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ARKANSAS COURT OF APPEALS DIVISION I No. CR-14-103

WILLIE RAY PORCHIA Opinion Delivered November 19, 2014 APPELLANT APPEAL FROM THE OUACHITA V. COUNTY CIRCUIT COURT [NO. CR-10-162]

STATE OF ARKANSAS HONORABLE EDWIN KEATON, APPELLEE JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

Willie Ray Porchia was convicted by a Ouachita County jury of four counts of

delivery of a controlled substance (crack cocaine) within 1,000 feet of a church. He was

sentenced as a habitual offender to four ten-year terms for the underlying delivery convictions

and four ten-year terms on the proximity enhancement, to be served consecutively. He

appeals his convictions, arguing that the trial court erred in (1) allowing the State to introduce

into evidence several still photos taken from the videos of the controlled buys and (2) failing

to instruct the jury that he was not eligible for early release or transfer on the enhanced

portion of his sentence. Because neither argument was preserved for appeal, we affirm.

The facts surrounding the charges below are undisputed. In February and March 2010,

the Arkansas State Police conducted four, separate, controlled buys using Tina Edwards as a

confidential informant. Each controlled buy followed the same procedure. In each instance, Cite as

after being searched and provided with buy money, Edwards contacted Porchia at his

residence and purchased twenty dollars in crack cocaine. Edwards video recorded each

purchase. At trial, the State, over Porchia’s objections, introduced into evidence not only the

recorded video of the alleged buys, but also several still photographs captured from the video.

The jury ultimately convicted Porchia on all four counts of delivery of a controlled

substance and the corresponding sentencing enhancements for the delivery occurring within

1,000 feet of a church.1 The jury was instructed that it could consider the fact that Porchia

might be eligible for early release or transfer to the Department of Community Correction.

The court did not instruct the jury that the sentencing provisions on early release and transfer

were unavailable for the sentencing enhancements. The jury sentenced Porchia as a habitual

offender to four ten-year terms for the underlying delivery convictions and four ten-year

terms on the proximity enhancement to be served consecutively.

Porchia first asserts that the trial court erred in admitting the still photographs into

evidence. At trial, counsel argued that the still photographs were inadmissible as cumulative.

Counsel stated:

Your Honor, I would object because I don’t understand the purpose of it. It’s already been introduced as a video. Why you would do still pictures of the same thing? The jury has had an opportunity to use, to view that video, and these are still pictures taken of various, I guess, scenes off the video, I’m not sure of the purpose of them.

However, this is not the argument being made on appeal. On appeal, he argues that

the photographs were admitted without the proper foundation and authentication. An

1 The residence where the buys occurred was located approximately 570 feet from the Faith Temple Apostolic Church.

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appellant may not change the basis of an objection on appeal. Green v. State,

,

(1997). Instead, appellant is bound by the scope and nature of the arguments

made at trial. Abshure v. State,

,

(2002). Because Porchia did

not make the lack-of-foundation or authentication arguments to the trial court, they are not

preserved for appeal.

Porchia next argues that the trial court erred in failing to instruct the jury that he was

ineligible for early release or transfer on the enhanced portion of his sentence. This argument

is likewise not preserved for review. Appellant never raised an objection to the instruction

before the trial court, nor did appellant proffer another instruction. This court will not address

objections concerning jury instructions that were not first presented to the trial court and

where no proffer of another instruction was made. See Willis v. State,

,

(1998).

Affirmed.

PITTMAN and GLOVER, JJ., agree.

Margaret Egan, for appellant.

Dustin McDaniel, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.

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