Criminal procedure -- Sentencing; trial court exercised discretion appropriately in denying request for concurrent sentences. [ASCII, WP5.1]

Allen William WALLACE v. STATE of Arkansas

CACR 94-266                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                  Opinion delivered May 8, 1996


1.   Appeal & error -- challenge to sufficiency of evidence
     considered first. -- The appellate court considers a challenge
     to the sufficiency of the evidence prior to a review of any
     alleged trial errors.

2.   Motions -- directed verdict -- specificity requirement --
     rationale. -- A motion for a directed verdict must be specific
     enough to apprise the trial court of the particular basis on
     which the motion is made; the reasoning underlying this rule
     is that when specific grounds are stated and the proof is
     pinpointed, the trial court can either grant the motion, or,
     if justice requires, allow the State to reopen its case and
     supply the missing proof.

3.   Appeal & error -- arguments not raised at trial not addressed
     on appeal -- parties bound by objections and arguments at
     trial. -- Arguments not raised at trial will not be addressed
     for the first time on appeal, and parties cannot change the
     grounds for an objection on appeal but are bound on appeal by
     the scope and nature of the objections and arguments presented
     at trial.

4.   Motions -- directed verdict -- appellant did not make specific
     argument to trial court that he made on appeal -- argument not
     preserved. -- Where appellant did not make the specific
     argument to the trial court that he subsequently made on
     appeal, his motion for a directed verdict was inadequate to
     preserve for review that specific argument.

5.   Evidence -- sufficient evidence found that green vegetable
     matter was marijuana. -- The appellate court found sufficient
     evidence that green vegetable matter introduced at appellant's
     trial was marijuana.  

6.   Trial -- reversible error -- timely objection required. -- It
     is settled law that for the trial court to have committed
     reversible error, timely and accurate objections must have
     been made, so that the trial court was given the opportunity
     to correct the error.

7.   Trial -- improper closing argument -- immediate objection
     required -- prosecutor's statement not improper. -- To
     preserve for appellate review an allegation that the
     prosecuting attorney made an improper argument during his or
     her closing address to the jury, the defendant must make
     immediate objections to the statement at issue; further, the
     appellate court did not find that the prosecutor's statement
     that "a typical defense ploy is to throw stones at the way the
     police handle a case when they don't have a defense" was an
     improper comment on appellant's failure to testify.

8.   Criminal procedure -- sentencing -- consecutive or concurrent
     sentences -- trial court's discretion. -- It is within the
     province of the trial court to determine whether sentences
     should proceed consecutively or concurrently, and the decision
     is left to the sound discretion of the trial court; the
     appellate court has remanded for resentencing when it was
     apparent that the trial court did not exercise its discretion.

9.   Criminal procedure -- sentencing -- trial court exercised
     discretion appropriately in denying request for concurrent
     sentences. -- Where the trial court explained that it was
     taking several factors into consideration in denying the
     appellant's request that his sentences be run concurrently,
     the appellate court held that the trial court had carefully
     and thoughtfully analyzed the facts and had exercised its
     discretion appropriately.


     Appeal from White Circuit Court; Robert Edwards, Judge;
affirmed.
     David C. Schoen, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen. and Sr. App. Advocate, for appellee.

     James R. Cooper, Judge.
*ADVREP*CA4*
                               DIVISION III



                                        CACR94-266

                                                          May 8, 1996


ALLEN WILLIAM WALLACE                   APPEAL FROM THE WHITE COUNTY
          APPELLANT                     CIRCUIT COURT
                                        [NO. CR-93-179]

VS.                                     HON. ROBERT EDWARDS,
                                        CIRCUIT JUDGE

STATE OF ARKANSAS                       AFFIRMED
          APPELLEE






                          James R. Cooper, Judge.



     The appellant was convicted in a jury trial of three counts of
delivery of a controlled substance, marijuana.  He was sentenced to
serve consecutive sentences of ten years on each count for a total
of 30 years in the Arkansas Department of Correction.  On appeal,
he argues that the trial court erred in denying his motion for a
mistrial; that the evidence is insufficient to support his
conviction; and that the trial court erred in ordering his
sentences to run consecutively.  We affirm.
     For his second argument, the appellant challenges the
sufficiency of the evidence.  He asserts that the State failed to
prove that the green vegetable matter introduced into evidence as
State's Exhibit 3 was actually marijuana because Roy J. Adams, Jr.,
a forensic drug chemist from the Arkansas State Crime Laboratory,
failed to identify the exhibit as marijuana.  We consider a
challenge to the sufficiency of the evidence prior to a review of
any alleged trial errors.  Kennedy v. State, 49 Ark. App. 20, 894 S.W.2d 952 (1995).   However, the appellant's argument is not
preserved for appellate review.
     At the close of the State's case, the appellant made the
following motion for a directed verdict:
          Thank you, your Honor.  We would also move for
          a directed verdict on the three counts of
          delivery, feeling that the State has failed to
          meet the burden of proof and produce
          sufficient evidence that this Defendant
          delivered the substances, and that they were
          delivered for money or other consideration. 
          All of the proof was that they never found any
          money.  So that's our motion.  

