ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

MELTON OSCAR SMITH

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-1108

SEPTEMBER 3, 2003

APPEAL FROM ARKANSAS COUNTY CIRCUIT COURT

[NO. CR00-135]

HONORABLE RUSSELL ROGERS, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Melton Smith was convicted by a jury of violating Ark. Code Ann. § 26-57-403 (Repl. 1997), which prohibits paying money in exchange for a non-cash prize or novelty received as a reward in playing an amusement game or device. Smith was sentenced to nine months' imprisonment in the county jail and fined $1000. On appeal, Smith argues that the trial court erred in failing to give a proper curing admonition in response to the prosecuting attorney's comment during his closing argument on the failure of the defendant to present evidence. We affirm.

At trial, Special Agent R.L. Newton of the Arkansas State Police testified that in June 2000, he made two undercover visits to Smith's business, Mel's Novelties, located in Stuttgart, Arkansas, while posing as a member of a road crew from a local highway construction project. Agent Newton discovered that the walls of Mel's novelties were lined with video games that resembled the type of slot machines found in a casino. These machines, however, awarded credits rather than money. Agent Newton testified that, after losing all of his money on the first day, he accumulated 900 credits on a nickel machine on his second visit. According to Agent Newton, he learned that, in order to "cash out," he had to hold up a teddy bear sitting on top of the machine that he was playing. When he did so, Smith walked over and gave him the option of either taking the teddy bear and another stuffed toy, or allowing Smith to buy the toys from him for $45. Agent Newton chose the latter option, and Smith then paid him $45 for the stuffed animals. Agent Newton testified that he saw other winners also receiving cash and that he did not see anyone choose to keep a stuffed animal.

The defense offered no evidence to dispute this testimony, and during his rebuttal closing argument, the prosecuting attorney highlighted this fact by stating, "I fully realize the Defendant doesn't have the burden to move forward with any proof. But we, likewise, didn't hear from anybody who said, `Well, yeah, I went in there and I won this teddy bear,' or `I won this pair of waxed lips,' or `I won this.' The unrefuted . . ." Smith objected at this point, arguing that the prosecutor had made reference to the defense not offering proof in support of its case and that it was grounds for a mistrial. However, Smith stated that in lieu of a mistrial, he was requesting that the trial court give an admonition to the jury that there is no burden on the defense to present any evidence on its behalf. The court agreed and then stated, "I need to make it clear, re-read the instruction that the defendant in a criminal prosecution has an absolute constitutional right not to testify. And the fact that he did not testify is not evidence of guilt or innocence, and under no circumstances should be considered by you, alright?" There were no further objections by Smith, and the prosecutor then continued with its closing argument. On appeal, Smith argues that the trial court erred in failing to give a proper curing admonition in response to the prosecuting attorney's comment on the failure of the defendant to present evidence. Smith contends that the prosecutor's comment was improper because it shifted the burden of proof to the defendant and that the trial court's curative instruction was insufficient to cure any prejudice because it addressed only the fact that the defendant has a constitutional right not to testify and not the specific point raised by him, that the burden of proof lies solely on the prosecution to prove its case. Smith, however, did not object to the adequacy of this admonition given by the trial court, and appellate courts do not consider arguments raised on appeal in the absence of a specific, contemporaneous objection at the trial level. See Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000) (holding that argument as to inadequacy of admonition to jury was not preserved where defendant failed to make a timely objection to the trial court).

Moreover, even if Smith's argument was preserved for appellate review, he has not demonstrated any prejudice from the prosecutor's remarks. Smith asserts that the prosecutor's comment constituted reversible error, and he relies on Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978), as support for his argument that prejudice is presumed from the type of statement made by the prosecutor in this case. However, in Adams, supra, the prosecuting attorney stated during his closing argument that the jury did not have to disbelieve any part of the defense's case to convict the defendant because "how many witnesses did the defense put on for your consideration?" Id. at 538. The supreme court held that this statement constituted reversible error because it was a comment on the failure of the defendant to testify, which violates the Fifth Amendment privilege against self-incrimination. Id. at 539. The court, however, distinguished this type of statement from those statements made by a prosecuting attorney that merely emphasize the weight or the undisputed nature of the evidence, which are proper and nonobjectionable. Id. at 541.

In Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993), the supreme court further discussed the types of comments that are permissible by the prosecutor when summarizing the evidence in those cases where the defendant has chosen not to testify. The court recognized that a remark by a prosecutor that the State's evidence has not been contradicted by other testimony is generally permissible and not a prejudicial comment on the defendant's failure to testify; however, a prosecutor may not comment concerning the uncontradicted nature of the evidence when it is highly unlikely that anyone other than the defendant can dispute the evidence. Id. at 21-23. Thus, in Aaron, supra, the court found that it was reversible error for the prosecutor to comment on the lack of evidence to dispute the rape victim's testimony, where the defendant and the victim were alone at the time of the offense and it was highly unlikely that anyone other than the defendant could refute the evidence. Id. at 23.

In the present case, the prosecutor commented that Agent Newton's testimony that he and everyone else he witnessed were paid cash for the stuffed toys was undisputed, and unlike in Aaron, supra, there are other witnesses besides the defendant who could rebut this evidence. This type of comment was held to be permissible in Phillips v. State, 12 Ark. App. 319, 676 S.W.2d 753(1984), where the prosecutor summarized the evidence in his closing argument by stating, "You haven't heard one person that was there tell you that . . . Phillips didn't do this." This court found that the statement was not reversible error, as the prosecutor must be able to argue the weight of the evidence, including the fact that a witness's testimony was consistent and uncontradicted. Id. at 324. Thus, even if Smith's argument as to the inadequacy of the trial court's admonition was preserved for appellate review, he can demonstrate no prejudice from the prosecutor's comments on the undisputed nature of the evidence.

Affirmed.

Vaught and Baker, JJ., agree.