Nelson v. State

• Decision Date: 16 February 2006
• Docket Number: No. CR 05-1045.,CR 05-1045.
• Citation: 229 S.W.3d 35
• Parties: James Everett NELSON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

229 S.W.3d 35

James Everett NELSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 05-1045.

Supreme Court of Arkansas.

February 16, 2006.

Ray Bunch, Rogers, for appellant.

Mike Beebe, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., Little Rock, for appellee.

BETTY C. DICKEY, Justice.

James Everett Nelson appeals the order of the Circuit Court of Washington County convicting him of possession of drug paraphernalia with intent to manufacture methamphetamine and possession of pseudoephedrine. He was convicted by a jury and sentenced as a habitual offender to fifty years in prison. On appeal, Nelson argues that the trial court erred by: (1) denying his motion to suppress the evidence; (2) finding that there was sufficient evidence to support his convictions; and, (3) allowing the State to introduce prior convictions under Rule 404(b) of the Arkansas Rules of Evidence. We affirm the decision of the trial court.

Jimmy Nelson, along with his passenger, Kurt Stanley, drove to Fayetteville, Arkansas in the late hours of November 3 or early hours of November 4, 2002. Officer Daniel Robbins was on patrol in the area when he observed their car, a silver Ford Taurus, pull into the Wal-Mart parking lot on Sixth Street in Fayetteville. Robbins noticed that the vehicle had a cracked windshield and that one occupant had entered Wal-Mart. After parking his car across the street, Robbins watched the vehicle leave the Wal-Mart parking lot. When Nelson failed to stop at the stop sign while exiting, Patrolman Robbins began following the vehicle. Robbins testified that he was suspicious about a person sitting in a vehicle outside of Wal-Mart in the early morning hours since he regularly got calls about people purchasing products at Wal-Mart during that time period, in order to manufacture methamphetamine. However, he admitted that he had no knowledge that those particular items were purchased and did not stop the vehicle for that reason. While following the vehicle after it left Wal-Mart, Robbins ran the license plate and learned that the tags returned to a vehicle of a different make, model, and color. Robbins then made a traffic stop at the Waffle House.

Robbins approached the car and asked Nelson for his driver's license, registration, and proof of car insurance. Nelson retrieved his license from his wallet, but could not produce the proof of insurance. Robbins arrested him for not having insurance and put him in the patrol car. Nelson was nervous, breathing heavily, and his hands were shaking. While taking Nelson to the patrol car, Robbins asked him if he had anything illegal in the vehicle, such as drugs or weapons. When Nelson responded that he did not, Robbins asked if he could "take a look." Robbins gave testimony that he was given permission, however Nelson disputes that fact. Robbins returned to the vehicle, and instructed the passenger, Stanley, to remove a bulldog from the back of the vehicle and to wait for Animal Control to arrive. Once Animal Control came, the dog was taken away and Robbins searched the vehicle, along with Officer Christopher Webber, the "back-up" officer who had arrived shortly after the stop. The search produced the following: a plastic Wal-Mart bag containing a juice bottle with white pills inside; a torn Actifed package; two bottles of Heet; a propane bottle; two Wal-Mart receipts, one from the Fayetteville location, dated the same day as the stop at 2:40 a.m., and the other from Rogers, Arkansas, dated the previous day at 11:30 p.m.; twenty-five feet of clear plastic tubing; and a Marlboro cigarette box taped up with more white pills inside. A total of four hundred and ninety-seven pills were found in the vehicle. Stanley, the passenger, was also arrested at that time and the two men were taken to the police station. Stanley failed to appear for his arraignment and a warrant for his arrest was issued. Nelson was convicted by a jury on July 23, 2003.

Nelson appealed to the court of appeals, and his judgment of conviction was reversed in a 4-2 decision. See Nelson v. State, 92 Ark.App. 275, 212 S.W.3d 31 (2005). We granted the State's petition for review, pursuant to Ark. Sup.Ct. R. 2-4 (2005). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed in this court. Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).

I. Substantial Evidence

The trial court denied Nelson's motion for a directed verdict. On appeal, Nelson alleges that the trial court erred in denying that motion because there was neither substantial evidence to support the charge of possession of drug paraphernalia with intent to manufacture methamphetamine, nor the charge of possession of pseudoephedrine. While Nelson raised this issue as his second point on appeal, preservation of Nelson's freedom from double jeopardy requires us to examine his sufficiency of the evidence argument before addressing trial errors. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

A motion for a directed verdict is a challenge to the sufficiency of the evidence. When a defendant makes a challenge to sufficiency of the evidence on appeal, the appellate court views the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict will be considered, and the conviction will be affirmed if there is substantial evidence to support it. Id.

As noted by the State, Nelson did not make a proper directed-verdict motion. He made the following motion to the court:

At this time the Defendant would move for a directed verdict on the two charges that he's facing. And basically on possession of drug paraphernalia with intent to manufacture based on the testimony and evidence submitted, we would respectfully say that the State has not met the burden of the elements of that offense, and likewise on the possession of pseudoephedrine that Jimmy Nelson possessed, those pills. And we would just ask for a directed verdict on both counts.

Arkansas Rule of Criminal Procedure 33.1 requires that where a motion for a directed verdict is made, the motion must specifically state how the evidence is deficient. See Ark. R.Crim. P. 33.1(a). Rule 33.1 further provides that the failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required by the rule will constitute a waiver of any question pertaining to sufficiency of the evidence. See Ark. R.Crim. P. 33.1(c) (emphasis added). Nelson's motion is improper, in that "[a] motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense." Ark. R.Crim. P. 33.1(c). The motion must specifically advise the trial court as to how the evidence was deficient. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). This court has repeatedly held that it will not address the merits of an appellant's insufficiency argument where the directed-verdict motion is not specific. See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). While appellant now raises specific arguments on appeal, they were not raised at the trial court level and we are therefore precluded from considering them for the first time on appeal.

Nelson's directed-verdict motion is not preserved for this court's review. His counsel merely stated that the evidence and testimony did not meet the burden of the elements of the offenses. As set out in the rules, such a surface objection is insufficient to preserve this argument for appeal. Accordingly, this court will not address the merits of the sufficiency argument.

II. Search and Seizure

Nelson next argues that the trial court erred in denying his motion to suppress the evidence found in his vehicle, alleging that the search was a violation of his right to be free from unreasonable searches and seizures pursuant to the Fourth and Fourteenth Amendments to the United States Constitution and Article 2, Section 15 of the Arkansas Constitution. The appellate court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to a reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). The trial court's ruling will not be reversed unless it is clearly against the preponderance of the evidence. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). We defer to the trial court in assessing the credibility of witnesses. Id.

Nelson begins this argument by alleging that his arrest was pretextual, therefore the trial court should have suppressed the evidence obtained as a result of that arrest. However, in the motion to suppress made to the trial court, he based his challenge to the arrest solely on the Fourth and Fourteenth Amendments to the United States Constitution, and the Arkansas Rules of Criminal Procedure. While this court has established that under the Arkansas Constitution, pretextual arrests are unconstitutional, we have also recognized, in case law on remand from the United States Supreme Court, that there is no longer a pretext inquiry under federal law as long as there was probable cause for the traffic stop. See State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002). The patrolman initiated the traffic stop after watching Nelson commit a traffic violation, failing to stop at a stop sign. Therefore, Nelson's argument pursuant to the United States Constitution is without merit. In addition, because Nelson did not raise the issue of...