Johnson v. State
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Cite as 2010 Ark. App. 669
ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR10-113
Opinion Delivered
ROBERT EUGENE JOHNSON
APPELLANT
October 6, 2010
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FIFTH DIVISION [CR-2008-3078]
V.
HONORABLE WILLARD
PROCTOR, JR., JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
DAVID M. GLOVER, Judge
Appellant Robert Johnson was tried by a jury and found guilty of the offenses of
possession of cocaine with intent to deliver and resisting arrest. He was sentenced as an
habitual offender to forty years in the Arkansas Department of Correction on the possession
conviction. He was sentenced to one year in the county jail on the resisting arrest conviction,
which will be satisfied by his forty-year imprisonment. As his sole point of appeal, he
contends that the trial court abused its discretion in allowing a State-offered instruction,
concerning flight as evidence of guilt, to be given to the jury. We do not address the merits
of appellant’s argument because it was not preserved for our review.
Cite as 2010 Ark. App. 669
Background
The instruction given by the trial court and challenged by appellant in this appeal is:
EVIDENCE OF FLIGHT AS CORROBORATION OF GUILT
Evidence that the defendant fled to avoid arrest or detection by the police may
be considered by you in your deliberations as a circumstance in corroboration of
evidence tending to establish the guilt of the defendant.
There was limited discussion about the challenged instruction at trial:
T HE C OURT: This is the non-AMCI. Okay, that flight is evidence of guilt.
D EFENSE C OUNSEL: And, Your Honor, that’s the one that we’re objecting to. We
just find that it’s prejudicial, and, of course, they have to put their case on.
T HE C OURT: Okay. Right. I’ll give this over objection. So that non-AMCI
will be given of flight. I thought that was an AMCI, but I guess there’s not.
D EPUTY P ROSECUTING A TTORNEY: I don’t believe there is.
T HE C OURT: Okay. But, yeah, that is a correct statement of law that flight is
some evidence of guilt.
(Emphasis added.)
Thus, at trial, the extent of appellant’s argument in objection to this instruction was
that “it’s prejudicial.” He also contemplated that “they have to put their case on,” i.e., that
the proof might not support the instruction; however, no further objection was ever made.
The argument on appeal is that the non-AMI instruction “emphasized a specific fact that the
State relied on to prove appellant Johnson’s guilt . . . .” 1 That argument is entirely different
1
As noted in the State’s brief, “Appellant does not allege that the trial court erred by
giving the flight instruction because it was a non-model instruction, it ran afoul of the model
instructions themselves, it did not accurately state the law, or there was not a rational basis in
the evidence for giving it.”
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Cite as 2010 Ark. App. 669
from the one presented at trial. Consequently, it was not preserved for this court’s review,
and we do not address the merits of the argument. Evans v. State, 326 Ark. 279, 931 S.W.2d
136 (1996).
Affirmed.
G LADWIN and A BRAMSON, JJ., agree.
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