Opinion
No. CACR11-803
02-13-2013
SCOTT DAVID ASHCRAFT APPELLANT v. STATE OF ARKANSAS APPELLEE
Bob Frazier, for appellant. Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.
APPEAL FROM THE GRANT
COUNTY CIRCUIT COURT
[NO. CR2010-53-2]
HONORABLE PHILLIP H. SHIRRON,
JUDGE
AFFIRMED
ROBERT J. GLADWIN , Chief Judge
Scott David Ashcraft was convicted in Grant County Circuit Court of delivery of a controlled substance within 1000 feet of a church and sentenced to twenty-five years in the Arkansas Department of Correction. On appeal, he contends that the trial court erred in admitting certain evidence in violation of the best-evidence rule and in denying his motion for directed verdict. We affirm because neither argument was preserved for appeal.
Ashcraft was convicted of delivery of hydrocodone and sentenced to eighteen years, with an additional sentence of seven years for having delivered the drug within 1000 feet of a church. Ashcraft filed a timely notice of appeal, and Ashcraft's attorney filed a motion to withdraw and a no-merit brief. This court remanded the no-merit appeal for compliance with Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2011). Ashcraft v. State, 2012 Ark. App. 470. This appeal followed. Because double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence first, see Chunestudy v. State, 2012 Ark. 222, ___ S.W.3d ___, we consider Ashcraft's sufficiency argument prior to his best-evidence-rule argument. Our supreme court has set forth the well-settled standard of review for challenges to the sufficiency of the evidence:
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. We affirm a conviction if substantial evidence exists to support it. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture.Navarro v. State, 371 Ark. 179, 186, 264 S.W.3d 530, 535 (2007) (citations omitted).
Ashcraft contends that the testimony of the witnesses was inconsistent. Based on these inconsistencies, Ashcraft argues that the evidence was insufficient to find him guilty of delivery of hydrocodone within 1000 feet of a church. We hold that Ashcraft's motion for directed verdict did not preserve the argument for appeal because the motion was not specific. A general, nonspecific motion for direct verdict constitutes a waiver of appellate review of the sufficiency of the evidence. Sipe v. State, 2012 Ark. App. 261, __ S.W.3d ___. Ashcraft's counsel stated,
There's been insufficient testimony to enable the jury to find him guilty of delivery of a controlled substance, mainly Hydrocodone schedule 3, and distribution within or near a church to sustain any other charge whatsoever.When counsel renewed the motion at the close of appellant's case, a similar statement was made. Therefore, the trial court was not presented with an argument regarding inconsistent statements, and the argument was not preserved.
Ashcraft contends that the trial court's admission of a photograph violated Rule 1002 of the Arkansas Rules of Evidence (2012), as it was not the best evidence. He claims that it was unfair and prejudicial to him to admit the duplicate in lieu of the original because a genuine question was raised as to the authenticity. A trial court has broad discretion in evidentiary rulings, and this court will not reverse a trial court's ruling on the introduction of evidence unless the lower court has abused that discretion. Williams v. State, 2011 Ark. App. 675, 386 S.W.3d 609. Moreover, even when a circuit court errs in admitting evidence, the appellate courts will affirm a conviction and deem the error harmless if the evidence of guilt is overwhelming and the error is slight. Marmolejo v. State, 102 Ark. App. 264, 284 S.W.3d 78 (2008).
However, the State correctly maintains that this argument, also, is not preserved for appeal. It is a defendant's burden to obtain a clear ruling on his objection from the trial court, and when he fails to do so, the issue is not preserved for appeal. E.g. , Morrison v. State, 2011 Ark. App. 290. Moreover, to preserve an issue for appeal, an objection must be contemporaneous with the alleged error. E.g., Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007). Here, the trial court did not rule on Ashcraft's objection, and Ashcraft did not renew his objection when the photograph was introduced into evidence.
Affirmed.
PITTMAN and WALMSLEY, JJ., agree.
Bob Frazier, for appellant.
Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.