Jose Cano v. State of Arkansas

2022 Ark. App. 340

• Court: Court of Appeals of Arkansas
• Decided: September 21, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 340 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-22-41

JOSE CANO Opinion Delivered September 21, 2022 APPELLANT APPEAL FROM THE GRANT COUNTY CIRCUIT COURT V. [NO. 27CR-20-96]

STATE OF ARKANSAS HONORABLE CHRIS E WILLIAMS, APPELLEE JUDGE

AFFIRMED

BART F. VIRDEN, Judge

A Grant County jury convicted appellant Jose Cano of possession of

methamphetamine with purpose to deliver and two counts of possession of drug

paraphernalia. He was sentenced as a habitual offender to an aggregate term of forty-eight

years’ imprisonment. Cano argues on appeal that there was insufficient evidence to support

his convictions. We affirm.

On August 16, 2020, Cano wrecked his vehicle and was arrested for driving with a

suspended license. When he emptied his pockets, Cano pulled out a large wad of cash

totaling over $2,000 and a clear plastic baggie containing a white crystal substance that was

later determined to be methamphetamine. A set of digital scales with white powder residue

was found inside the vehicle along with two boxes of ammunition. Cano argues that the State failed to prove that he acted with purpose to deliver

methamphetamine because there was no evidence that he sold or attempted to sell the

controlled substance. With respect to the scales, Cano argues that they were never tested for

methamphetamine residue and points out that scales have many legitimate uses. As for the

“baggies,” Cano argues that they were not compared to the baggie containing

methamphetamine, so the jury had to have speculated as to their use. 1

The State contends that Cano’s sufficiency argument is not preserved for review. We

agree. Arkansas Rule of Criminal Procedure 33.1 provides that a directed-verdict motion

based on insufficient evidence must specify the manner in which the evidence is deficient; a

motion merely stating that the evidence is insufficient does not preserve issues concerning a

specific deficiency, such as insufficient proof on the elements of the offense. Rule 33.1 is

strictly construed. Merchant v. State, 2017 Ark. App. 576, 532 S.W.3d 136.

At the close of the State’s case, defense counsel said, “[T]he State has not presented

evidence that a reasonable person could find that they’ve met each and every element of the

crime of possession of drug paraphernalia with purpose to deliver.” She added, “I want to

make the record clear that the insufficiency of the evidence argument is for each of the three

charges brought by the State.” The trial court denied the motion. Cano did not present any

evidence, so counsel renewed her motion, and it was again denied.

1 The paraphernalia at issue was a single baggie that contained approximately sixteen grams of methamphetamine.

2 Cano’s arguments on appeal have clearly evolved from the general motion that he

made at trial. See, e.g., Blanton v. State, 2022 Ark. App. 44. A party is bound by the scope and

nature of his directed-verdict motion made at trial and cannot change the grounds on appeal.

Scott v. State, 2015 Ark. App. 504, 471 S.W.3d 236. Because Cano’s directed-verdict motion

was not specific, his challenge to the sufficiency of the evidence is not preserved for our

review. We thus affirm his convictions without deciding the merits of his arguments.

Affirmed.

KLAPPENBACH and WHITEAKER, JJ., agree.

Gregory Crain, for appellant.

Leslie Rutledge, Att’y Gen., by: Clayton P. Orr, Ass’t Att’y Gen., for appellee.