Michelle King v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MICHELLE KING

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-98

September 3, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2002-1591]

HONORABLE JOHN PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Appellant Michelle King appeals her conviction for possession of a controlled substance and possession of paraphernalia. For reversal, she argues that the trial court erred in denying her motion to suppress the contraband found as a result of an illegal search. Appellant failed to preserve this issue, and thus, we affirm without addressing the merits.

On May 10, 2002, the State filed a two-count information charging appellant with possession of cocaine and possession of drug paraphernalia. On July 17, 2002, appellant filed a motion to suppress. However, the court neither held a hearing on the motion nor ruled on it prior to the close of the State's case at a bench trial on September 30, 2002. At trial, Officer Phillip Marsh testified that on March 12, 2002, he was patrolling an area that he knew was a frequent location for "dopers and prostitutes." He stated that he saw someone he knew to be a "dope seller" and chased the individual into one side of a nearby abandoned duplex. During the pursuit of this person, he ran into the other side of the duplex where he first noticed appellant, a "known prostitute and narcotics user," lying on a couch. He noted that he was approximately four feet from appellant when he saw her place a plastic bag in her pocket and then pretend to be asleep. After detaining appellant, Officer Marsh conducted a search and retrieved from her pocket the plastic bag containing what was later identified as crack cocaine. He also found on appellant a crack pipe.

Lori Stacks, a drug analyst from the Arkansas State Crime Lab, testified as a witness for the State that she tested the substance from the bag and found it to be cocaine. Further, she stated that the paraphernalia seized from appellant tested positive for cocaine residue.

After the State rested its case, appellant elected not to present any evidence but did make a motion to dismiss, arguing that the arresting officer did not have grounds to stop appellate under either Arkansas Rules of Criminal Procedure 2.2 (which grants officers the authority to request cooperation from a person) or under Rule 3.1 (which allows officers to stop and detain a person who they reasonably suspect has committed a felony or a misdemeanor involving forcible injury to persons or property). Appellant also argued that a chain of custody had not been preserved. The trial court denied all of appellant's motions, found her guilty as charged, and sentenced her to twelve years on each count to be served concurrently.

On appeal, appellant argues that the trial court erred in denying her motion to suppress the evidence of the cocaine and paraphernalia because the evidence was the result of an unreasonable search. Citing Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998), appellant asserts that the State had failed in its burden of establishing the legitimacy of the officers' presence in the duplex. In Fultz, the court summarized the plain-view exception to the warrant requirement by stating:

Assuming that the police do not violate the Fourth Amendment in arriving at the place where the object can be plainly viewed, to justify a warrantless seizure, first, the object must be in plain view and its incriminating character must be "immediately apparent." Second, the officer must be lawfully located in a place to plainly view the object and must have a lawful right of access to the object.

Id. at 593, 972 S.W.2d at 224-25 (citations omitted).

Generally, to preserve an argument for appeal, there must be a contemporaneous objection in the trial court that is sufficient to apprise the trial court of the particular error alleged. Cole v. State, 68 Ark. App. 294, 297, 6 S.W.3d 805, 807 (1999). However, "although a contemporaneous objection is not required in a bench trial ... a motion to suppress must at least be orally raised or renewed at the beginning of trial." Id. at 297, 6 S.W.3d at 807. In Cole, the record reflected that prior to trial, Cole had filed a motion to suppress. At the bench trial after the State rested its case, Cole orally moved to suppress the evidence and dismiss the charges. The trial court denied the motion. On appeal from the denial of the motion to suppress, the court noted that there was nothing in the abstract or the record showing that the trial court had ruled on the written motion to suppress prior to the start of trial and that Cole did not make an oral motion until the State had rested. The court in Cole held that "[i]t is the responsibility of the appellant to bring forth a record that demonstrates error." Id. at 296-97, 6 S.W.3d at 807.

In the present case, there is nothing in the abstract or the record showing that the trial court ruled on appellant's written motion to suppress prior to the start of trial. Appellant did not make an oral motion to suppress and to dismiss the charges until after the State had presented its evidence and had rested its case. Commensurate with the holding in Cole, we hold that appellant's argument was not preserved for appellate review. Therefore, we affirm.

Affirmed.

Pittman and Robbins, JJ., agree.