Angela Denise Wilson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR05-597

JANUARY 25, 2006

ANGELA DENISE WILSON AN APPEAL FROM THE CRAWFORD

APPELLANT COUNTY CIRCUIT COURT [CR-2004-349]

V.

STATE OF ARKANSAS HONORABLE MICHAEL MEDLOCK, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

A Crawford County jury sentenced appellant Angela Denise Wilson to 240 months' imprisonment and a $5000 fine for possession of marijuana with intent to deliver, possession of drug paraphernalia, and simultaneous possession of drugs and a firearm. On appeal, appellant does not challenge the sufficiency of the evidence supporting her conviction; rather, she argues that the trial court erred in denying her motion to suppress. We affirm.

On June 30, 2004, Trooper Olin Craig observed a weaving car traveling along Interstate 40. He encountered appellant when he stopped the vehicle. Appellant presented her license with an Atlanta, Georgia address and a rental car contract from Thrifty Car Rental in Atlanta, Georgia. After a preliminary investigation, Trooper Craig developed some suspicions and requested consent to search. Appellant granted that consent, and two duffel bags containing marijuana were found.

At trial, appellant made a "motion to dismiss" on the bases that "there was no probable cause to stop appellant, and after the stop and the warning ticket no probable cause to even ask for consent to search"; that Trooper Craig "asked for a consent to look, not to search," and therefore exceeded the scope of consent given him; and that "on the totality of the evidence that has been presented here the court should dismiss the case." The motion was overruled. Appellant renewed her motion at the close of all the evidence based only upon probable cause and the scope of consent. The motion was again denied.

On appeal, appellant advances the same arguments she did below. The State contends that appellant's claim that the trial court erred in denying her motion to suppress is not preserved for appellate review. In making this argument, the State relies on Holt v. State, 15 Ark. App. 269, 692 S.W.2d 265 (1985). In Holt, supra, the appellant was convicted of driving while intoxicated, and at the close of the evidence, he moved for a judgment of acquittal stating that the officer lacked probable cause to stop him. We held that appellant's motion for acquittal for lack of probable cause was, in reality, a motion to suppress the evidence coupled with a motion for directed verdict, and that the motion was not timely made. Motions to suppress are governed by Rule 16.2 of the Arkansas Rules of Criminal Procedure, and section (b) of this rule requires that a motion to suppress be timely filed, but not later than ten days before trial, except that the trial court has discretion to allow a later motion to suppress on a showing of good cause. Our courts have, under certain circumstances, excused the failure to file a written notice to suppress a full ten days before trial. See Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992); Vega v. State, 26 Ark. App. 172, 762 S.W.2d 1 (1988). However, in those cases, the defendants did move to suppress the evidence prior to the beginning of their trials and certainly before the evidence was introduced.

In the present case, no motion to suppress was filed prior to trial, and no attempt was made to demonstrate good cause for waiting until her motion to dismiss and renewed motion to dismiss to attempt to exclude a portion of the evidence that was presented without objection during the trial. Those motions were, in reality, motions to suppress the evidence coupled with a motion for directed verdict that was both lacking in specificity and not renewed. Therefore, the attempt to suppress the evidence was not timely and cannot now be considered by this court on appeal. See Rideout v. State, 22 Ark. App. 209, 737 S.W.2d 667 (1987); Holt, supra.

Affirmed.

Robbins and Roaf, JJ., agree.