Jeremiah Estelle v. State of Arkansas

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ar04-151

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JEREMIAH ESTELLE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-151

November 17, 2004

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

[NO. CR-2003-1(JF)]

HONORABLE JOHN NELSON FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

According to an order filed March 3, 2003, appellant, Jeremiah Estelle, pleaded guilty to possessing on December 4, 2002, a controlled substance, Alprazolam, with the intent to deliver. The circuit court placed him on probation for thirty-six months. On May 21, 2003, the State filed a petition for revocation alleging that appellant violated the conditions of probation by possessing on April 17, 2003, Alprazolam with the intent to deliver. At the revocation hearing, the court revoked appellant's probation and sentenced him to twenty-four months' imprisonment to be followed by a suspended imposition of sentence for sixty months. On appeal, appellant argues that the court erred at the revocation hearing by permitting the State to elicit testimony relating to the details of the crime for which he was placed on probation. As we conclude that no error was committed, we affirm.

To summarize the State's evidence at the revocation hearing, the State's witnesses testified that on April 17, 2003, during a probation home visit, police officers conducted a search of appellant's room and found on a coffee table a small lock box containing thirty-five tablets of Alprazolam. The pills were in a cellophane wrapper from a cigarette package.

Appellant's witness, his mother, Brenda Estelle, testified that one of her past prescribed medications was Alprazolam. She stated that her ex-husband and appellant's father, James Estelle, assisted her in taking the medication. To prevent her from taking too much medication, after laying out the medicine she was to take, "he would put the rest like in a cigarette package, and he would hide it in the house." On cross-examination, she testified that she was aware that appellant was on probation for possessing Alprazolam at school on December 4, 2002. Counsel for appellant subsequently objected to this testimony, arguing that it "pre-dates that" and was not relevant.

James Estelle, who resides at the residence where the search was conducted, testified that when his ex-wife would receive a prescription of Alprazolam, he would remove it from the bottle, hide it in various places around the house, and give it to her as needed. He further testified that he put some of the Alprazolam in the lock box and forgot that he had done so when he gave the box to appellant. He stated that he gave the box to appellant two, three, or four days before the search. On cross-examination, he testified that he was aware that appellant was on probation for possessing Alprazolam with the intent to deliver while at Gosnell Senior High School. He further testified that he put the Alprazolam in a cigarette wrapper.

Appellant testified that he, his fiancé, and his brother lived in the bedroom. He also testified that his father had given him the lock box two or three days before the police arrived. Further, he stated that he did not have any involvement with any drugs in the house and was surprised that anything was found there.

On cross-examination, appellant testified that he was on probation for possessing twenty-two tablets of Alprazolam while at Gosnell Senior High School. Further, he testified that the principal at the school saw him pass the tablets in a cellophane cigarette package to another student. Counsel for appellant stated that he objected "to something that completely predated this." He commented, "I don't know if [the State] is trying to prejudice this Court with something that happened prior to this." He further stated that the evidence was not relevant. The court overruled the objection, and appellant testified that it was just a coincidence that the pills found in his room were wrapped in a cellophane cigarette package. He further testified that he had not looked in the lock box.

Appellant contends that the court erred in permitting the State to elicit testimony about the details of the crime for which he was on probation, that is, his possession on December 4, 2002, at Gosnell High School, of twenty-two tablets of Alprazolam, which were wrapped in a cellophane cigarette package. Citing Rules 403 and 404(b) of the Arkansas Rules of Evidence, he argues that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice and that the State's purpose in presenting this testimony was to prove his bad character and show that he acted in conformity therewith. Further, he asserts that the details of the conviction were irrelevant. Particularly, he criticizes the court's decision to allow the State to elicit testimony that the crime was committed on school grounds.

We note that at the revocation hearing, appellant did not cite any rule of evidence supporting exclusion of the testimony and argued only that the evidence was not relevant. Further, appellant did not make any objection at the hearing regarding the mentioning of the school grounds. We do not consider arguments raised for the first time on appeal. See, e.g., Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000). Thus, his arguments based on Rules 403and 404(b) and his argument relating to the mentioning of the school grounds are not preserved for appellate review. In any event, other than those rules with respect to privileges, the rules of evidence do not apply to proceedings for granting or revoking probation, and hence, his reliance in this case on the rules of evidence is misplaced. See Ark. R. Evid. 1101(b)(3) (2004).

We are left then with appellant's claims that the testimony was not relevant. Though not cited by appellant, our statutes do provide that, at the revocation hearing, "[t]he court may permit the introduction of any relevant evidence of the alleged violation, including letters, affidavits, and other documentary evidence, regardless of its admissibility under the rules governing the admission of evidence in criminal trials." Ark. Code Ann. § 5-4-310(c)(2) (Repl. 1997).

In considering the relevancy of the evidence, we note that the Arkansas Supreme Court has previously addressed whether a court may admit evidence of prior, uncharged marijuana sales at a trial on charges of delivery of marijuana, possession of marijuana with the intent to deliver, and possession of drug paraphernalia. Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995). There, the court held that evidence of prior marijuana sales was admissible to negate the defendant's testimony that the marijuana was planted at his residence by some other person. The court noted that, in view of the defendant's claim "that he had no knowledge of the presence of the marijuana in his home, the evidence of prior sales was relevant to cast grievous doubt upon his testimony." Id. at 493, 898 S.W.2d at 443. The court further found that the evidence was not unfairly prejudicial.

Here, through his own testimony and the testimony of his witnesses, appellant attempted to establish that he did not have any knowledge of the Alprazolam found in his room on April 17, 2003. Rather, the evidence presented by appellant was that the Alprazolam was placed in the lock box by his father, who was hiding the medicine from his mother, and that appellant was surprised by the discovery of Alprazolam in the lock box. Given this testimony, appellant's possession, just months earlier, of the same controlled substance, wrapped in similar packaging, was relevant to cast grievous doubt upon his testimony that he had no knowledge of the Alprazolam found in his room on April 17, 2003.

Affirmed.

Pittman and Vaught, JJ., agree.