Nelson v. State

229 S.W.3d 35, 365 Ark. 314

• Court: Supreme Court of Arkansas
• Decided: February 16, 2006
• Docket: CR 05-1045
• Status: Published

Opinions

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 drag 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 the Arkansas Constitution to the trial court, this court is precluded from reaching the merits of that argument for the first time on appeal.

Nelson further claims that the search and seizure were not authorized by Rule 12.1 and 12.4 of the Arkansas Rules of Criminal Procedure, rules regarding searches incident to a lawful arrest. Nelson’s argument is deficient in that the trial court concluded that Nelson had consented to the search, making arguments based on the rules of criminal procedure irrelevant. In reviewing the trial court’s ruling in this regard, we make an independent determination based on the totality of the circumstances, but reverse only if the ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). The State has the burden of proving that the consent was freely and voluntarily given and that there was no actual or implied duress or coercion. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980).

In the instant case, Nelson disputes the officer’s testimony that he got permission to search the vehicle. However, Officer Robbins gave the following testimony:

He said I could search the vehicle. I don’t know if his exact words were “you can search the vehicle.” I don’t know the exact wording of what he said, but I do know he said okay or yes. I took his response as yes, you can search the vehicle. I don’t really know for sure what he said to me. I told you, I’m not sure that Mr. Nelson said “yes.” It is not possible that he said that he did mind me searching the car. I’m sure that he didn’t tell me no.

When the testimony of an officer and an appellant are in direct conflict, we have said that the decision amounts simply to the question of which witness to believe, which is a decision left to the trier of fact. See Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). The trial court determined that Officer Robbins gave the most credible testimony regarding whether consent was given. Nelson’s credibility was weakened by the fact that he had more at stake than the officer and the fact that he gave an improbable explanation of his circumstances. See, e.g., Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). The decision of the trial court was not clearly against the preponderance of the evidence and we affirm.

III. Prior Convictions

For his final point on appeal, Nelson alleges that the trial court erred by allowing the State to introduce evidence of his prior convictions. The crux of his argument rests on the evidence admitted regarding his prior convictions from 1988. Those prior convictions included possession of methamphetamine and two counts of illegal delivery of methamphetamine. The trial court admitted the evidence pursuant to Ark. R. Evid. 404(b), to show intent, knowledge, and lack of mistake. Nelson argues that the prior convictions were not relevant and too remote in time, making them more prejudicial than probative.

This court reviews evidentiary rulings using an abuse-of-discretion standard:

This court has held that trial courts are afforded wide discretion in evidentiary rulings. See Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493 (2002). Specifically, in issues relating to the admission of evidence under Ark. R. Evid. 401, 403, and 404(b), we have held that a trial court’s ruling is entitled to great weight and will not be reversed absent an abuse of discretion. See, e.g., Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). This court will, likewise, not reverse absent a showing of prejudice. Gains v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

McCoy v. State, 354 Ark. 322, 325, 123 S.W.3d 901, 903 (2003).

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

If evidence of prior crimes is offered for other purposes, pursuant to 404(b), it must also be independently relevant, thus having a “tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Bragg v. State, 328 Ark. 613, 625, 946 S.W.2d 654, 661 (quoting Larimore v. State, 317 Ark. 111, 123, 877 S.W.2d 570, 576 (1994)). In other words, the prior crime must be “independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal.” Herron v. State, 362 Ark. 446, 208 S.W.3d 779 (2005). However, it is important to note that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ark. R. Evid. 403 (2004).

The following convictions were admitted into evidence at Nelson’s trial: he was charged with possession of methamphetamine and two counts of delivery in October 1987, for which he pleaded guilty in 1988; he was arrested for marijuana possession in June 2001, for which he was given three years’ probation; and, while on probation, he was charged with possession of drug paraphernalia with intent to manufacture methamphetamine, along with possession of pseudoephedrine. The State asserts that evidence of Nelson’s prior convictions was admissible regarding Nelson’s culpability, his intent. We agree with the State that the evidence falls within the Rule 404(b) exception.

We now turn to the issue of whether the prior convictions were independently relevant. Nelson alleged at trial that he was simply present in the vehicle and that the drugs belonged to his passenger. However, the evidence of his prior convictions offered probative evidence in opposition to that allegation. The prior convictions make it more probable that Nelson understood the components of methamphetamine and the manufacturing process, that he knew that the items in his possession were illegal in that quantity, and that he knew the items were used for manufacturing methamphetamine. Therefore, the evidence was independently relevant.

Evidence admitted pursuant to 404(b) must prove to not be too separated in time, making the evidence unduly remote. United States v. McCarthy, 97 F.3d 1562 (8th Cir. 1996). The trial judge is given sound discretion over the matter of remoteness, and will be overturned only when it is clear that the questioned evidence has no connection with any issue in the case. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). As we have already noted, the evidence does have a connection to Nelson’s intent in this case. Although the prior convictions were approximately fourteen years prior to Nelson’s arrest in the instant case, a reasonableness standard is used to determine whether a prior crime remains relevant rather than a specific time limit. See United States v. Green, 151 F.3d 1111 (8th Cir. 1998); United States v. McCarthy, 97 F.3d 1562 (8th Cir. 1997) (holding that a seventeen-year-old conviction was not too remote in time); United States v. Engelman, 648 F.2d 473 (8th Cir. 1981) (holding that a thirteen-year-old offense was not too remote in time); Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) (allowing thirteen-year-old threats made to an ex-wife to come into evidence). After considering the relevancy of Nelson’s prior crimes, we find it reasonable that they were admitted pursuant to 404(b).

The evidence admitted under 404(b) must pass a 403 analysis, meaning its probative value must not be substantially outweighed by any unfair prejudice. Considering that Nelson attempted to place the blame on his passenger, and that the evidence here involved the same type of drug offense, the probative value was high. If the introduction of evidence of other crimes, wrongs, or acts is independently relevant to the main issue, in the sense of proving some material point rather than to merely prove the defendant is a criminal, then evidence of that conduct may be admissible with a proper cautionary instruction by the court. Smith v. State, supra. Here, the trial court did not admit evidence regarding four other convictions received by Nelson in 1988 for firearms and drug-related charges. The court read into the record only the necessary information regarding the three convictions and gave cautionary instructions regarding the impermissibility of considering Nelson’s prior convictions for anything other than the issue of intent. We conclude that the probative value of this evidence outweighed any unfair prejudice to Nelson and that the trial court did not abuse its discretion.

For his final point on appeal, Nelson argues that the trial court erred in admitting evidence of his marijuana conviction for impeachment purposes. Flowever, he cites no authority. Furthermore, the evidence was properly admitted for impeachment under Ark. R. Evid. 609. Rule 609 states in relevant part:

(a) General Rule. For the purposes of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

Ark. R. Evid. 609(a) (2005).

Nelson elected to testify at his trial and explained on direct examination that his priors were committed when he was young. On cross-examination he further explained that “you do stupid things when you’re young,” and attempted to establish that he had been clean since his 1988 convictions. However, the State impeached him with the evidence of the marijuana charge, which was punishable by more than one year imprisonment and which occurred less than ten years ago. We conclude that there was no abuse of discretion by the trial court in admitting this impeachment evidence.

Affirmed.

Hannah, C.J., dissents.