ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

MARIO HERNANDEZ

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1413

June 13, 2001

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[CR00-91]

HONORABLE FLOYD G. ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant, Mario Hernandez, was found guilty by a jury of the offenses of delivery of marijuana and delivery of cocaine. He was sentenced to serve forty-eight months on the marijuana charge and 120 months on the cocaine charge, with the sentences to run concurrently. We affirm.

For his first point of appeal, appellant contends that the trial court erred in refusing to give a lesser-included jury instruction of possession of marijuana and possession of cocaine. We do not address the issue because the requested instructions were not proffered, and the failure to proffer a requested instruction bars appellate review. Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). This is true even though the requested instruction is a standard AMCI jury instruction. See Henry v. State, 18 Ark. App. 115, 710 S.W.2d 849 (1986).

For his second point of appeal, appellant contends that the trial court abused its discretion in refusing to allow his counsel to comment to the jury on the fact that if he were convicted of the Class "Y" felony, it would take away any possibility of their recommendation of a suspended sentence to be considered by the court. We disagree.

The trial court "has a wide latitude of discretion in controlling the arguments of counsel, and its rulings in that regard are not overturned in the absence of clear abuse." Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993). Moreover, we do not consider assignments of error that are unsupported by convincing legal authority or argument unless it is apparent without further research that the argument is well taken. Tyrone v. Dennis, 73 Ark. App. 209, ____ S.W.3d ____ (April 4, 2001).

Here, appellant cites only two cases in support of his position, Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997), and Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996). Those cases are not specifically on point with respect to what he is arguing and are in no way controlling. He cites Teague for the proposition that "the legislature felt it was important for the jury to have a full understanding of the ramifications of its actions when deciding a criminal case." Teague involved a separation-of-powers argument, and while it emphasizes the General Assembly's desire for truth in sentencing, the case in no way holds that a defendant has the right during the guilt phase of a bifurcated proceeding to inform the jury of the severity of the punishment that would necessarily result from a finding of guilt. The Higgins case is cited for the proposition that a jury fixes punishment following the penalty phase and may recommend an alternative sentence, even though the trial court usesits discretion in the actual sentencing decision. As with Teague, Higgins does not support appellant's position.

In short, the bifurcated statute itself, Ark. Code Ann. § 16-97-101 (Supp. 1999), is clearly designed for separate considerations concerning a defendant's guilt and punishment. We see no basis for holding that the trial court abused its considerable discretion in refusing to allow appellant's counsel to inform the jury during closing argument of the guilt phase of the trial that convicting appellant of the Class "Y" felony would eliminate the possibility of recommending a suspended sentence to the court. See Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995) (rejecting argument that the bifurcated procedure deprived the appellant of a fair trial in violation of the Fourteenth Amendment because the jury was required to decide his guilt without knowledge of the consequences to him of a conviction and without regard to the punishment which would result based on the fact that appellant presented no authority for his due-process argument and our bifurcated-sentencing procedure had been upheld for habitual criminals).

Affirmed.