Cite as 2022 Ark. App. 353
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-22-44
TOBY CARTER Opinion Delivered: September 21, 2022
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
APPELLANT [NO. 63CR-21-102]
V. HONORABLE KEN CASADY, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Toby Carter appeals his conviction by a Saline County Circuit Court jury
of possession of firearms by certain persons and possession of a controlled substance—
methamphetamine.1 Appellant argues on appeal that the evidence was insufficient to
support his convictions. We affirm.
Officer Derek Jester with the Bryant Police Department initiated a traffic stop of a
vehicle being driven by appellant in the early morning hours of December 7, 2020. After
appellant pulled over, as Officer Jester was approaching the vehicle, the male passenger got
1
Appellant was also convicted of felony fleeing, but he is not appealing that
conviction.
out and walked away.2 Appellant subsequently sped away, and a chase ensued. The vehicle
eventually crashed and landed on the driver’s side, trapping appellant inside. The area
immediately around the vehicle was searched, and a gun was found. Once the vehicle was
placed back on its tires, a search of it revealed suspected drugs as well as paraphernalia.
Appellant’s jury trial took place on July 8, 2021. Officer Jester testified that on the
morning in question, he was on patrol for the Bryant Police Department when he noticed
that the vehicle appellant was driving had a defective tag light. When the license plate was
run, it showed that the registered owner of the vehicle had an active felony warrant, so
Officer Jester initiated a stop on the vehicle. The vehicle was driven for almost a mile before
appellant stopped. Once stopped, Officer Jester began to approach the vehicle from the
passenger side. He stated that as he was approaching the vehicle, an unknown white male
got out of the passenger side, threw his hands up, and walked away. The vehicle then sped
off going east on I-30. Officer Jester said that he then went back to his car and pursued the
fleeing vehicle. The pursuit took place in both Saline and Pulaski Counties, and at some
point, Officer Nick Kincade, also with the Bryant Police Department, took the lead. The
pursuit ended near Shannon Hills after the vehicle crashed. Officer Jester stated that he
searched the area around the vehicle and found a handgun (.38 special revolver) nearby.3
He testified that after the vehicle was placed upright, he searched it and found two baggies
2
The passenger was never identified.
3
On redirect, Officer Jester said that the gun was found a few feet from the vehicle.
2
containing a powdery substance under the driver’s seat, close to the door. Officer Jester said
that other paraphernalia was also found in the vehicle.
On cross-examination, Officer Jester admitted that he did not know what was in the
area around the vehicle before the crash; he did not run a search to see who purchased the
gun; he was unaware of any fingerprints being found on the gun; and that appellant was not
the registered owner of the vehicle. On recross, he conceded that he was unsure if the gun
came from the vehicle.
Officer Kincade testified that he was on patrol the morning in question and assisted
in the pursuit of appellant. He stated that after the crash, he approached the vehicle from
the front and waited for appellant to get out. He said that he was the officer who transported
appellant to jail.
Christy Williford of the Arkansas State Crime Laboratory testified that she tested one
of the baggies found in the vehicle appellant was driving and that it was positive for
methamphetamine.
At the conclusion of the State’s case, appellant unsuccessfully made the following
motion: “Your Honor, the Defense would move for a directed verdict based upon the lack
of forensics, the lack of knowledge of where anything was found.” The defense rested
without putting on evidence and renewed the motion. The circuit court denied the motion,
and the jury subsequently found appellant guilty. The sentencing order was filed on July 9,
and appellant timely appealed.
3
Appellant argues that the evidence is insufficient to support his convictions for
possession of firearms by certain persons and possession of a controlled substance—
methamphetamine. In reviewing a challenge to the sufficiency of the evidence, we determine
whether the verdict is supported by substantial evidence, direct or circumstantial. 4
Substantial evidence is evidence forceful enough to compel a conclusion one way or the
other beyond suspicion or conjecture.5 We view the evidence in the light most favorable to
the verdict, and only evidence supporting the verdict will be considered. 6
In challenging his possession-of-firearms-by-certain-persons conviction, appellant
maintains that the State failed to present evidence linking him to the gun. Specifically, he
argues that the State failed to show that he had “immediate and exclusive access” to the gun
and that the gun’s proximity to the wrecked vehicle is “insufficient to establish that [he]
exercised any type of care, control, or management over [it].” However, this is not the same
argument appellant made before the circuit court as that argument focused on “forensics”
and “knowledge.” Arkansas Rule of Criminal Procedure 33.1 requires a motion for directed
verdict to specify how the evidence is deficient.7 The motion must be specific enough to
apprise the circuit court of the particular basis on which the motion is made. 8 Our law is
4
Boswell v. State, 2021 Ark. App. 456, 636 S.W.3d 827.
5
Id.
6
Id.
7
Ark. R. Crim. P. 33.1(c).
8
Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996).
4
clear that a party is bound by the scope and nature of his directed-verdict motion and cannot
change the grounds on appeal.9 Accordingly, appellant’s argument is not preserved for our
review.
Appellant makes a similar linking argument while challenging his possession-of-a-
controlled-substance—methamphetamine conviction. Again, this argument is being made
for the first time on appeal and is not preserved.
Affirmed.
VAUGHT and MURPHY, JJ., agree.
The Hudson Law Firm, PLLC, by: Grace Casteel, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
9
Plessy v. State, 2012 Ark. App. 74, 388 S.W.3d 509.
5