substance is “counterfeit.” Based on this interpretation of subsection (e), I would conclude that there is substantial evidence that the substance at issue was “counterfeit.”
Here, appellant had previously sold a “20 rock” to Detectives Hardester and Cooper. A short time later, they asked appellant to supply two more rocks. Appellant then reached into his right front pocket, and he was arrested. A search of appellant revealed rocks in the right front pocket, which were very similar in appearance to crack cocaine. The rocks were tested at the State Crime Lab and determined to be a noncontrolled substance. Although appellant made no verbal representations at the time of the second encounter, appellant’s actions in reaching into his pocket upon request for “two more rocks,” combined with the recent sale of a “20 rock” amounts to a representation that what he was reaching for in his pocket was a substance purporting to be a controlled substance. Viewing this evidence in the light most favorable to the State, I think that there was sufficient evidence to create a jury question.
The majority would also reverse based on insufficient evidence of delivery. Appellant only argues on appeal that there was insufficient evidence to find that the substance contained in appellant’s pocket was a counterfeit substance, and more specifically that the State failed to prove any two of the necessary factors set out in Ark. Code Ann. § 5-64-101(e). While appellant raised the issue of delivery in his motion for directed verdict, he abandoned this argument on appeal. I am authorized to state that Judge Pittman joins this dissent.