Lenois King v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

LENOIS KING

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 01-142

NOVEMBER 7, 2001

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-4023]

HONORABLE JOHN LANGSTON, CIRCUIT JUDGE

AFFIRMED

Lenois King appeals from a conviction for theft by receiving and a sentence of twenty-seven years in the Arkansas Department of Correction. On appeal, King argues that the evidence was insufficient to support the verdict.

At a jury trial on September 6, 2000, Officer Chris Jarvis testified to the following facts. On September 2, 1999, Officer Jarvis observed a truck driven by King veer into his lane and force his vehicle to the curb. The officer turned around to follow the truck, called in the license plate number, and discovered that the truck was stolen. The officer observed the truck turn into the parking lot of a store and the occupants of the truck enter the store. The officer then entered a grocery store across the street where a fellow police officer was serving as a security guard. One of the female occupants of the truck entered the grocery store and was arrested without incident. King then started to enter the grocery store, and when the officers told him to stop, he fled the store. After a struggle, King was apprehended in the parking lot by the officers. The officers found broken glass inside the truck,and a section of the steering column had been broken out. Mike Willingham, fleet management officer for Citadel Broadcasting, testified that the truck had been stolen from the business, which was approximately four blocks from the grocery store. He explained that the passenger-side window had been shattered, and that there was glass in the parking lot of Citadel Broadcasting. At the close of the State's case, King made a general motion for a directed verdict on the theft by receiving charge.1 After the defense rested, King renewed his motion for a directed verdict, stating that the elements had not been met.2 King was found guilty of theft by receiving, fleeing, and resisting arrest, and he was sentenced to twenty-seven years.

A challenge to the sufficiency of the evidence is made through a motion for a directed verdict. Ark. R. Crim. P. Rule 33.1. The test is whether there is substantial evidence to support the verdict, considering only the evidence which supports the guilty verdict. Pettigrew v. State, 64 Ark App. 339, 984 S.W.2d 72 (1998). Substantial evidence is evidence of such certainty and precision as to compel reasonable minds to reach a conclusion one way or the other. Id. On review, we do not weigh the evidence presented at trial or the credibility of the witnesses. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998).

On appeal, King argues the evidence was insufficient to prove he was in actual or constructive possession of the vehicle in order to sustain the verdict of guilty of theft by receiving. The State counters that King's motion for directed verdict is not preserved for review, because he failed to make a specific motion for a directed verdict at the close of the State's case or when Kingrenewed his motion for directed verdict. Alternatively, the State argues that substantial evidence supports his conviction for theft by receiving. The State is correct.

General motions for directed verdict are insufficient to preserve challenges to the sufficiency of the evidence. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). The motion must specifically identify the element of the crime for which proof is missing in order to preserve the issue for appeal. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). A motion for directed verdict stating generally that the State failed to make a prima facie case does not suffice. Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997). As long as a specific motion is made at the close of the State's case, a general renewal of the motion is sufficient to preserve the issue for appeal. Dale v. State, 55 Ark. App. 184, 935 S.W.2d 274 (1996). The rationale behind this requirement is that "when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof." Walker, supra, at 109 (quoting Brown v. State, 316 Ark. 724, 726, 875 S.W.2d 828, 830 (1994)).

At the close of the State's case, King made a general motion for directed verdict, stating only that the evidence was insufficient. When the defense rested, King renewed his motion for directed verdict by stating that the State had failed to prove the elements on the charge of theft by receiving. King did not specifically challenge any elements of the crime nor allege which elements were missing in his initial motion. Consequently, King's motions for directed verdict were not adequate to preserve his challenge to the sufficiency of the evidence for appeal. However, even if we were to reach the merits of the appeal, the evidence is overwhelmingly sufficient to sustain the conviction for theft by receiving.

Affirmed.

JENNINGS and BIRD, JJ., agree.

1 King made the following motion for directed verdict: "I move for a directed verdict one, on the sufficiency of the evidence."

2 King stated the following to renew his motion for a directed verdict: "We'd like to renew our motion for a directed verdict on Count I, insufficiency of the evidence. I don't think the State has met the elements that have been set forth in the felony information."