Emery A. Tillman v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION II

EMERY A. TILLMAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-262

November 8, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR-99-1835]

HON. JOHN BERTRAN PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Emery Tillman was convicted in an October 25, 1999, bench trial of possession of a controlled substance with intent to deliver and sentenced to ten years' imprisonment. Additionally, Tillman's five-year probation, imposed on August 16, 1994, for possession of a controlled substance, was revoked as a result of the 1999 conviction, and he was ordered to serve ten years' imprisonment on that charge, with the sentences to run concurrently.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial court on all

objections, motions and requests made by either party with an explanation as to why eachadverse ruling is not a meritorious ground for reversal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file pro se points; appellant has not done so. Because appellant has not filed any points on appeal, the State has not filed a brief.

On the night of March 10, 1999, Little Rock Police Officer Robert Martin removed what was determined to be 1.323 grams of crack cocaine from appellant's mouth after he noticed him furtively hiding in the shadows on the porch of a residence. At the close of the State's case on the possession with intent to deliver charge, appellant's counsel moved for a directed verdict on the basis that the State lacked probable cause to stop appellant when he was on the porch of the residence because there was no indication that any criminal activity was occurring. This motion was denied. Appellant did not call any witnesses, and he again moved for a directed verdict on the basis that the State lacked probable cause to approach him and that the State failed to prove the charge of possession with intent to deliver.

After appellant was convicted of the possession with intent to deliver charge, the trial judge revoked appellant's probation as a result of the conviction. Appellant made no motions with respect to the revocation of his probation.

Appellant argued in his directed-verdict motion that Officer Martin had no probable cause to approach him and ask him to open his mouth. Based upon this court's analysis in Rideout v. State, 22 Ark. App. 209, 737 S.W.2d 667 (1987), and Holt v. State, 15 Ark. App.269, 692 S.W.2d 265 (1985), appellant's motion for a judgment of acquittal based on lack of probable cause was not preserved for appeal.

In Rideout, the appellant was convicted of driving while intoxicated. During the trial, the results of a breathalyzer test were admitted into evidence, and at no time did appellant move to suppress those results or object to the introduction of this evidence. At the close of all the evidence, the appellant moved for a judgment of acquittal based upon a lack of probable cause for the arrest. Similarly, in Holt, the appellant was convicted of driving while intoxicated, and at the close of the evidence, he moved for a judgment of acquittal stating that the officer lacked probable cause to stop him. In each case, we held that appellant's motion for acquittal for lack of probable cause was, in reality, a motion to suppress the evidence coupled with a motion for a directed verdict, and that the motion was not timely made. Motions to suppress are governed by Rule 16.2 of the Arkansas Rules of Criminal Procedure, and section (b) of this rule requires that a motion to suppress be timely filed, but not later than 10 days before trial, except that the trial court has discretion to allow a later motion to suppress on a showing of good cause.

In the present case, as in Rideout, supra, and Holt, supra, no motion to suppress was filed prior to trial, and no attempt was made to demonstrate good cause for waiting until the close of all evidence to attempt to exclude a portion of the evidence that was presented without objection during the trial. Therefore, the attempt to suppress the evidence was not timely and cannot now be considered by this court.

In his directed-verdict motion at the close of all the evidence, appellant also argued that the State failed to produce proof beyond a reasonable doubt to the charge of possession with intent. This argument is not preserved for review. Rule 33.1(b) of the Arkansas Rules of Criminal Procedure requires that in a nonjury trial, a motion for dismissal shall state the specific grounds for dismissal. Section (c) provides that the motion must specify the respect in which the evidence is insufficient; a motion stating merely that the evidence is insufficient does not preserve the issue for appeal. In this case, appellant's counsel made a general motion, which is not sufficient to preserve the argument for appeal. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000).

Appellant made no motion for directed verdict with respect to the revocation of his probation. In Miner v. State, ___ Ark. ___, ___ S.W.3d ___ (October 12, 2000), our supreme court held that a specific directed-verdict motion is required by Rule 33.1 of the Arkansas Rules of Criminal Procedure to preserve a sufficiency-of-the-evidence challenge in revocation proceedings. Therefore, pursuant to Miner, appellant is precluded from arguing on appeal the sufficiency of the evidence to revoke his probation.

From a review of the record and the brief presented to this court, appellant's counsel has complied with the requirements of Rule 4-3(j) of the Arkansas Rules of the Supreme Court and the Court of Appeals, and the appeal is without merit. Counsel's motion to be relieved is granted, and appellant's judgment of conviction is affirmed.

Affirmed.

Pittman and Hart, JJ., agree.