Not Designated For Publication
ARKANSAS COURT OF APPEALS
No. CACR 07-1347
WILLIAM DAVID HICKS
September 24, 2008
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
STATE OF ARKANSAS
HONORABLE BARRY ALAN SIMS,
SARAH J. HEFFLEY, Judge
Appellant was convicted of sexual assault in the second degree and now appeals his
conviction, asserting that the State failed to prove his act was for the purpose of sexual
gratification. We find that appellant’ s argument is not preserved for our review and affirm.
Appellant was accused of sexually assaulting the six-year-old daughter of a friend and
neighbor, specifically by placing her hand on his penis. The jury heard testimony from the
victim’ s mother, police officers, and the victim herself. The victim testified that appellant was
spending the night at her house and, while watching television with him, he turned on a “ nasty
channel,” and the people on the television “ just like had a bra on and panties” and “ they were
showing like half of their, half of their boob and I closed my eyes when I saw it.” The victim
testified that appellant then took her hand and placed it on his “ private part,” which was under
a blanket. The victim also described another instance in which appellant exposed his penis to her
while he was changing clothes.
At the close of the State’ s case, appellant made a motion for directed verdict, arguing that
the State had failed to prove the victim’ s age and that the State failed to prove “ sexual contact.”
Appellant’ s motion was denied, as was his renewed motion at the close of all the evidence. The
jury found appellant guilty and recommended a sentence of fifteen years’ imprisonment, which
the court adopted and imposed. This appeal followed.
Appellant was convicted under Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2006), which
states that a person commits sexual assault in the second degree if that person is eighteen years of
age or older and engages in “ sexual contact” with a person who is less than fourteen years of age
and not the person’ s spouse. “ Sexual contact” is defined as “ any act of sexual gratification
involving the touching . . . of the sex organs, buttocks, or anus of a person or the breast of a
female.” Ark. Code Ann. § 5-14-101(9) (Repl. 2006).
On appeal, appellant concedes that he did place the victim’ s hand on his penis but argues
that the State failed to produce substantial evidence that he did so for the purpose of sexual
gratification. However, this precise argument is not preserved for appeal. Rule 33.1(c) of the
Arkansas Rules of Criminal Procedure provides:
(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
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 . . . .
Our supreme court has ruled that Rule 33.1 must be strictly construed. Eastin v. State, 370
Ark. 10, 257 S.W.3d 58 (2007). Thus, to preserve an issue for appeal from a decision on a
directed-verdict motion, the issue must be stated clearly and specifically to the circuit court.
Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005), apprising the circuit court of the
“ particular point raised.” Tester v. State, 342 Ark. 549, 553, 30 S.W.3d 99, 102 (2000).
reasoning underlying this holding is that when specific grounds are stated and the absent proof is
pinpointed, the circuit court can either grant the motion, or, if justice requires, allow the State to
reopen its case and supply the missing proof. Id. A further reason that the motion must be
specific is that this court may not decide an issue for the first time on appeal. Id.
In his directed-verdict motion, appellant argued, generally, that the State had failed to
prove sexual contact. As noted above, the term “ sexual contact” has a well-defined meaning that
includes several elements. It involves the “ touching” of “ sex organs” “ for the purpose of sexual
gratification.” Ark. Code Ann. § 5-14-101(9). In the motion, appellant’ s attorney failed to
identify a specific element of sexual contact that was not established by the State. The motion did
not assert a specific flaw in the State’ s case. Because appellant’ s motion for a directed verdict
was general and did not inform the trial court of the specific issues in the State’ s case that were
being challenged, it did not comply with the requirements of Rule 33.1. Pratt v. State, 359 Ark.
16, 194 S.W.3d 183 (2004). Because appellant is presenting an argument on appeal that was not
argued to the trial court, we find that appellant’ s argument is not preserved for our review and
PITTMAN , C.J., agrees.
MARSHALL , J., concurs.
MARSHALL , J., concurring. I would reach the merits and affirm. The State’s evidence,
which the court aptly summarizes, was substantial. The record thus supports the conviction. Cook
v. State, 350 Ark. 398, 407, 86 S.W.3d 916, 922 (2002).
In my view, Hicks’s directed-verdict motion was adequate to preserve his sufficiency
argument for appeal. Second-degree sexual assault contains four elements. If Hicks had argued
below that the evidence on the charge was insufficient without giving any particulars, then his
argument on appeal would not be preserved. Eastin v. State, 370 Ark. 10, 14–15, 257 S.W.3d 58,
62–63 (2007). As our court notes, however, Hicks argued that the proof failed on two particular
elements of his alleged crime: the victim’s age and whether sexual contact occurred. The circuit
court rejected these arguments. He thus preserved these points for appeal. Ark. R. Crim. P. 33.1(c);
Gardner v. State, 76 Ark. App. 258, 262, 64 S.W.3d 761, 763 (2001).
But our court holds that Hicks needed to go deeper. Hicks had to give specifics, the court
concludes, about the obvious aspects of the sexual-contact element—improper touching and sexual
gratification—to preserve his sufficiency challenge for appeal. Ark. Code Ann. § 5-14-101(9) (Repl.
2006). I respectfully disagree.
The cited precedent does not require this kind of multi-layer preservation. Eastin and Pratt
are general-objection cases, where the defendant made no reference at all to specific elements.
Phillips and Tester are different-objection cases, where the defendant made one specific argument at
trial and then made a different specific argument on appeal. Hicks’s case presents neither situation.
I would hold that Hicks’s motion sufficed. We should not further tighten our already-strict
preservation doctrine. The reason behind Rule 33.1 does not require that directed-verdict motions
include detailed argument about embedded aspects of the specific element challenged. Wilson v.
State, 332 Ark. 7, 10–11, 962 S.W.2d 805, 807–08 (1998). The target of Hicks’s sufficiency
challenge was and is discernable. We should therefore decide this case on the merits.