Richard Alan Thomas v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RICHARD ALAN THOMAS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-195

SEPTEMBER 21,2005

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CR 02-1050]

HON. DAVID LEE REYNOLDS,

JUDGE

AFFIRMED

Terry Crabtree, Judge

Pursuant to Arkansas Rule of Criminal Procedure 24.3(b) (2004), the appellant, Richard Alan Thomas, entered a conditional guilty plea1 to the offenses of manufacturing a controlled substance, simultaneous possession of drugs and firearms, possession of drug paraphernalia with intent to manufacture methamphetamine, and maintaining a drug premises within one thousand feet of a drug-free zone. The Faulkner County Circuit Court sentenced him to a total of ten years in the Arkansas Department of Correction. On appeal, he claims that the trial court erred by denying his motion to suppress. Specifically, he argues that the trial court erred in finding that he voluntarily consented to a search of his residence. We affirm.

The trial court held a hearing on appellant's motion to suppress. At that hearing, two witnesses testified, Drug Task Force Officer William Tapley and appellant. Officer Tapley stated that, on August 6, 2002, his department received information that appellant was manufacturing methamphetamine in his mobile home. Accompanied by Officer Travis Thorn, Officer Tapley went to appellant's residence and knocked on the door. A small child answered the door, then appellant's wife appeared in the doorway. Tapley told her why they were there, and while they were talking, appellant came to the door. According to Officer Tapley, he told appellant about the information the task force had received and requested permission to search. Officer Tapley testified that appellant consented to the search and led the officers to a back bathroom where, in the area containing the bathroom plumbing, contraband was found. Tapley stated that he and Thorn were dressed in plain clothes, wore their badges around their necks, and did not display their firearms during the encounter at the front door. Tapley recalled that the conversation between the three men was friendly and normal and that no threats or coercion were used.

Appellant testified on his own behalf and disputed Officer Tapley's testimony, claiming that the officers had threatened to obtain a warrant if he did not consent and that the officers would damage his residence during the execution of the warrant. After hearing all of the testimony, the trial court denied the motion to suppress, specifically ruling that it was basing its decision on its assessment of the credibility of witnesses.

The State argued that the basis of the search of appellant's mobile home was consensual. In such cases, the State bears the burden of showing that the consent was freely and voluntarily given. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). In reviewing the denial of a motion to suppress, we make an independent determination, viewing findings of fact for clear error and reviewing conclusions of law de novo. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001). A finding is not clearly erroneous merely because it is contradicted by other evidence, however. See Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999). Moreover, we defer to the superior ability of the trial court to resolve conflicting testimony and make credibility determinations, as those are matters wholly within the trial court's province. Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002).

We hold that the trial court did not clearly err by denying appellant's motion to suppress. In his brief, appellant continued to rely upon his own version of events. However, the trial court determined that appellant's version of events was not credible and instead credited Officer Tapley's testimony that no threats or coercion were used to obtain appellant's consent. Because we cannot say that this factual determination is clear error, we reject appellant's argument.

We recognize that State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), holds that, under the Arkansas Constitution, a home dweller must be advised of a right to refuse consent to search. However in this instance, appellant did not invoke the Arkansas Constitution in his motion to suppress. It is well settled that a state constitutional claim must be advanced before the trial court in order to raise it on appeal. See Scott v. State, supra. Moreover, appellant's argument to the trial court below, as well as to this court, focused on the voluntariness of his consent only, not whether he was advised of the right to refuse consent. To review a matter not briefed and argued would constitute plain-error review, which, absent extraordinary circumstances not presented in this case, appellate courts in Arkansas do not undertake. See Roberts v. State, 352 Ark. 489, 102 S.W.3d 482 (2003); McGhee v. State, 82 Ark. App. 105, 112 S.W.3d 367 (2003).

Affirmed.

Robbins and Griffen, JJ., agree.

1 In an unpublished opinion, we directed appellant to file a substituted abstract, addendum, and brief. We noted that appellant's addendum did not contain a written reservation in writing, the trial court's approval, or the consent of the prosecuting attorney to a conditional plea. As a result, we held that appellant's addendum was deficient because it did not contain the essential information showing that we had jurisdiction to entertain appellant's appeal. Accordingly, appellant filed a substituted abstract, addendum, and brief. See Thomas v. State, CA CR 04-195 (Apr. 6, 2005).