Jeffery Lynch v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-783

February 25, 2004

JEFFERY LYNCH AN APPEAL FROM MILLER

APPELLANT COUNTY CIRCUIT COURT

[CR01-569-2-A]

V. HON. JAMES SCOTT HUDSON, JR.,

JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Jeffrey Lynch appeals his conviction for the crime of murder in the first degree, from which he was sentenced to thirty-seven years in the Arkansas Department of Correction. Appellant contends that the trial court erred by instructing the jury on prior convictions during the sentencing phase of the trial. We hold that appellant failed to preserve a challenge for appellate review. Thus, we affirm.

After the jury returned a guilty verdict in appellant's criminal case, the trial judge discussed jury instructions with the prosecutor and counsel for the appellant. In an attempt to include an instruction on the appellant's prior convictions, the prosecutor presented certified copies of judgments of conviction of crimes committed by appellant in Texas. The judge asked the counsel for the appellant if he had any objections. His response was "as long as they are certified copies." After the prosecutor asserted that the copies were certified, the judge asked if the appellant objected to the admissibility of misdemeanors. Appellant's counsel responded by asking, "What's the theory of the misdemeanors?" The prosecutor cited Ark. Code Ann. § 16-97-103(2) (Repl. 1997), and there was no other discussion on the matter.

Appellant now argues, for the first time based on our review of the record, that the trial court erred in instructing the jury on prior convictions during the sentencing phase of the trial. We will not reverse a trial court's ruling on an evidentiary matter absent an abuse of discretion. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). "It is well settled that to preserve an issue for appeal, the trial court must be apprised of the particular error alleged." T & T Chemical, Inc. v. Priest, 351 Ark. 537, 540, 95 S.W.3d 750, 753 (2003). Furthermore, the supreme court has held that an appellant may not change the basis for its argument or raise issues for the first time on appeal. Id.

We hold that appellant's argument has not been preserved for appellate review. Although appellant argues that he challenged the trial court's instruction by asking "What's the theory of the misdemeanors?," that assertion is incorrect. He did not object to the misdemeanors being mentioned at trial. There is no evidence that the trial court was apprised of any objection to the instruction proposed by the prosecution, and nothing in the record indicates that appellant suggested an alternative instruction as more appropriate. Further, appellant now concedes that Ark. Code Ann. § 16-97-103(2) permits prior felony and misdemeanor convictions to be brought to the attention of the jury. Thus, appellant not only failed to assert an objection to the instruction at trial, his brief admits that the trial court was authorized to inform the jury about his previous felony and misdemeanor convictions based on the controlling statutory authority.

Affirmed.

Robbins and Neal, JJ., agree.