NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CACR00-1466

NOVEMBER 20, 2002

JAMES DEAN ODOM AN APPEAL FROM THE SALINE APPELLANT COUNTY CIRCUIT COURT

v. [CR99-240-2]

STATE OF ARKANSAS HONORABLE GARY ARNOLD,

APPELLEE JUDGE

AFFIRMED

A Saline County jury found James Dean Odom guilty of the following: (1) possession of a controlled substance with intent to deliver; (2) manufacture of a controlled substance; (3) simultaneous possession of drugs and firearms; (4) possession of drug paraphernalia; and (5) felon in possession of a firearm. He was sentenced to 360 months in the Arkansas Department of Correction, fined $10,000, and assessed $150 in court cost.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Odom's counsel filed a motion to withdraw on the ground that the appeal is without merit. The motion was accompanied by a brief referring to everything in the record that might arguably support an appeal.1 The clerk of this court furnished Odom with a copy of counsel's brief and notified him of his right to file pro se points for reversal. Odom did not file points for reversal.

On April 7, 1999, the Benton Police Department executed a search warrant on Odom's home after his daughter reported that he was selling marijuana from his home. During the search, the officers seized approximately 47.95 pounds of marijuana, approximately 557 growing marijuana plants, approximately 1,000 marijuana seeds, two pipes, eight hemostats, scales, four rifles, two shotguns, and two pistols. The officers also recovered $973 from Odom's wallet. Odom was charged with possession of a controlled substance, simultaneous possession of drugs and firearms, possession of drug paraphernalia, felon in possession of a firearm, and maintaining a drug premises. A jury found Odom not guilty on the maintaining a drug premises charge and guilty on all other charges.

I. Sufficiency of the Evidence

The first adverse rulings we address are the denial of Odom's motions for directed verdict regarding the following charges: (1) possession with intent to deliver; (2) simultaneous possession of drugs and firearms; and (3) felon in possession of firearm. Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that a motion for directed verdict be made at the close of the State's evidence and renewed at the close of all the evidence. SeeArk. R. Crim. P. 33.1. A defendant's failure to move for directed verdict at the close of the State's evidence and at the close of all the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. See Crisp v. State, 341 Ark. 893, 20 S.W.3d 394 (2000); see also Ark. R. Crim. P. 33.1(c). Odom failed to move for a directed verdict on the felon in possession of a firearm charge at the close of the State's evidence; therefore, it is not preserved for appellate review.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). When reviewing a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in a light most favorable to the State. See Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation and conjecture. Moses v. State, 72 Ark. App. 357, 39 S.W.3d 459 (2001).

Possession of marijuana in an amount more than one ounce creates a rebuttable presumption that it is possessed with an intent to deliver. Bond v. State, 45 Ark. App. 177, 873 S.W.2d 569 (1994). During the execution of the search warrant, approximately 47 pounds of marijuana were seized and $973 was found in Odom's wallet. Odom asserted that the marijuana was for his personal use and the reason he had the large amount of cash was because he had recently been paid. The credibility of witnesses is an issue for the fact finder and not for this court. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Conflictsin the testimony are for the fact finder to resolve, and the fact finder is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). Therefore, viewing the evidence in a light most favorable to the State, we conclude that Odom's conviction for possession with intent to deliver was supported by substantial evidence.

In order to sustain a conviction for simultaneous possession of a firearm and a controlled substance under Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1997), the evidence must show that the defendant possessed a firearm while in possession of a controlled substance and that a connection existed between the firearm and the controlled substance. Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002). Sergeant Hanley Taylor of the Benton Police Department testified that the weapons seized were found on gun racks in Odom's bedroom and that several bags of marijuana were found near the gun racks. This testimony establishes a connection between the firearms and the controlled substance; therefore, we conclude there was substantial evidence to support Odom's simultaneous possession of firearms and controlled substance conviction.

II. Pretrial Motion to Dismiss

During a pre-trial hearing, Odom made a motion to dismiss one of the counts in the felony information. The trial court failed to rule on Odom's motion. We have consistently stated that the burden of obtaining a ruling is on the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Donald v. State, 310 Ark. 197,833 S.W.2d 770 (1992). Because Odom failed to obtain a ruling on his motion, we find no error.

III. Evidentiary Rulings

We next address the evidentiary rulings that were adverse to Odom. Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. White v. State, 330 Ark. 813, 958 S.W.2d 519 (1997).

Amanda Odom, Odom's daughter, testified that she assumed a sale was occurring when she observed a bag of marijuana on the couch and one of Odom's friends give him something. The court allowed the testimony over defense counsel's speculation objection. According to Ark. R. Evid. 701, a lay witness may testify as to opinions and references which are rationally based on his perception and are helpful to the clear understanding of his testimony or the determination of a fact issue. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997). It is also well settled that Rule 701 is not a rule against opinions, but is a rule that conditionally favors them. Id. Thus, a trial judge's decision to allow lay-opinion testimony under Rule 701 will not be reversed by this court absent an abuse of discretion. Id. We conclude there was no abuse of discretion.

During cross-examination, Amanda Odom was asked if the State was happy when she later said she did not see what changed hands during the alleged sale. The State made a relevance objection to this question. During a bench conference, Odom's attorney stated that the purpose of the question was to discern the witness's fears. The court found that theevidence was not relevant. Relevant evidence is defined as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Hart v. State, 77 Ark. App. 206, 72 S.W.3d 540 (2002). The evidence sought was not relevant; therefore, we conclude there was no abuse of discretion.

During the testimony of Nick Dawson, a chemist for the State Crime lab, the State sought to question Dawson on the number of times he had performed testing on marijuana cigarettes. Odom's attorney made a relevance objection. The court found that the State was laying a foundation; we conclude there was no error.

During his testimony, Tom Ford sought to embellish on the nature of Odom's character. The State objected, arguing that Ford's statements went beyond credibility. The court sustained the objection. We find no error as to the ruling in regards to this objection.

IV. Miscellaneous Rulings

During rebuttal, defense counsel objected when the State said Odom admitted to being a felon. Odom's attorney argued that he made no such admission. However, a review of the record reveals that Odom did admit to having a prior drug conviction. Thus, we conclude there was no error.

An adverse ruling also occurred during the sentencing phase. The State sought to introduce a certified copy of Odom's record from the Arkansas Department of Correction for purposes of sentence enhancement. Odom's attorney objected, arguing that it was not a commitment order or a judgment. Arkansas Code Annotated section 5-4-504(a) (Repl.1997) provides that for sentencing enhancement purposes, a previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995). On appeal, the test is whether there is substantial evidence that the appellant was previously convicted of the felonies in question. Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989). When coupled with Odom's admission of a prior conviction, the copy of Odom's record establishes beyond a reasonable doubt his previous conviction.

The last adverse ruling occurred at the sentencing phase during the State's closing argument. The State attempted to make a statement about sending a message when appellant objected. The court admonished the State. A trial judge is given broad discretion to control counsel in closing arguments, and this court does not interfere with that discretion absent an manifest abuse of it. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). Here there was no abuse of discretion.

The record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that there were no errors with respect to rulings adverse to Odom and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Pittman and Griffen, JJ., agree.

1 We note that Odom's counsel failed to abstract a copy of the notice of appeal. While the supreme court has stated that the notice of appeal is not essential to the abstract in a criminal appeal, see Johnson v. State, 342 Ark. 357, 28 S.W.3d 286 (2000), we believe that for the sake of consistency, the better practice is to always include the notice of appeal in the abstract or addendum.