Markevius Livingston v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

Arkansas Court of Appeals

Judge Josephine Linker Hart

DIVISION II

MARKEVIUS LIVINGSTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA00-287

November 1, 2000

APPEAL FROM THE JEFFERSON COUNTY CHANCERY COURT

[NO. J98-57-4]

HONORABLE PHILLIP H. SHIRRON,

JUDGE

AFFIRMED

On March 17, 1998, appellant, Markevius Livingston, was adjudicated a delinquent for being a minor in possession of a handgun and placed on probation. On June 18, 1999, the State filed a petition to adjudicate appellant as a delinquent and to revoke his probation, alleging that he committed the crime of first-degree battery. At a hearing held November 9, 1999, the court found the allegation true and granted the State's petition. For reversal, appellant argues that the evidence was insufficient to support the delinquency adjudication because the victim did not sufficiently identify him as the perpetrator of the first-degree battery. Appellant, however, failed to make this specific argument below in his motions for a directed verdict. Because appellant failed to make this specific argument, it is not preserved for appellate review. Thus, we affirm.

In a nonjury trial, to preserve a challenge to the sufficiency of the evidence on appeal,an appellant must move for dismissal at the close of all of the evidence and "state the specific

grounds therefor." Ark. R. Crim. P. 33.1(b) & (c) (2000). "A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient." Ark. R. Crim. P. 33.1(c) (2000). This rule, amended on April 8, 1999, by a per curiam order of the Arkansas Supreme Court, became effective immediately and thus was in effect at the time of appellant's November 9, 1999, hearing. Recently, our supreme court found Rule 33.1 applicable to revocation hearings. See Miner v. State, 342 Ark. ___, ___ S.W.3d ___ (Oct. 12, 2000); Thompson v. State, 342 Ark. ___, ___ S.W.3d ___ (Oct. 12, 2000). This rule applies to juvenile delinquency proceedings as well. See Trammell v. State, 70 Ark. App. 210, 16 S.W.3d 564 (2000).

Appellant moved for a directed verdict at the close of the State's case, stating that "[t]he state has failed to make a prima facie case." At the close of all the evidence, he renewed his motion and noted the absence of a witness, arguing that an inference could be drawn that her testimony would be contrary to the victim's testimony. Appellant did not, however, specifically argue that the victim failed to sufficiently identify appellant as the perpetrator of the first-degree battery. A motion that the State failed to make a prima facie case is not specific enough to preserve a challenge to the sufficiency of the evidence. See Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). Further, appellant's failure to specifically raise at the hearing the argument he makes on appeal precludes this court from reviewing his argument. See Sharkey v. State, 71 Ark. 50, 25 S.W.3d 433 (2000).

Affirmed.

Meads, J., agrees.

Pittman, j., concurs.