Sarah O'Neal v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

SARAH O'NEAL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-602

October 31, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. 98-4061]

HON. MARION A. HUMPHREY,

CIRCUIT JUDGE

CONCURRING OPINION ON DENIAL OF REHEARING

Appellant argues in her petition for rehearing that she was convicted of a crime with which she was never charged, and that no objection was required to raise that matter on appeal. Specifically, she contends that she was charged with possessing ephedrine but convicted of possessing pseudoephedrine, and that in such circumstances Ark. R. Crim. P. 33.1 does not apply and due process requires that one be allowed to raise the issue for the first time on appeal. I concur in the denial of appellant's petition.

Appellant's entire argument depends on the premise that she was convicted of a different crime than the one with which she was charged. However, that premise is a false one. Appellant was charged with possession of ephedrine; at the conclusion of her bench trial, the trial court said simply, "The [appellant is] found guilty"; and the judgment and

commitment order states that appellant was found guilty of "possession of ephedrine." While appellant maintains that the State's proof regarding her possession of ephedrine was lacking, this is a classic example of an argument that the evidence was insufficient to support the finding of guilt. Such an argument must be specifically raised by motion for dismissal in the trial court in order to preserve the issue for appeal. Appellant did not raise the issue at trial, and it was therefore waived. Ark. R. Crim. P. 33.1(b) and (c).