Vanesch v. State

16 S.W.3d 306, 70 Ark. App. 277
CourtCourt of Appeals of Arkansas
DecidedMay 17, 2000
DocketCA CR 99-1018
StatusPublished
Cited by2 cases

This text of 16 S.W.3d 306 (Vanesch v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vanesch v. State, 16 S.W.3d 306, 70 Ark. App. 277 (Ark. Ct. App. 2000).

Opinion

K.MAX KOONCE, II, Judge.

Appellant was found guilty of .possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia. He appeals the convictions on the grounds that the trial court erred in admitting evidence of his juvenile delinquency adjudication. We affirm the convictions.

On January 21, 1998, appellant was charged with possession of methamphetamine with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997), possession of marijuana with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997), and possession of drug paraphernalia in violation of Ark. Code Ann. § 5-64-403 (Repl. 1997). A bench trial was held on February 26, 1999. The State amended the information on the day of trial to allege that appellant was a habitual offender under Ark. Code Ann. § 5-4-501 (a) (Repl. 1997), having been convicted of more than one but less than four felonies. The State relied on a felony theft by receiving conviction and a juvenile delinquency adjudication for delivery of a controlled substance.

At trial, Officer Scott Handford testified for the State that he stopped appellant because his taillights were flashing on and off while driving on Highway 65. Handford smelled marijuana and asked for appellant’s consent to search the vehicle. With appellant’s consent, Handford searched the vehicle and found a black bag containing numerous items which were introduced into evidence. The items included the following: (1) less than a gram of a substance suspected to be methamphetamine; (2) more than an ounce of a substance suspected to be marijuana; (3) a glass tube with residue; (4) a red pipe with residue; (5) a wire detector; and (6) a list of names, addresses, and telephone numbers.

Jeff Taylor, a drug chemist at the Arkansas Crime Lab, testified for the State that the items introduced into evidence included the following: (1) a bag with 138.2 grams of marijuana; (2) a bag with 4.8 grams of marijuana; (3) a bag with 0.988 grams of 28.5% pure methamphetamine or 0.281 grams of pure methamphetamine hydrochloride; (4) a red smoking device with residue of tetrahydro-cannabinol; and (5) a glass tube with residue of methamphetamine.

Appellant testified in his defense. He admitted that he intended to sell the seized marijuana and that the pipe was used to smoke methamphetamine, but denied intending to sell the methamphetamine. He admitted on cross-examination that he had been convicted of felony theft by receiving. The State then attempted to show appellant a certified copy of his juvenile record. Defense counsel objected on the grounds that the records were sprung on him the day of trial and he was not aware of the law on juvenile records. The defense did not object to the States amendment of the information to include an allegation of habitual offender. The State argued that appellant was aware of his criminal record and that the juvenile offense was a felony and therefore available for enhancement purposes for a habitual offender. Defense counsel objected on the basis that a juvenile record cannot be used for enhancement purposes for a habitual offender. The court overruled the objection. The State proceeded to question appellant about the juvenile record, and defense counsel stated, “I don’t see the relevance of this.” The State introduced the juvenile records wherein appellant pleaded guilty to seven counts of delivery of a controlled substance.

The trial court found appellant guilty on all charges. The . court then asked the parties whether they had anything to present concerning sentencing. The State asked that the court consider appellant’s felony records that had been introduced. Defense counsel made no objection to this request, and appellant was sentenced to twelve years for the possession of methamphetamine with intent to deliver conviction (Class Y felony), ten years for the possession of marijuana with intent to deliver conviction (Class C felony), and six years for the possession of drug paraphernalia conviction (Class C felony). The sentences were to run concurrently.

Appellant first argues that the trial court erred when it admitted evidence of appellant’s juvenile delinquency adjudication which was irrelevant and improper impeachment evidence under Rules 402, 608, and 609 of the Arkansas Rules of Evidence. We are unable to consider this argument because this court will not consider an argument raised for the first time on appeal. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged, and the appellate court will not address arguments raised for the first time on appeal. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). A party cannot change the grounds for an objection on appeal but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

Appellant did not make any objections based on Rules 608 or 609 of the Arkansas Rules of Evidence to the admission of evidence relating to appellant’s juvenile adjudication. The only objection that was made by appellant’s counsel and ruled on by the trial court was as follows: “I’m objecting that I don’t believe you can use the juvenile record against him for a habitual offender status in this case.” After the trial court overruled the objection, the State proceeded to question appellant about whether he had an adult case transferred to juvenile court. Appellant’s counsel then stated, “I don’t see the relevance of this.” Appellant contends this statement was a relevance objection pursuant to Ark. R. Evid. 402. Appellant’s counsel never indicated he was making a Rule 402 objection, and even if appellant’s counsel intended this statement to be an objection, a ruling was not obtained. This court will not review a matter on which the trial court did not rule, and a party seeking to raise the point on appeal concerning a ruling has the burden to obtain a ruling. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). Matters left unresolved simply may not be raised on appeal. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998).

Appellant next contends the trial court erred when it considered appellant’s juvenile delinquency adjudication as a conviction for purposes of sentence enhancement as a habitual offender under Ark. Code Ann. § 5-4-501. The habitual offender law is codified at Ark. Code Ann. §§ 5-4-501 et seq. and provides in pertinent part as follows:

(a)(1) A defendant who is convicted of a felony other than those enumerated in subsections (c) and (d) of this section committed after June 30, 1993, and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies; or

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Orona
724 F.3d 1297 (Tenth Circuit, 2013)
Roberts v. State
78 S.W.3d 743 (Court of Appeals of Arkansas, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
16 S.W.3d 306, 70 Ark. App. 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanesch-v-state-arkctapp-2000.