Donald K. Franklin, Jr. v. State of Arkansas

ar05-590

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DONALD K. FRANKLIN, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-590

February 8, 2006

APPEAL FROM THE DREW COUNTY CIRCUIT COURT

[CR-04-183-4]

HON. DON EDWARD GLOVER, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

A Drew County jury sentenced appellant Donald Franklin, Jr., to four years' imprisonment for possession of marijuana with intent to deliver and sixteen years' imprisonment for possession of cocaine with intent to deliver. On appeal, he does not challenge the sufficiency of the evidence supporting his conviction; rather, he argues that the trial court erred in instructing the jury. We affirm.

Because Franklin does not challenge the sufficiency of the evidence, it is only necessary to recite those facts that relate to his argument on appeal. During his trial, a packet of jury instructions was submitted to the court without objection and read to the jury after both the State and defense rested. About an hour after the jury had retired for deliberations, it sent the court the following note: "We need clarification of possible verdict of reasonable doubt to deliver as opposed to jury instructions to jury that says money or anything of value in exchange." The apparent confusion stemmed from the fact that the verdict forms for both charges stated that the jury found beyond a reasonable doubt that appellant was guilty of possession with intent to deliver, while a jury instruction stated that to sustain either charge, the State had to prove beyond a reasonable doubt that appellant possessed the marijuana or cocaine with the intent to transfer them to another person in exchange for money or anything of value. The jury instruction also advised the jury that it could consider the amount or quantity of cocaine or marijuana when deciding appellant's purpose or intent.

The court and attorneys for both parties discussed the jury's question, and defense counsel expressed concern that the jury did not understand the definition of "delivery" and asked that the court clarify the term. The State maintained that the jury instructions included a definition of delivery and that the judge could just refer the jury to the proper instruction that was already in their packet. The court brought the jury back into the courtroom, and the following colloquy took place during a bench conference:

Defense Counsel: Is 6407 [the jury instruction referenced above] in there?

State: I feel like the best guidance we can give them is refer you to 6407.

Court: 6407?

Defense Counsel: Could I look at it, sir? I know you've read it to them once. Yeah.

State: It's there.

Defense Counsel: Yeah.

State: That's what we can tell them.

Defense Counsel: There it is right there.

Court: Okay.

Defense Counsel: That's as clear as it can be.

Court: Okay. So refer them to the jury instruction?

Defense Counsel: Would you read it, Your Honor? Would you read that to them, that instruction?

State: I don't have an objection if you want to read 6407.

Court: Okay.

Thereafter, the court read the jury instruction to the jury in open court. The jury foreperson then said, "I'm still having a problem with this first paper where we sign off on the verdict is the wording. `We, the jury, find beyond a reasonable doubt that Donald K. Franklin Jr. is guilty of possession with the intent to deliver cocaine.' And then on the jury instruction it adds to it that it has to be with receiving money or something of value. Does that play into the verdict of this right here? Are we supposed to consider that or are we supposed to consider this first, the verdict that we're signing off on?"

Thereafter, another bench conference was held where defense counsel asked the trial judge to instruct the jury that for there to be delivery there has to be an exchange of the controlled substance for something of value. The State replied that the jury instruction already read to the jury contained that information and was a definition of possession with intent to deliver. Defense counsel agreed with the State, and asked for the court to explain that to the jury. The following exchange occurred:

State: I don't have any objection to that. This means that in order to sustain the charge we have to prove that he did that. They've got it underlined right there.

Defense Counsel: Right. That's the definition of delivery.

State: That's possession with intent to deliver.

Defense Counsel: Well, yeah.

State: Is he possessed it with the intent to

Defense Counsel: Right.

State: That is the definition of delivery.

Defense Counsel: Yeah, this is the definition of delivery.

State: To transfer it to another person in exchange for money or anything of value.

Defense Counsel: Yeah. To find that he had it with intent to deliver it they have to find he had that intention.

State: His intention was to transfer it to another person with

Defense Counsel: Yeah. If you would read that to them in that form, Your Honor.

Court: Well

Defense Counsel: That's what he wants to know.

State: Just tell them to read the instruction. It means what it says. It means what it says, Judge.

Defense Counsel: I'm asking the Court to define delivery.

The trial judge then addressed the jury in open court and stated that "the jury instructions provide for that question that you have, that you are asking about. And I think that's what deliberation is all about. As a matter of fact, this, the particular page I see where notations and underscoring have been made. And I think it's the province and responsibility of the jury to read and deliberate until you develop a full meaning of what it says. You determine what the facts are and apply, make a decision as to whether or not the law....Just apply the law to the facts as you determine them to be. I think that's a part of deliberation of all twelve of you and you'll reach the right decision." Defense counsel then asked the judge to define "delivery" and noted that the last sentence of the jury instruction defined "delivery." The judge then referred the jury to the appropriate instruction and asked them to continue deliberations. The jury returned approximately fifteen minutes later with a verdict of guilty on both counts.

Although the issue before us on appeal is whether the trial court abused its discretion with regard to instructing the jury, we decline to reach the merits of Franklin's argument because he has not properly preserved this issue for our review. Where appellant received the only relief he has requested, he has no basis upon which to raise the issue on appeal. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). Additionally, our supreme court has stated that counsel is required to object and proffer an instruction in order to later appeal. Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002).

Here, although Franklin asked the court to define delivery, he agreed with the State and the court that delivery was defined in the last sentence of the already-included jury instruction. In addition, Franklin never proffered any other specific language for the court to use other than the language of the jury instruction, which the jury already had access to and which the court had read to them twice. Therefore, we are satisfied that Franklin did not preserve his arguments for appeal because the trial judge gave the precise clarification that Franklin asked for with regard to the definition of "delivery."

Affirmed.

Griffen and Baker, JJ., agree.