FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-17-354]
HONORABLE ALEX GUYNN, JUDGE
Luppen, for appellant.
Rutledge, Att'y Gen., by: David L. Eanes, Jr., Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE
Brian Taylor was convicted in a bench trial of simultaneous
possession of drugs and firearms, being a felon in possession
of a firearm, possession of cocaine with the purpose to
deliver, possession of methamphetamine with the purpose to
deliver, and possession of alprazolam with the purpose to
deliver. For these offenses, Taylor was sentenced to
concurrent prison terms of ten years, five years, five years,
five years, and one month. Taylor's sole point on appeal
is that it was error to sentence him for both simultaneous
possession of drugs and firearms and being a felon in
possession of a firearm because it violated the Fifth
Amendment's prohibition against double jeopardy. We
State Police Officer Zack Varnell testified that he was
patrolling Interstate 530 one night when he clocked
Taylor's vehicle at 90 miles an hour. Officer Varnell
stopped Taylor for speeding. When Officer Varnell approached
the driver's side of the vehicle Taylor did not roll his
window down. Officer Varnell saw Taylor manipulating
something on the floorboard, and he observed an open Crown
Royal bag with a pill bottle in view. Then Officer Varnell
saw Taylor in possession of a pistol, which Taylor placed in
the "center cubbyhole of the ceiling." Officer
Varnell drew his sidearm and removed Taylor from the vehicle.
Officer Varnell then removed the pistol from the cubbyhole.
Upon inspecting the Crown Royal bag, Officer Varnell found
baggies containing a white powdery substance later determined
to be cocaine. Officer Varnell also seized various pills,
some of which contained methamphetamine, and some of which
contained alprazolam. The State introduced documentation
showing that Taylor had previously been convicted of multiple
only point raised by Taylor on appeal is a double-jeopardy
argument. The Double Jeopardy Clause of the Fifth Amendment
protects criminal defendants from multiple punishments for
the same offense. Campbell v. State, 2017 Ark.App.
340, 525 S.W.3d 465. In his point on appeal, Taylor claims
that his sentences for simultaneous possession of drugs and
firearms and being a felon in possession of a firearm
violated the Double Jeopardy Clause of the Fifth Amendment.
Although not listed as separate points on appeal, within the
argument section of point one, Taylor also appears to argue
that his right against double jeopardy was violated by his
convictions for possession of cocaine with the purpose to
deliver and possession of methamphetamine with purpose to
deliver, and by his convictions for possession of illegal
drugs with the purpose to deliver and simultaneous possession
of drugs and firearms. We conclude that none of Taylor's
double-jeopardy claims are preserved for review because they
were not timely raised below.
only double-jeopardy argument raised by Taylor below was made
in his motion for directed verdict after the State rested its
case. In making his motion, Taylor argued that simultaneous
possession of drugs and firearms and being a felon in
possession of a firearm alleged the same elements and that
his being charged twice for the same offense constituted
double jeopardy. Taylor made no other double-jeopardy
arguments. However, even the double-jeopardy argument that he
did raise was ineffective to preserve the issue for appeal
because it was made prematurely before he was convicted of
controlling case is our supreme court's decision in
Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001).
Similar to this case, the appellant in Brown raised
a double-jeopardy argument in his motion for directed
verdict. The supreme court held that this was ineffective to
preserve the double-jeopardy argument for appeal:
We agree with the State that this issue is not preserved . .
. . We believe that raising the issue of double jeopardy in a
motion for directed verdict was premature since the motion at
that stage of the proceedings could only relate to
charged offenses. After the jury's verdicts on
the various convictions were returned, Brown failed to make
any motion whatsoever. Brown's issue on appeal clearly
relates to multiple convictions for the same conduct
and not to multiple charges for the same conduct,
and our Criminal Code makes this distinction very clear:
When the same conduct of the defendant may establish the
commission of more than one (1) offense, the defendant may be
prosecuted for each such offense. He may not, however, be
convicted of more than one (1) offense.
Ark. Code Ann. § 5-1-110(a)(1) (Repl.
1997). Thus, a defendant cannot object to a
double jeopardy violation until he has actually been
convicted of the multiple offenses, because it is not a
violation of double jeopardy under § 5-1-110(a)(1) for
the State to charge and prosecute on multiple and overlapping
charges. It was only after the jury returned guilty verdicts
on both offenses that the circuit court would be required to
determine whether convictions could be entered as to both
based on the same conduct. See Ark. Code Ann. §
5-1-110(a)(1) (Repl. 1997).
Because Brown moved for a directed verdict based on double
jeopardy before he was convicted of any offense, his motion
was ineffective. Because he then failed to object after the
jury convicted him of both charges, he waived his double
jeopardy argument for purposes of appeal. We conclude that
the circuit court ...