Roderick M. Bradford v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN MAUZY PITTMAN, CHIEF JUDGE
DIVISION III
CACR07191
November 7, 2007
RODERICK M. BRADFORD
APPELLANT
V.
APPEAL FROM THE ARKANSAS
C O U N T Y C I R C U I T C O U R T ,
NORTHERN DISTRICT [NO. CR2005
80]
HON. DAVID G. HENRY,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
The appellant, Roderick M. Bradford, was charged with possession of cocaine with
intent to deliver, possession of drug paraphernalia, and unauthorized use of another’s
property to facilitate a crime. All of the charges were tried in a single trial. The jury
acquitted appellant of possession of cocaine with intent to deliver and possession of drug
paraphernalia, and convicted him of unauthorized use of another’s property to facilitate a
crime. On appeal, appellant argues that the evidence was insufficient to support his
conviction and that the trial court erred in permitting a police officer to testify that a
confidential informant made a controlled drug buy from appellant’s residence. We affirm.
Arkansas’s Criminal Gang, Organization, or Enterprise Act provides in part that a
person commits the offense of unauthorized use of another person’s property to facilitate a
crime when he knowingly uses the property of another person to facilitate in any way the
violation of a predicate criminal offense without the owner’s knowledge. Ark. Code Ann.
§ 574105(a)(1) (Repl. 2005). A “predicate criminal offense” means any violation of
Arkansas law that is a crime of violence or pecuniary gain. Ark. Code Ann. § 574103(4)
(Repl. 2005).
There was evidence at trial that appellant lived in a rental house with his brother
Donald. After a confidential informant performed a controlled buy of cocaine from the
rental house, police obtained a search warrant. While conducting the search, police found
that a security camera monitored the only approach to the residence. Donald had a quantity
of cocaine and over $5000 in cash on his person. Another man in the house had a bag of
marijuana in his possession. No drugs were found on appellant’s person, but he did have
over $1000 in cash, including two $500 bundles secured by rubber bands. In addition, a
digital scale was found adjacent to appellant’s identification card on the bar. Appellant
admitted that he lived in the house with his brother. Walter Kibble, the owner of the rental
house, testified that he did not know about and would not have permitted any drugrelated
activity at the house.
Appellant argues that, because the jury acquitted him of the charges of possession of
cocaine with intent to deliver and possession of drug paraphernalia, there was no “predicate
criminal offense” to support his conviction for unauthorized use of another’s property to
facilitate a crime. The essence of his argument is that his conviction must be reversed
because the jury’s verdicts were inconsistent. We find no error.
First, it is uncertain that appellant’s argument, which was never presented to the trial
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CACR07191
court, is properly before us. In considering a similar issue regarding inconsistent verdicts in
Meadows v. State, 360 Ark. 5, 199 S.W.3d 634 (2004), our supreme court raised but did not
decide the question of whether an objection at trial was necessary to preserve the argument
for appellate review. In any event, as was the case in Meadows, supra, appellant’s argument
is without merit.
A jury verdict need not be consistent. It may convict on some counts but not on
others, and may convict in different degrees on some counts because of compassion or
compromise, and not solely because there was insufficient evidence of guilt. Jordan v. State,
323 Ark. 628, 917 S.W.2d 164 (1996). The appellant in United States v. Powell, 469 U.S.
57 (1984), had been convicted of soliciting a conspiracy by telephone to possess and to
distribute cocaine but was acquitted of the lesserincluded offense of conspiracy to possess
and to distribute cocaine. She attacked her conviction for the telephone solicitation counts,
arguing that she had been acquitted of one of the elements of that offense because the
verdicts were inconsistent. The Supreme Court disagreed and held that inconsistent verdicts
were permissible in the same trial where there is a conviction on the compound offense but
acquittal on the predicate offense.
The law is clear that a defendant may not attack his conviction on one
count because it is inconsistent with an acquittal on another count. Res
judicata concepts are not applicable to inconsistent verdicts; the jury is free to
exercise its historic power of lenity if it believes that a conviction on one count
would provide sufficient punishment.
McVay v. State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v.
Romano, 879 F.2d 1056 (2d Cir. 1989) (citations omitted)). Here, as in Powell, supra,
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CACR07191
appellant’s acquittal on the predicate offenses of possession of contraband does not
invalidate his conviction on the compound offense of unauthorized use of another’s property
to facilitate a crime.
Appellant next argues that the trial court erred in permitting a police officer to testify
regarding the activities of a confidential informant because to do so would deprive appellant
of his right to confront and crossexamine the confidential informant. This issue was not
raised at trial. A party is bound by the scope and nature of the arguments made at trial and
cannot change grounds for an objection or argument on appeal. Linn v. State, 84 Ark. App.
141, 133 S.W.3d 407 (2003). Appellant’s objection at trial was squarely and solely based
on his assertion that the police officer’s testimony was hearsay. A hearsay objection is not
sufficient to preserve a Confrontation Clause argument for appeal. Gatlin v. State, 320 Ark.
120, 895 S.W.2d 526 (1995); Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). An
argument not made at trial is not preserved for appellate review. Linn v. State, supra.
Affirmed.
GRIFFEN and MARSHALL, JJ., agree.
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CACR07191
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