S.G., VE.G., and VA.G. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

S.G., VE.G., and VA.G.

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CA 05-524

NOVEMBER 16, 2005

APPEAL FROM THE DESHA

COUNTY CIRCUIT COURT,

ARKANSAS CITY DISTRICT

[NO. JV2004-96-5, JV2004-94-5,

JV2004-95-5]

HONORABLE TERESA ANN

FRENCH, JUDGE

AFFIRMED

John B. Robbins, Judge

S.G., Ve.G., and Va.G. appeal the order of the Desha County Circuit Court finding them to be juvenile delinquents. The finding was based upon the trial judge's conclusion that these teenage siblings committed criminal mischief by virtue of having "keyed" a vehicle.1 The event was alleged to have taken place on the evening of the McGehee versus Dermott football game on September 2, 2004. The vehicle, which belonged to Sylvia Meade, was on the parking lot inside the gates near the McGehee football field. Appellants argue that there is insufficient evidence that they were the ones who damaged the vehicle, and thus argue that the findings of delinquency should be reversed. The State argues that the issue of the sufficiency of the evidence is procedurally barred, and in the alternative, that there was

sufficient evidence to support the finding of delinquency. We agree with the State on both of its assertions, and therefore, we affirm.

The testimony at the adjudication hearing included that of Ms. Meade, who stated that she was a resident of Dermott, Arkansas. She was attending the football game with her children, and she said she saw the appellants at the beginning of the game. She knew them because she was formerly married to their uncle. Ms. Meade said she drove her maroon colored 1999 Chevrolet Tahoe, which had rims on the wheels, to the game and parked inside the gates. She said that after the game, she was walking toward the parking area when she observed appellants, who were students from the opposing high school team, drive by her vehicle. Va.G. was driving a green mini-van that Ms. Meade recognized as their family vehicle. She said the kids passed by her twice and kept asking, "How do you like it now?" Ms. Meade did not notice anything unusual about her vehicle that night, but the next morning, she saw that her Tahoe was "keyed all over." She observed scratches on the top of the hood, the back, and all the sides. She said that before the game, it was clean and shiny and in good condition. The damage required repainting. She said it was not the first time they had done this.

Larry Darnell West, who also attended the game that night, testified that he went to the parking lot to smoke during the game whereupon he saw three juveniles around a Chevrolet SUV with rims. There were two girls and one boy; one girl acted as the look-out, and the other two were rubbing or scratching on the vehicle and walking around it. West did not say anything to them while this happened, but he saw Ms. Meade and her husband the next morning. Ms. Meade told him that her vehicle had been "keyed," so West told them what he had seen the previous night. Although West formerly worked with Ms. Meads, he denied that he had any close relationship with her.

The State rested, and the defense moved for directed verdict on the basis that though appellants were in the area that night, there was no one who could identify them as the culprits who damaged the Tahoe. The motion was denied.

Va.G. testified that she was at the football game that night with her siblings. Va.G. said that when the game was over she drove herself and her siblings home. Va.G. agreed that they saw Ms. Meade and recognized her maroon Tahoe. Va.G. said she heard Ms. Meade "yelling at us...calling us names" as they drove past her, but she denied knowing what Ms. Meade was yelling about and denied that they said anything to Ms. Meade. Va.G. testified that there was an on-going feud between her family and Ms. Meade and that Ms. Meade was simply making false accusations.

Ve.G. testified in line with Va.G. that he knew Ms. Meade's vehicle, that they drove past her in their family's green van, and that Ms. Meade was "hollering" at them, though he did not know what she was saying. Ve.G. agreed that there was a history of disharmony between the families. He denied that they were the ones who "keyed" the Tahoe. S.G. testified that her testimony would be in line with her siblings' testimony.

A friend of Ve.G.'s, Kendall Darden, testified that he was at the game with Ve.G. every minute that night, that Ve.G. did not ever leave the football area during the game, and that he drove Ve.G. home that night. Apparently Kendall and Ve.G. worked for the team by holding the ten-yard chains. Another friend of the juveniles, Monica Cross, testified that she went with the girls to the game, that she and the girls were together the whole time and did not go out to the parking lot until after the game to leave, and that Ve.G. was not with them. Monica said that the girls pointed Ms. Meade out to her during the game because "she was the one that was supposed to be getting them suspended from school." Monica said the girlsall left together in the van; she did not recall seeing the maroon Tahoe with rims, nor did she remember any comments being made that night as they left.

