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Susan Williams ARKANSAS COURT OF APPEALS 2019.01.02 DIVISION II 15:38:50 -06'00' No. CR-12-1013

GECOBA LEQUIS TILSON Opinion Delivered September 18, 2013

APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23CR-09-984]

HONORABLE CHARLES E. STATE OF ARKANSAS CLAWSON, JR., JUDGE

APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Gecoba Tilson appeals his Faulkner County jury convictions of two counts of

aggravated robbery, one count of felony theft of property, and one count of misdemeanor

theft of property, along with a firearm enhancement, for his role in a robbery at the Tobacco

Superstore in Conway, Arkansas, in August 2009. We affirm.

The only issue on appeal is whether the trial court erred in allowing the store

manager, Dana Clark, to identify Tilson at trial. Tilson claims that Clark’s in-court

identification was unreliable given (1) her inability to completely see her assailant’s face

during the robbery, (2) the passage of time between the incident and the in-court

identification, and (3) the suggestiveness of the in-court identification procedure in which

the only potential suspect is seated at counsel table. Tilson asserts that the admission of this

type of “unreliable” identification violated the due process protections of the Fourteenth

Amendment and Article 2, section 8, of the Arkansas constitution. His claims fail. Cite as

First, to the extent Tilson is arguing that the in-court identification violated his federal

and state constitutional rights to due process, he did not raise these specific arguments below

and cannot do so now. Prior to trial, defense counsel moved in limine to prevent any of the

witnesses from identifying Gecoba Tilson in court, arguing that, because Tilson would be

seated at counsel table, any in-court identification would be tainted. He did not challenge

the identifications on constitutional grounds. Our law is well settled that issues raised for the

first time on appeal, even constitutional ones, will not be considered because the trial court

never had the opportunity to rule on them. London v. State,

,

(2003). Our supreme court has repeatedly held that an appellant is limited by the

scope and nature of the arguments and objections presented at trial, and may not change the

grounds for objection on appeal. Calloway v. State,

,

(2007).

Second, even if the trial court erred in allowing Dana Clark’s in-court identification,

such evidence was merely cumulative to the identification testimony by two other witnesses,

Rebecca Clark and Cody Rose, whose testimony has not been challenged on appeal.

Prejudice cannot be demonstrated where erroneously admitted evidence is merely

cumulative to other evidence that was properly admitted. Holloway v. State,

,

; Wright v. State,

,

(2007).

Finally, Gregory Tilson’s presence at counsel table did not render Dana Clark’s

in-court identification impermissibly suggestive. The Arkansas Supreme Court has

previously held that a defendant’s location at counsel table during an in-court identification

did not automatically taint the identification or make it unreliable. Webster v. State,

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,

(1984). In Webster, the appellant challenged the trial court’s denial of

his request to sit somewhere in the courtroom besides at the counsel table when the victims

were asked to make an in-court identification of their assailant. The apparent basis for the

request was the possibility that the in-court identification would be less reliable if the

defendant were seated in the place where a defendant ordinarily sits—the same issue as here.

The court in Webster stated:

The trial judge may control the seating arrangement in the courtroom. Unless appellant suffered some prejudice as a result of being seated with counsel, he has no ground for complaint. See Berna v. State,

,

(1984). Reliability of the in-court identification is the key in determining its admissibility. The appellate court will not hold an in-court identification inadmissible without a showing from a totality of the circumstances that clear error occurred. Whitt v. State,

,

(1984). Here, the victims saw the man for several minutes and were able to describe him to the police. Their in-court identification was positive. When the totality of the circumstances is considered, it was not clearly error to admit the in-court identification. The location of the appellant in the courtroom was not enough to taint the evidence and make it unreliable.

At 210,

.

In this case, Dana Clark was not asked by the police to identify Tilson prior to trial,

and she never identified anyone else as the perpetrator. She did, however, recognize Gecoba

Tilson at his codefendant’s trial. She further testified that she was able to see the portion of

the robbers’ faces above their noses during the robbery and that Gecoba Tilson was the

shorter of the two robbers—the one who stood in front of her and pointed a gun at her face.

She stated that she was able to identify him because she was face to face with him during the

robbery, and his image was burned into her brain. Under the totality of the circumstances,

it was not clear error for the court to admit the in-court identification.

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Affirmed.

GLADWIN , C.J., and GLOVER , J., agree.

James Law Firm, by: Lee D. Short, for appellee.

Dustin McDaniel, Att’y Gen., by: Rebecca B. Kane, Ass’t Att’y Gen., for appellee.

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