     A motion for a directed verdict must be specific enough to
apprise the trial court of the particular basis on which the motion
is made.  Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).   
The reasoning underlying this rule is that when specific grounds
are stated and the proof is pinpointed, the trial court can either
grant the motion, or, if justice requires, allow the State to
reopen its case and supply the missing proof.  Brown v. State, 316
Ark. 724, 875 S.W.2d 828 (1994).  Our law is well established that
arguments not raised at trial will not be addressed for the first
time on appeal, and that parties cannot change the grounds for an
objection on appeal, but are bound on appeal by the scope and
nature of the objections and arguments presented at trial. 
Stewart, supra.

     In the case at bar, the appellant did not make the specific
argument to the trial court that he now makes on appeal. 
Therefore, his motion for a directed verdict was inadequate to
preserve for review the specific argument he now raises.  
     Moreover, we find the evidence to be sufficient on this point. 
Amy Hodges was the undercover officer who purchased the marijuana
from the appellant on March 29, April 2, and April 12, 1993.  
Officer Hodges testified, without objection, that she went to the
appellant's residence to purchase a quarter pound of marijuana on
three separate occasions.  She testified that each time the
appellant retrieved a large plastic ziplock bag full of marijuana
from a duffel bag, he took some marijuana from the ziplock bag and
placed it into another bag for her.  Officer Hodges testified that
she paid the appellant $350.00 for each quarter pound of marijuana. 
     Officer Hodges was working with and turned over the evidence
to Roger Ahlf, an investigator with the State Police.  Officer
Hodges and Investigator Ahlf both identified, again without
objection, State's Exhibit #3 as the marijuana purchased from the
appellant.
     The appellant also argues that the trial court should have
granted his motion for a mistrial because the prosecuting attorney
improperly commented on his failure to testify when she stated
during closing arguments, "You know, a typical defense ploy is to
throw stones at the way the police handle a case when they don't
have a defense."  However, this argument is also not preserved for
review because the appellant failed to make a timely objection and
motion for a mistrial.
     The appellant did not object to the prosecutor's statements
until after the jury had retired to deliberate.  It is settled law
that for the trial court to have committed reversible error, timely
and accurate objections must have been made, so that the trial
court was given the opportunity to correct such error.  Butler Mfg.
Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).  In order to
preserve for appellate review an allegation that the prosecuting
attorney made an improper argument during his or her closing
address to the jury, the defendant must make immediate objections
to the statement at issue.  Id.; Jones v. State, 248 Ark. 694, 453 S.W.2d 403 (1970).  Further, we do not think the prosecutor's
statement was an improper comment on the appellant's failure to
testify.
     For his third argument, the appellant asserts that the trial
court erred in failing to exercise its discretion when it ordered
his sentences to run consecutively.  It is within the province of
the trial court to determine whether sentences should proceed
consecutively or concurrently, and the decision is left to the
sound discretion of the trial court.  Brown v. State, supra.  The
Court has remanded for resentencing when it was apparent that the
trial court did not exercise its discretion.  Wing v. State, 286
Ark. 494, 696 S.W.2d 311 (1985).  
     Here, the trial court explained that it was taking several
factors into consideration in denying the appellant's request that
his sentences be run concurrently.  The trial court stated:
     This Court feels that [the appellant] has been convicted
     by a jury of three counts of delivery of marijuana,
     involving three separate, distinct sales occurring on
     March 29th, April 2nd, and April 12th.  The sales
     involved were of no small quantity.  Each of the sales
     involved approximately one-quarter pound of marijuana,
     which this Court considers to be a rather large amount of
     marijuana to take place in a single transactional sale. 
     We're not talking about a small baggie that is typically
     delivered by individuals in this county to persons who
     intend to smoke or consume marijuana for their own use. 
     We're talking about three sales in large quantities in
     large bags that amount to over, or approximately three-
     quarters of a pound of marijuana in fifteen days to the
     same person.  This Court feels that that is an
     aggravating circumstance that it must consider, the large
     quantity of marijuana that is -- that was sold, the fact
     that it was a repeated sale to the same person of almost
     three-quarters of a pound of marijuana, which would
     certainly cause one to wonder what [the appellant]
     thought his purchaser was doing with three-quarters of a
     pound of marijuana in fifteen days. . . .  With those
     circumstances and with that evidence, this Court feels
     that the proper and the prudent sentence to impose would
     be to impose the sentences as a consecutive sentence to
     reflect the total finding of the jury and that is what I
     intend to do.

We think that these statements clearly show that the trial court
carefully and thoughtfully analyzed the facts and exercised its
discretion appropriately.
     Affirmed.
     Robbins and Mayfield, JJ., agree.