Mike C. Lobbs v. State of Arkansas
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DIVISION II
NOT
DESIGNATED
PUBLICATION
FOR
CACR05-1262
APRIL 19, 2006
MIKE C. LOBBS
APPELLANT
v.
APPEAL FROM THE GRANT COUNTY
CIRCUIT COURT
[CR-05-67-2]
HONORABLE PHILLIP H. SHIRRON,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
After a bench trial, appellant Mike C. Lobbs was convicted of hunting turkey out of
season. On appeal, he challenges the sufficiency of the evidence. We hold that the issue is not
preserved for our review.
Arkansas Rule of Criminal Procedure 33.1 provides, in pertinent part:
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close
of all 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 the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the
manner required in subsections (a) and (b) above will constitute a waiver of any question
pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for
directed verdict or for dismissal based on insufficiency of the evidence must specify the respect
in which the evidence is deficient. A motion merely stating that the evidence is insufficient does
not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the
elements of the offense. A renewal at the close of all the evidence of a previous motion for
directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any
reason a motion or a
renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled
upon, it is deemed denied for purposes of obtaining appellate review on the question of the
sufficiency of the evidence.
Ark. R.Crim. P. 33.1 (2005).
Our supreme court interpreted Rule 33.1 in the context of a bench trial in State v. Holmes,
347 Ark. 689, 66 S.W.3d 640 (2002). In Holmes, the appellant moved for a directed verdict
following the close of the State's case during his bench trial but failed to renew the motion at the
close of all the evidence.1 The trial court convicted Holmes on two of the three charges but later
set aside his convictions. The State appealed, arguing that the trial court erred in granting
Holmes's motion to set aside the verdicts as he had waived any question pertaining to sufficiency
of the evidence by failing to make the appropriate motion at the close of all the evidence. The
supreme court agreed and said:
In the present case, Holmes's motion for directed verdict was not made at the close of all
the evidence. Rather, it was included during Mr. Kearney's closing argument, as quoted
above. Under Etoch, supra, [343 Ark. 361, 37 S.W.3d 186 (2001)] we adhere to a strict
interpretation of our rules, and we hold that Holmes did not comply with Ark. R.Crim. P.
33.1(b) and (c). In order to preserve the question of the sufficiency of the evidence,
Holmes should have made his motion for directed verdict at the close of all the evidence
before closing arguments. Because of his failure to do so, we hold that the trial court
erred in considering his motion to set aside the verdict for insufficient evidence, and we
reverse and remand with instructions to reinstate Holmes's convictions and sentence.
Holmes, 347 Ark. at 693, 66 S.W.3d at 643, see also Raymond v. State, 354 Ark. 157, 118
S.W.3d 567 (2003).
Appellant in this case included an argument that the evidence was insufficient during his
closing argument. A motion to dismiss at the close of the State’s evidence and again at the close
of all the evidence is mandatory to preserve a challenge to the sufficiency of the evidence.
Accordingly, we find that the argument is not preserved for our review and affirm.
Affirm.
BIRD and NEAL, JJ., agree.
1
The supreme court amended Rule 33.1 to refer to motions to dismiss rather than motions for
directed verdicts in connection with bench trials by per curiam order dated April 8, 1999. See In
Re: Rule 33.1, Rules of Criminal Procedure, 337 Ark. Appx. 621 (1999).
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