Thomas Teague v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

THOMAS TEAGUE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-722

February 7, 2001

APPEAL FROM THE MONROE COUNTY CIRCUIT COURT

[NO. CR 96-132, 99-177]

HON. L. T. SIMES, II,

CIRCUIT JUDGE

AFFIRMED

The appellant pled guilty in 1998 to possession of a controlled substance, and the circuit court suspended imposition of sentence for five years. One of the conditions of that suspension was that appellant not commit any offense punishable by imprisonment. Subsequently the State filed an information charging appellant with having committed the offense of possession of marijuana with intent to deliver on October 29, 1999, and additionally moved to revoke appellant's suspended imposition of sentence. After a trial on January 4, 2000, and additional proceedings on February 7 and 10, 2000, appellant was convicted of possession of marijuana and his prior suspended imposition of sentence was revoked. This appeal followed.

For reversal, appellant contends that the evidence is insufficient to support his conviction and revocation. We cannot address these issues, however, because they have not been preserved for appeal. Although appellant moved to dismiss on sufficiency grounds after the State rested, he did not specify the respect in which the evidence was insufficient, and the motion was not renewed at the close of all the evidence.

Arkansas Rule of Criminal Procedure 33.1 provides that:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.

(b) 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.

(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 of 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.

The provisions of Rule 33.1 apply to revocation proceedings as well as to trials. Miner v. State, 342 Ark. 283, ___ S.W.3d ___ (2000). By failing to point out the perceived inadequacies in the proof to the trial judge, appellant deprived him of an opportunity to address this issue, and we cannot address it for the first time on appeal. See Thompson v. State, 342 Ark. 365, ___ S.W.3d ___ (2000); Crisp v. State, 341 Ark. 893, 20 S.W.3d 394 (2000).

Affirmed.

Roaf and Baker, JJ., agree.