Fahim Rashad v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CACR01-780

SEPTEMBER 25, 2002

FAHIM RASHAD AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT v. [00-3196]

STATE OF ARKANSAS HONORABLE JOHN B. PLEGGE,

JUDGE

APPELLEE

REVERSED and REMANDED

On July 27, 2000, Little Rock police officers observed appellant, Fahim Rashad, drive away from a known drug house. After appellant failed to signal, the officers stopped appellant and requested identification. When appellant was unable to produce identification, the officers requested that appellant exit the vehicle. Officer Annette Harrington began a safety pat-down of appellant. She testified that appellant became loud and belligerent and tried to jerk away from her. Officer Tory Cobb observed that appellant was chewing on something and told Officer Harrington that appellant had something in his mouth. When appellant became too aggressive and defensive, Officer Cobb used pepper spray to subdue him. As the officers handcuffed the appellant, Officer Cobb noticed appellant "spit two different plastic bags out of his mouth onto the ground along with an off-white rocksubstance that looked like crack cocaine."

Appellant was subsequently charged with possession of cocaine with intent to deliver and tampering with physical evidence. When appellant's case was called for trial on March 5, 2001, appellant had hired a private attorney that morning to represent him. The public defender moved to be relieved as counsel, and the trial court promptly granted his motion. Appellant's new attorney then moved for a continuance and the trial court denied his motion. During the bench trial, the crime lab chemist testified that the exhibits he tested were comprised of 0.90 gram and 0.012 gram of cocaine base, or a total weight of 0.912 gram. His report, however, indicated that the exhibits tested 0.190 gram and 0.012 gram for a total weight of 0.202 gram cocaine base. Appellant's counsel did not cross-examine the chemist. Following the close of the State's case, defense counsel moved for a directed verdict, arguing that the State had failed to adduce substantial evidence that appellant had possessed cocaine or that he tampered with any evidence. The trial court granted the motion as to the tampering with physical evidence charge. A general renewal was offered at the close of all of the evidence. The trial court denied the motion and found appellant guilty of possession of cocaine with the intent to deliver. Appellant was sentenced to fifty-four months in the Arkansas Department of Correction. This appeal followed.

On appeal, appellant argues that (1) the trial court erred in denying appellant's motion for continuance, thereby denying appellant's new counsel adequate opportunity to prepare for trial; and (2) the trial court erred in finding appellant guilty of possession of cocaine with intent to deliver, as there was no evidence of intent to deliver and the quantity wasinsufficient to raise the statutory presumption. Finding that the trial court abused its discretion in denying appellant's motion for a continuance, we reverse and remand.

Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). For double-jeopardy reasons, we consider a challenge to the sufficiency of the evidence before other points on appeal. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002); Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002); Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). The State contends that appellant's claim that the trial court erred in finding appellant guilty of possession of cocaine with intent to deliver is barred. We agree.

In order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Gardner v. State, 76 Ark. App. 258, 64 S.W.3d 761 (2001) (citing Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998)). An appellant must raise and make an argument at trial in order to preserve it on appeal. See generally Halford v. State, 342 Ark. 81, 88, 27 S.W.3d 346, 351 (2000). Arguments not raised at trial will not be addressed for the first time on appeal. Hutcherson v. State, supra. 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. Hutcherson v. State, supra.

Arkansas Code Annotated section 5-64-401 (Suppl. 2001) provides that "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver acontrolled substance." At the close of the State's case, counsel for the appellant made his motion for a directed verdict, stating,

Your Honor, at this time we would have a motion for directed verdict. I don't think the State has provided substantial evidence that my client did, in fact, possess cocaine; nor have they provided any substantial evidence that he tampered with the evidence. There's been no evidence provided that my client did anything with regard to tampering, that my client hid anything in his mouth that wasn't there when they stopped him, that he chewed, that he did anything to try and destroy it. In fact, based on the testimony provided, he arguably showed it to them and gave it up while he was coughing. (See R. 34-35).

This motion only challenged appellant's possession of drugs; hence, as the State correctly states, appellant's sufficiency argument is not preserved. Appellant failed to make a specific motion for a directed verdict that challenged the intent element of the crime.

Rashad next argues that the trial court erred in denying appellant's motion for continuance, thereby denying appellant's new counsel adequate opportunity to prepare for trial. We agree with appellant's contention; therefore, we reverse and remand on this point.

In order to prevail upon his allegations that the trial court's refusal to grant a continuance was reversible error, appellant must show that the trial court abused its discretion in denying the continuance and that the denial of a continuance constituted prejudice to his defense. See Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002); Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999). A last minute change in counsel may occasion or require a continuance in order to give the attorney time to prepare. Butler v. State, supra. A factor to be considered by the trial court in making the determination whether to grant a request to substitute counsel is whether the change in counsel will necessitate a continuance. Once the trial court has determined that a change of counsel is to be permitted, the new counsel must be accorded sufficient time to prepare for trial. Butler v. State, supra. The supreme court pronounced in Butler v. State, supra, that

We have previously gone so far as to look beyond whether the appellant specifically requested a postponement of his trial, approving a trial court's treating a request for substitution of counsel as a motion for a continuance, `since a change of attorneys so close to trial would have required the granting of one.'

Butler v. State, 339 Ark. at 433 (citing Greene v. State, 335 Ark. 1, 977 S.W.2d 198 (1998)). We must conclude that, once the change in counsel was permitted, it was an abuse of discretion to deny new counsel adequate time to prepare. We therefore reverse and remand this case for a new trial on the charges for which appellant has been convicted.

Reversed and Remanded.

Bird and Baker, JJ., agree.