David Brown v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

DAVID BROWN,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-264

OCTOBER 31, 2001

APPEAL FROM THE POPE COUNTY CIRCUIT COURT,

NO. CR99-512,

HON. JOHN S. PATTERSON,

JUDGE

AFFIRMED

Appellant David Brown was charged with battery in the first degree, unlawful discharge of a firearm from a vehicle, and first-degree criminal mischief. He made a directed verdict motion at the close of the State's case, contesting the unlawful discharge of a firearm charge; the judge denied the motion. Brown then presented his case and at the conclusion of his evidence, renewed his motion for directed verdict and, additionally, moved for a directed verdict on the criminal mischief charge. These motions were denied. The jury convicted Brown of the first-degree criminal mischief charge and acquitted him on the other charges. Brown appeals, contending there was insufficient evidence to support the criminal mischief conviction.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that:

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.

. . .

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.

This rule is stated in the conjunctive, clearly requiring the motion to be made both at the close of the prosecution's case and at the close of all evidence. See King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).

In order to preserve the sufficiency challenge as to the criminal mischief charge, it was necessary for Brown to move for a directed verdict on this charge at both the close of the State's case-in-chief and the close of all evidence. Because Brown did not move for a directed verdict on the criminal mischief charge at the close of the State's case, he is procedurally barred from challenging the sufficiency of the evidence on appeal.

Affirmed.

Griffen and Crabtree, JJ., agree.