J. C. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

J. C.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA02-430

March 19, 2003

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. JV-2001-90]

HON. ROBERT B. GIBSON, JR.,

JUDGE

AFFIRMED

The appellant in this juvenile case was adjudicated delinquent for committing the offense of public sexual indecency. On appeal, he argues that the trial court erred by refusing to suppress appellant's custodial statement, and by denying appellant's motion for a continuance. We affirm.

Because appellant does not challenge the sufficiency of the evidence on appeal, a detailed recitation of the facts is unnecessary. The charges against appellant were based on evidence that he made unwanted advances on a girl in a tanning parlor and fondled her breast on September 11, 2001. An adjudication hearing was scheduled for October 3, 2001.

Appellant moved for a continuance of the October 3 hearing on the ground that a requested mental evaluation report would not be completed until after that date, and also

moved to suppress his custodial statement on the ground that his arrest for a misdemeanor not committed in the officer's presence constituted an illegal arrest. The trial court addressed the motions at the adjudication hearing. The trial court noted that the arresting officer was not present at trial because of a death in the family, but that he had testified in detail regarding the circumstances of the arrest at the detention hearing, where he was subject to cross-examination by appellant's attorney. He also noted that appellant had been placed on electronic monitoring, and that he did not like to leave a juvenile on an ankle bracelet any longer than necessary. With regard to the psychological report, the trial judge noted that it was unnecessary to have that to determine guilt or innocence, and stated that he was inclined to conduct the adjudication as scheduled and delay any dispensation of punishment until after the psychological report was available. Finally, the trial judge ruled on the motion for continuance, stating that:

Let's go with J.C. All right. The Court is denying the motion for continuance. I'm going to go on and try this case today. The motion to suppress, I'll rule on that if and when any statements are offered with respect to any the defendant may have made. It may be that the State doesn't even need to offer the statements.

Subsequently, appellant's statement was introduced without further objection and without the trial court having ruled on the suppression motion.

We are unable to address appellant's argument relating to the suppression motion because it is not properly before us. It was appellant's burden to obtain a ruling on his motion to suppress in order to preserve a point of appeal with respect to it. Bowen v. State,322 Ark. 483, 911 S.W.2d 555 (1995). In the absence of a ruling on this motion, there is nothing for us to review.

With respect to his contention that the trial court erred in denying his motion for a continuance, appellant has abandoned his argument regarding the lack of the psychological report and, on appeal, relies solely on the absence of the arresting officer to argue that a continuance should have been granted. We find no reversible error.

The grant or denial of a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of that discretion. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). An appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). Here, appellant's arguments for continuance are based wholly on his assertion that the testimony of the arresting officer would have demonstrated that his custodial statement was illegally obtained. However, as we noted in our discussion of the previous point, appellant failed to obtain a ruling on his motion to suppress, and thereby waived any argument relating to it. Under these circumstances, appellant simply cannot demonstrate that he was prejudiced by the absence of the arresting officer, and we must therefore affirm.

Affirmed.

Hart and Gladwin, JJ., agree.