NOT DESIGNATED FOR PUBLICATION

DIVISION IV

Arkansas Court of Appeals

Judge Larry Vaught

Not Designated for Publication

ANTHONY STEPHENS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1338

October 24, 2001

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

CR99-103

HON. LANCE HANSHAW, JUDGE

AFFIRMED

Appellant was charged with possession of a controlled substance (methamphetamine) with intent to deliver in violation of Ark. Code Ann. § 5-64-410 (Repl. 1997). He was also charged as a habitual offender in an amended information. A jury found him guilty, and he was sentenced to fifty years' imprisonment in the Arkansas Department of Correction. In addition to challenging the sufficiency of the evidence, he argues that the trial court erred in allowing certain expert testimony. We affirm.

We first address appellant's argument that the trial court erred in denying his motion for a directed verdict because the State did not present sufficient evidence to prove possession of a controlled substance with intent to deliver. Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Harris v. State, 73 Ark. App. 185, 44 S.W.3d 347 (2001). When the sufficiency of the evidence is challenged, the appellate court considers only that evidence which supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of such certainty and precision as to compel aconclusion one way or another. Id.

Officer Steve Rich, a special crimes officer for the Lonoke County Sheriff's Department, testified that he was making a traffic stop when he saw appellant throw an object out of the car. He retrieved the object and upon opening it discovered that it was the finger of a latex glove filled with an off-white powder substance he suspected to be drugs. He delivered it to Officer Ken Larkins at the sheriff's department who then took it to the Arkansas State Crime Lab for analysis. The chemist from the state crime lab testified that the substance weighed 4.308 grams and was a combination of methamphetamine and ephedrine. He indicated that thirty-eight percent of the substance was pure methamphetamine. Possession of more than 200 milligrams of a stimulant drug gives rise to a rebuttable presumption of intent to deliver. Ark. Code Ann. § 5-64-401(d) (Repl. 1997). Methamphetamine falls within this category. See Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). The amount of methamphetamine found in appellant's possession exceeded the statutory presumption. The physical evidence alone is sufficient for us to affirm appellant's conviction of possession of a controlled substance with intent to deliver. See Rabb, supra.

Appellant also argues that the trial court erred when it allowed Officer Rich, over the objections of counsel, to testify as an expert concerning the cash denominations which a drug dealer would possess and the typical amount of methamphetamine an individual would use. On appellate review, we will not reverse a ruling on an evidentiary matter regarding the admissibility of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001).

Appellant failed to preserve his argument that the trial court erred in allowing Officer Rich to testify as an expert concerning the cash denominations that a drug dealer would possess. The law is well settled that to preserve an issue for appeal a defendant must object at the first opportunity. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). In Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998), the supreme court stated that a party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id. Page thirteen of appellant's abstract indicates that Officer Rich testified that upon searching appellant, he found $240 in cash, consisting of twenty-dollar bills, ten-dollar bills, and one-dollar bills. Officer Rich was questioned about whether he found it unusual that appellant had $240 in cash on his person; however, appellant made no objection. In fact, appellant did not object until the State inquired about the amount of methamphetamine an average individual would use. Thus, we conclude that appellant failed to preserve his objection to Officer Rich's testimony about the denominations of money found on appellant's person.

Appellant also failed to preserve his general objection to Officer Rich's testimony concerning the average amount of methamphetamine used by an individual. While appellant's abstract indicates his objection was overruled, the State's supplemental abstract indicates that during the bench conference, the appellant argued that the State needed to lay a foundation for the testimony. The objection was sustained by the trial court, requiring the State to lay the proper foundation. The State then laid a foundation for Officer Rich's testimony, which was apparently found acceptable by appellant because he did not object further when Officer Rich was again asked how much methamphetamine an individual would use. Because appellant received the relief that he requested, he has no basis upon which to raise the issue on appeal. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). In addition, when a question is repeated, and there is no objection, the matter is waived. Id.

Affirmed.

Pittman and Neal, JJ., agree.