Wallace v. State
| Decision Date | 08 May 1996 |
| Docket Number | No. CACR,CACR |
| Citation | 920 S.W.2d 864,53 Ark.App. 199 |
| Parties | Allen William WALLACE, Appellant, v. STATE of Arkansas, Appellee. 94-266. |
| Court | Arkansas Court of Appeals |
David C. Schoen, Fayetteville, for appellant.
Clint Miller, Deputy Atty. General, Little Rock, for appellee.
The appellant was convicted in a jury trial of three counts of delivery of a controlled substance, marijuana. He was sentenced to serve consecutive sentences of ten years on each count for a total of 30 years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion for a mistrial; that the evidence is insufficient to support his conviction; and the trial court erred in ordering his sentences to run consecutively. We affirm.
For his second argument, the appellant challenges the sufficiency of the evidence. He asserts that the State failed to prove that the green vegetable matter introduced into evidence as State's Exhibit 3 was actually marijuana because Roy J. Adams, Jr., a forensic drug chemist from the Arkansas State Crime Laboratory, failed to identify the exhibit as marijuana. We consider a challenge to the sufficiency of the evidence prior to a review of any alleged trial errors. Kennedy v. State, 49 Ark.App. 20, 894 S.W.2d 952 (1995). However, the appellant's argument is not preserved for appellate review.
At the close of the State's case, the appellant made the following motion for a directed verdict:
Thank you, your Honor. We would also move for a directed verdict on the three counts of delivery, feeling that the State has failed to meet the burden of proof and produce sufficient evidence that this Defendant delivered the substances, and that they were delivered for money or other consideration. All of the proof was that they never found any money. So that's our motion.
A motion for a directed verdict must be specific enough to apprise the trial court of the particular basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). The reasoning underlying this rule is that when specific grounds are stated and the proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Stewart, supra.
In the case at bar, the appellant did not make the specific argument to the trial court that he now makes on appeal. Therefore, his motion for a directed verdict was inadequate to preserve for review the specific argument he now raises.
Moreover, we find the evidence to be sufficient on this point. Amy Hodges was the undercover officer who purchased the marijuana from the appellant on March 29, April 2, and April 12, 1993. Officer Hodges testified, without objection, that she went to the appellant's residence to purchase a quarter pound of marijuana on three separate occasions. She testified that each time the appellant retrieved a large plastic ziplock bag full of marijuana from a duffle bag, he took some marijuana from the ziplock bag and placed it into another bag for her. Officer Hodges testified that she paid the appellant $350.00 for each quarter pound of marijuana.
Officer Hodges was working with and turned over the evidence to Roger Ahlf, an investigator with the State Police. Officer Hodges and Investigator Ahlf both identified, again without objection, State's Exhibit # 3 as marijuana purchased from the appellant.
The appellant also argues that the trial court should have granted his motion for a mistrial because the prosecuting attorney improperly commented on his failure to testify when she stated during closing arguments, "You know, a typical defense ploy is to throw stones at the way the police handle a case when they don't have a defense." However, this argument is also not preserved for review because the appellant failed to make a timely objection and motion for a mistrial.
The appellant did not object to the prosecutor's statements until after the jury had retired to deliberate. It is settled law that for the trial court...
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...must have been made so that the trial court could be provided with the opportunity to correct such error. See e.g., Wallace v. State, 53 Ark.App. 199, 920 S.W.2d 864 (1996). Errors arising from improper argument are frequently curable by admonition to the jury, and the trial court should ha......
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