Daniel M. Hainline v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

DANIEL M. HAINLINE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-798

MARCH 28, 2001

APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

[NO. CR 97-767-1]

HONORABLE TOMMY J. KEITH,

CIRCUIT JUDGE

AFFIRMED

Appellant Daniel Hainline appeals his convictions rendered by the Benton County Circuit Court jury for delivery of methamphetamine (Count III) and delivery of methamphetamine within 1,000 feet of a school (Count IV). These crimes were alleged to have been committed on September 9, 1996. Appellant was also convicted of a separate delivery of methamphetamine committed on August 6, 1996 (Count I), but he does not argue that this conviction should be reversed. The jury found appellant not guilty of delivery of methamphetamine committed on August 19, 1996 (Count II). He asserts three points on appeal: (1) that there is insufficient evidence that the alleged delivery took place within 1,000 feet of certain real property, in this case the Decatur High School; (2) that the trial court erred when it denied appellant's motion for a new trial on Counts III and IV; and (3) that the

statute on enhanced punishment for selling drugs within 1,000 feet of a school is unconstitutionally vague. Because appellant failed to preserve for review any of these pointson appeal, we affirm.

First, we discuss the sufficiency-of-the-evidence argument. Arkansas Rule of Criminal Procedure 33.1 (2000) provides that a defendant who fails to move for a directed verdict at the close of the State's case and again at the conclusion of the presentation of all the evidence waives any question pertaining to the sufficiency of the evidence to support a jury verdict. Moreover, if a defendant does move for directed verdict at these required times, he must state the specific grounds therefor. Ark. R. Crim. P. 33.1(a).

In this case, appellant moved "that the three charges against him be dismissed for want of the State to make a- make a prima fascia [sic] case. ... [S]pecifically the charges of possession of- delivery have not been met- have not been met, particularly with regard to counts two and three. Prima fascia [sic] wise I think they have on count one." Appellant states in his brief on appeal that he implicitly argued the insufficiency of the State's case with regard to Count IV because a finding of guilt on Count III was necessary to a finding of guilt on Count IV, and therefore he preserved this issue. We disagree. The Arkansas Rules of Appellate Procedure-Criminal are specific, and we are required to adhere to them. Appellant's challenge on appeal is to the sufficiency of the State's proof that the delivery of methamphetamine was accomplished within 1,000 feet of certain real property, which includes school grounds. Count IV was never raised to the trial court in appellant's motion to dismiss. Even were we to agree that appellant's motion for directed verdict included Count IV, we could still not reach the merits of his argument because he did not specifically state what proof was lacking, which precludes our review. See Gray v. State, 327 Ark. 113,S.W.2d 639 (1997). We simply cannot address the issue.

Appellant's second point on appeal is that the trial court erred in failing to grant his motion for a new trial on Counts III and IV. This issue is also not preserved for our review. A memorandum order was filed on October 22, 1999, commemorating the verdicts and sentencing appellant on the crimes of which he was convicted. Appellant filed a notice of appeal on November 12, 1999, stating his intention to appeal Count I. Appellant separately filed a motion for a new trial on Count III and Count IV, which was file marked and dated simultaneously with his notice of appeal. The trial court did not act on that motion, and it was deemed denied on December 12, 1999. Ark. R. App. P.-Crim. (b)(2) (2000). Therefore, appellant had until January 11, 2000, to file a notice of appeal on the "deemed denied" motion in order to appeal an adverse ruling on this post-trial motion. See id. An untimely notice of appeal from the trial court's failure to allow a new trial was filed on January 21, 2000, and therefore we cannot address this argument. Id.; see also Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997).

Appellant's third argument on appeal is that the statute that permits enhancement of penalties for distribution of controlled substances on or within 1,000 feet of the real property of certain facilities, Ark. Code Ann. § 5-64-411 (Repl. 1997), is unconstitutionally vague. This argument was not presented to the trial court and is urged as a basis for reversal of Count IV for the first time on appeal. We do not address arguments, even constitutional ones, if they are not presented first to the trial court. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).

Because we cannot reach the merits of any point brought on appeal, we affirm.

Bird and Roaf, JJ., agree.