Darren L. Tucker v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS SAM BIRD, JUDGE DIVISION I

DARREN L. TUCKER,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-946

APRIL 24, 2002

APPEAL FROM THE GRANT COUNTY CIRCUIT COURT,

NO. CR00-43-1,

HON. JOHN W. COLE, JUDGE

AFFIRMED

Darren Tucker was convicted of DWI, fourth offense, and battery in the second degree, resulting from a car accident that injured him and three children passengers. A urine test, to which Tucker had submitted, returned a result of .12% alcohol level and the presence of cannabinoids, a metabolite of THC, the active chemical in marijuana. Tucker filed a motion in limine, requesting that the court exclude the evidence of intoxication, contending that the police did not inform Tucker of his right to have additional tests performed by a qualified person of his own choosing and at his own cost. He also argued that the test results of the urine sample should be excluded because the sample was not taken in compliance with state regulations.

The trial judge orally ruled that the urine sample was inadmissible. However, during trial, the judge allowed the State to elicit testimony that pertained to the urine test. When Tucker objected at one point during this questioning, the trial judge said that he had ruled

on this in chambers and that the objection would be overruled on a very narrow basis, implicitly suggesting that his ruling on the motion in limine was not intended to exclude the evidence of the results of the urine test for every purpose.

Tucker appeals, arguing that the trial court erred in allowing the State to question and solicit answers concerning the urine test that, he contends, was previously excluded by the motion in limine, and that such action prejudiced him and was a basis for a mistrial. We affirm.

From our examination of the abstract, we do not believe that Tucker has demonstrated any error. The abstract is comprised of testimony that establishes that law enforcement obtained both blood and urine samples and that the urine sample was taken at the hospital. There is nothing in the testimony to suggest that law enforcement failed to advise him of his right to an additional test by a qualified person of his own choosing. It is appellant's burden to bring up a record sufficient to demonstrate error. Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). When the appellant fails to demonstrate error, we affirm. Id.

Furthermore, a trial court's ruling on a motion in limine is not a final ruling on the admissibility of the evidence in question, but only interlocutory, tentative, or preliminary in nature; as such, it is subject to reconsideration and change by the court during the course of the trial, as the evidence in the trial is fully developed. Conagra, Inc. v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999)("the trial judge initially ruled in Conagra's favor regardingthe admission of testimony concerning prior incidents of water being on the floor. However, at trial the judge admitted the testimony for the limited purpose of establishing that Conagra had prior notice of the hazardous nature of that area of the floor. We will not reverse the trial court's ruling on the admission of evidence absent an abuse of discretion.").

To collect a urine sample for alcohol testing purposes, the subject must first be instructed to void the bladder. One-half hour later, the subject should again be requested to void the bladder and that specimen should be collected for analysis. Arkansas Dep't of Health, Arkansas Regulations for Alcohol Testing, § 3.30 (1995 ed.). Tucker argued to the court that the urine sample should be excluded because it was not taken from this "second bladder." This requirement, however, pertains only to the taking of urine samples to be tested for alcohol. See Arkansas Dep't of Health, Arkansas Regulations for Alcohol Testing, § 3.30. The trial judge, within his discretion, allowed the evidence for the purpose of establishing the foundation to introduce the urine test results for its indication of the presence of cannabinoids, not for alcohol.

Moreover, even if we could find the trial court erred in allowing the questioning pertaining to the urine sample, the error was harmless. This court has consistently held that under the harmless-error rule, when evidence of guilt is overwhelming, and the error slight, we can declare the error to be harmless. Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998) (holding that introduction of testimony regarding the defendant's state of mind washarmless error in light of other evidence introduced at trial); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (holding that admission of additional drug paraphernalia was harmless error where there was overwhelming evidence to support the conviction). Tucker's admissible blood test resulted in a blood-alcohol content of .07 percent. An expert for the State estimated that based upon the approximately 2.6 hours of elapsed time between the accident and the taking of the sample, Tucker's blood-alcohol content at the time of the accident would have been approximately .12 percent. Tucker admitted that he had been drinking that night and had smoked marijuana two days prior to the accident. Tucker also admitted that his drinking may have played a role in the accident. In light of this evidence, the trial court's admission of testimony pertaining to the urine test was harmless error.

Tucker argues that he was prejudiced because the jury was confused by the testimony pertaining to the urine test when its result as to alcohol content was not presented to the jury. This testimony could cause no confusion, however, as the urine test and the questioning were clearly proffered to establish the presence of cannabinoids in Tucker's body, not the level of alcohol. The burden of showing prejudice is on appellant. We will not overturn the trial court's ruling unless appellant has demonstrated an abuse of discretion. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994).

Tucker further argues that the introduction of the testimony constituted a ground for a mistrial. Tucker did not request a mistrial; thus, he did not preserve this argument forappeal. See Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998).

Affirmed.

Hart and Neal, JJ., agree.