Coach Grayson testified that Ms. Meade came to his office the next morning complaining that her vehicle had been keyed by the appellants. Coach Grayson agreed that the vehicle was a mess. Mr. West confirmed to Coach Grayson that he saw two females and one male around Ms. Meade's Tahoe, though he could not positively identify who they were. Twelve-year-old B.G. (a younger sibling of appellants) testified that she was with her sisters and their friends that night at the ball game. B.G. said that Ve.G. was not with them. She remembered seeing Ms. Meade and her children that night and she heard Ms. Meade yelling at them as they left, though she did not know what was said. Ve.G. went back on the stand and testified that Kendall, Monica, and B.G. were confused about where he was that night because there had been so many football games. Ve.G. restated that he was with his sisters in the van when they left.

After the defense rested, the trial court asked for any closing remarks. The State presented closing remarks that it had proven its case by circumstantial evidence. During the defense's closing remarks, defense counsel argued that there was reasonable doubt as to who keyed the Tahoe and that the circumstantial evidence was very weak. The trial court announced its finding that the State met its burden of proof and adjudicated each of the juveniles delinquent. Each juvenile was placed on one year of probation and ordered to have no contact with Ms. Meade. All three filed timely notices of appeal.

We first consider the procedural bar proposed by the State. The rules of criminal procedure are applicable in juvenile-delinquency proceedings. Ark. Code Ann. § 9-27-325 (Repl. 1998); Trammell v. State, 70 Ark. App. 210, 16 S.W.3d 564 (2000). In this hearing, defense counsel moved for directed verdict at the end of the State's evidence on the basis thatthere was no direct proof that appellants were the ones who damaged the vehicle. While the first motion was offered at the correct time, there was no renewal at the close of the defense's presentation of its proof. Instead, defense counsel offered argument in closing that the proof was too weak to connect appellants to the crime. This is untimely.

Arkansas Rule of Criminal Procedure 33.1(b) provides:

In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

Pursuant to Rule 33.1(c), a defendant's failure to make a timely motion for dismissal constitutes a waiver of any question pertaining to the sufficiency of the evidence. Where one does not move for dismissal at the close of the evidence but rather makes his motion as part of and during his closing argument, after the State gave its closing argument, this motion is untimely. See Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); J.R. v. State, 73 Ark. App. 194, 40 S.W.3d 342 (2001). Therefore, we are precluded from reviewing the sufficiency argument on appeal.

Nevertheless, were we to consider the sufficiency of the evidence, we would affirm. In reviewing a juvenile-delinquency case, we look at the record in the light most favorable to the State to determine whether there is substantial evidence to support the conviction. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). These juveniles were accused of being delinquent for having committed the crime of criminal mischief in the second degree. This crime is defined in Ark. Code Ann. § 5-38-204(a) (Repl. 1997), which provides that one commits second-degree criminal mischief if he either recklessly destroys or damages any property of another, or he purposelytampers with any property of another and causes substantial inconvenience to the owner or some other person.

In the present appeal, there is no quarrel with whether each element of the crime was proven. The only argument is that the State failed to prove that it was the appellants who were the ones who keyed the vehicle. The evidence, viewed in the light most favorable to the State, showed that a disinterested witness placed two females and one male around the vehicle at the relevant time; there was acknowledged on-going acrimony between the victim and appellants' family; and appellants were at the game that night yelling "how do you like it now?" to the victim as she approached her vehicle. This is sufficient circumstantial evidence to support the adjudications for delinquency.

We affirm.

Bird and Griffen, JJ., agree.

1 The charging documents are unclear as to the juveniles' dates of birth, but it appears that all three were born between the years 1987 and 1988. Va.G. was a twelfth grader in high school, and S.G. and Ve.G. were tenth graders. All attended McGehee High School.