Jarvis Tim Hillard v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-116

June 29, 2005

JARVIS TIM HILLARD AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

v. [CR 03-1730]

STATE OF ARKANSAS HONORABLE WILLARD PROCTOR,

JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

A jury found appellant Jarvis Hillard guilty of possession of cocaine and possession of marijuana, third offense. Appellant was found to be a habitual offender with four or more convictions and sentenced to forty years' imprisonment.

Pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel's brief and notified of his right to file pro se points for reversal. Appellant has filed no points for reversal. We hold that this appeal lacks merit and grant counsel's motion to withdraw.

The facts of this case are as follows. On February 27, 2003, Officer Tim Files of the North Little Rock Police Department observed a white Cadillac crossing the Broadway Bridge into North Little Rock at a high rate of speed. Officer Files said that it had snowed earlier in the week and the bridge still had "quite a bit of ice and snow." Officer Files followed the vehicle and radioed for a patrol unit to initiate a traffic stop. Officers Wes Honeycutt and Michael Blevins of the North Little Rock Police Department initiated a stop. Upon stopping the vehicle, the officers made contact with appellant. Appellant had a suspended driver's license, and department policy called for the vehicle to be towed. Prior to having the vehicle towed, Officer Blevins performed an inventory search of the vehicle. In the back seat, Officer Blevins found a blue plastic bag that contained two substances. Officer Blevins suspected that one substance was crack cocaine and that the other substance was marijuana. In the front of the vehicle, Officer Blevins found a marijuana blunt in the ashtray.

A narcotics detective was called to take the evidence into custody and transport it to the police station. The evidence was secured until taken to the State Crime Laboratory for analysis. Analysis of the substances indicated that one was 16.5935 grams of cocaine base and that the other was 23.1 grams of marijuana.

On May 20, 2003, the State filed a two-count felony information alleging that on February 27, 2003, appellant had possessed cocaine with intent to deliver and possessed marijuana, third offense. The State also alleged that appellant was a habitual offender with four or more felony convictions. Following a September 25, 2003, jury trial, appellant was found guilty of possession of cocaine and possession of marijuana, third offense. The jury sentenced appellant as a habitual offender with four or more prior felony convictions to thirty years' imprisonment for having possessed cocaine. He was sentenced to ten years' imprisonment for third offense possession of marijuana. The jury recommended that the sentences be served consecutively, and the trial court followed the jury's recommendation. Appellant was thereby sentenced to forty years' imprisonment. From that decision comes this appeal.

This court considers arguments on the sufficiency of the evidence prior to the review of trial errors. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Therefore, the first adverse ruling that we will address is the denial of appellant's motion for directed verdict. A motion for directed verdict challenges the sufficiency of the evidence. Jenkins v. State, 350 Ark. 219, 85 S.W.3d 878 (2002). In order to contest the sufficiency of the evidence to support a conviction on appeal, the defendant must move for a directed verdict at the close of the prosecution and again at the close of all the evidence. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Moreover, in making his motion for directed verdict, a defendant must anticipate an instruction on lesser-included offenses and specifically address the elements of that lesser-included offense on which he wishes to challenge the State's proof in his motion. Id.

Appellant failed to preserve the denial of his motions for directed verdict for appellate review. First, appellant failed to renew his motion at the close of all the evidence; instead, he renewed his motion during the discussion of the jury instructions. Second and most importantly, appellant failed to address the elements of the lesser-included offense. At the close of the State's case, appellant moved for directed verdict arguing that the State had failed to show that appellant had possessed cocaine with intent to deliver. Appellant was convicted of possession of cocaine, a lesser-included offense. His motion failed to address possession of cocaine. Thus, this point is not preserved for appellate review.

The next adverse ruling is the trial court's denial of appellant's motion for mistrial. Whether to grant a mistrial is within the sound discretion of the trial court; we will not overturn the denial of a motion for a mistrial absent an abuse of discretion. Smith v. State, Ark. App. , S.W.3d (Mar. 16, 2005). An abuse of discretion occurs when the trial court makes a judgment call that is arbitrary and groundless. Id. In addition, a mistrial is a drastic remedy to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial and when the error cannot be cured by an instruction to the jury. Id. An admonition is the proper remedy where the assertion of prejudice is highly speculative. Jimenez v. State, 83 Ark. App. 377, 128 S.W.3d 483 (2003).

Prior to his case being called, appellant left the courtroom; while he was gone, his case was called. The trial court declared a recess until appellant was found. Upon his return, appellant was placed into handcuffs and escorted out of the courtroom. Appellant alleged that this was observed by some jurors. The trial court denied the motion but offered to instruct the jurors not to take appellant being in handcuffs into consideration. Appellant said that the instruction would be sufficient. Accordingly, appellant is unable to demonstrate that any prejudice resulted, and the trial court did not abuse its discretion when it denied the motion for mistrial.

The next adverse ruling occurred when the trial court denied appellant's motion for continuance. A motion for continuance is addressed to the sound discretion of the trial court, and the court's decision will not be reversed absent an abuse of discretion. Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998).

Prior to the start of his trial, appellant moved for a continuance because he was unable to locate a witness. Arkansas Code Annotated section 16-63-402 (1987) governs continuances and provides the following:

(a) A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant himself believes them to be true and that the witness is notabsent by the consent, connivance, or procurement of the party asking the postponement.

(b) If thereupon the adverse party will admit that on trial the absent witness, if present, would testify to the statement contained in the application for a continuance, then the trial shall not be postponed for that cause. However, the opposite party may controvert the statement so set forth in the motion for continuance by evidence.

Section 16-63-402 has been interpreted as requiring the presence of an affidavit in order to justify a continuance due to a missing witness. Clark v. State, Ark. , S.W.3d (Sept. 23, 2004). The denial of a continuance when a motion is not in substantial compliance with the statute is not an abuse of discretion, and the burden is on the appellant to establish prejudice and abuse of discretion in denying the continuance. Id.

Here, appellant failed to submit an affidavit in support of his motion for continuance. Therefore, his motion was not in substantial compliance, and the trial court did not abuse its discretion when it denied appellant's motion.

The next adverse ruling occurred when appellant raised a relevance objection to a question posed by a juror. This point is not preserved for appellate review. The trial court noted appellant's objection, but failed to make a ruling. It has been repeatedly held that a party's failure to obtain a ruling is a procedural bar to consideration of the issue on appeal. See Delaney v. State, 356 Ark. 259, 151 S.W.3d 301 (2004).

The last adverse ruling occurred during appellant's closing argument. The State raised an objection when appellant asserted that there was no evidence establishing whether he was an average user or even a user at all. The trial court instructed the jury to disregard the statement. The trial court has broad discretion in controlling trial counsel in closing arguments, and we will not disturb a trial court's ruling regarding an objection during closing arguments absent a manifest abuse of discretion. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). Appellant is unable to demonstrate an abuse of discretion; accordingly, this pointlacks merit.

The record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We have concluded that there were no errors with respect to rulings adverse to appellant and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed. Affirmed.

Gladwin and Baker, JJ., agree.