ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

JASON TODD PHIPPS

V. CR2001-954 & CR2001-955

STATE OF ARKANSAS CIRCUIT JUDGE

Andree Layton Roaf, Judge

A Sebastian County jury convicted appellant Jason Todd Phipps of violating Arkansas Code Annotated section 5-12-103 (Repl. 2002), aggravated robbery, on two separate occasions. Phipps was sentenced to fifteen years' imprisonment for each robbery conviction with the sentences to run concurrently. On appeal,1 Phipps argues that the trial court erroneously admitted hearsay testimony in the form of a victim-impact letter read to the jury during the sentencing phase. As a result, Phipps argues that he was prejudiced in the sentences he received. We affirm.

At trial Phipps was convicted of robbing a Walgreen's pharmacy on September 23, 2001, and the same Walgreen's pharmacy again on October 12, 2001. During both robberies, Phipps

brandished a knife and demanded Oxycontin.2 He neither demanded, nor took money from the pharmacy. Phipps gave a taped confession to Fort Smith police officers in which he admitted being addicted to Oxycontin, but denied having any intention of hurting anyone during the robberies.

After the jury returned a guilty verdict, but prior to submitting the case to the jury for sentencing, the trial court allowed the State to read a victim-impact letter, written by the pharmacist present during the October 12, 2001 robbery. Prior to the recitation of the letter, Phipps's counsel objected, stating:

This is the victim's impact statement. The gentleman provided it to the prosecuting attorney this morning, but we didn't motion for it during the trial and he didn't provide it to the State until this morning, but we would object.

The trial court overruled the objection and the State read the following to the jury:

Concerning 10/12/01

This robbery has caused considerable stress and anxiety in many areas of my life, but especially at work. Furthermore, my wife has suffered anxiety concerning my safety at work.

While at work I am almost constantly concerned and troubled about my safety. I feel this is a direct result of my experience.

Phipps asserts that the trial court erred in admitting the victim's impact letter into evidence during the sentencing phase of the trial because the witness who wrote the letter was not available for cross-examination. Phipps argues that his Sixth Amendment right to confront witnesses against him was thus violated. He further argues that the letter was improperly admitted because it is inadmissible hearsay. Phipps correctly cites Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999) for the proposition that the rules of evidence apply to victim-impact statements submitted during the sentencing phase of a trial. Consequently, our rules of evidence have long required objections to be specific enough to apprise the trial court of the grounds thereof. E.g., Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002); Moulton v. State, 105 Ark. 502, 152 S.W. 132 (1912). Therefore, we cannot reach the merits of Phipps's arguments because he failed to make a specific objection to the trial court. It is well established that we cannot consider arguments raised on appeal in the absence of a specific, contemporaneous objection at the trial level. Howard, supra (holding that, in order to preserve a hearsay objection, the defendant must make a timely, specific objection, stating hearsay as the grounds for the objection); Hinkston v. State, 340 Ark. 530, 534, 10 S.W.3d 906, 909 (2000) (holding that even constitutional challenges must be preserved for appellate review).

Moreover, even if this court were to reach Phipps's argument, he cannot demonstrate any prejudice from the sentence imposed by the jury. Phipps was found guilty of two counts of aggravated robbery. He was sentenced to fifteen years' imprisonment for both charges with the sentences to run concurrently. Aggravated robbery is a Class Y felony, punishable by ten to forty years' imprisonment, or life. Ark. Code Ann. § 5-4-401 (Repl. 1997). Additionally, the Arkansas Code permits enhanced sentencing for persons considered habitual offenders. Ark. Code Ann. § 5-4-501 (Supp. 2003). The sentence enhancement for Class Y felonies applicable to defendants who have previously committed one felony, but less than four, is a minimum sentence of ten years and a maximum sentence of sixty years, or life. Ark. Code Ann. § 5-4-501(Supp. 2003).

During the sentencing phase the State introduced two prior convictions, one for the offense of commercial burglary and another for theft of property. These convictions were admitted without objection.3 Accordingly, the jury could have sentenced Phipps to no less than ten years, for both sentences. Phipps, however, received a sentence of only fifteen years. In light of the above observations, we cannot say that Phipps was prejudiced when he received a sentence well within the statutory range, and one that falls short of the maximum allowed sentence. See Buckley v. State, 349 Ark. 53, 64, 76 SW.3d 825, 831-32 (2002) (holding that "[a] defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence itself."). See also Young v. State, 287 Ark. 361, 699 S.W.2d 398 (1985).

1 Phipps did not include a copy of his notice of appeal in his addendum or abstract, as required under Ark. R. Sup. Ct. 4-2(a)(8) (2003). Only a review of the record reveals that Phipps filed a notice of appeal on April 4, 2002. The judgment and commitment order was dated March 18, 2002, and filed March 20, 2002. Pursuant to Ark. R. App. P. Crim. 2(b)(1) (2003), the appeal is thus timely, albeit not properly documented on appeal. See Jones v. State, ____ Ark. App. ____, 105 S.W.3d 835 (2003).

2 Oxycontin is an addictive prescription narcotic prescribed for pain. Phipps was originally prescribed Oxycontin after undergoing a discectomy.

3 The record does not indicate that Phipps was sentenced as an habitual offender even though he fits the statutory definition. See Ark. Code Ann. § 5-4-501 (Supp. 2003).