Ray Willie Sawyer v. State of Arkansas

Not Designated for Publication

Arkansas Court of Appeals

Josephine Linker Hart, Judge

RAY WILLIE SAWYER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-00041

October 24, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR00-238]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Ray Willie Sawyer was convicted of two counts of first-degree stalking of the victim, Lovetrice Maha. For reversal, appellant asserts that there was insufficient evidence to support the convictions, and, therefore, the trial court erred in denying his motion for directed verdict. Because appellant failed to preserve this argument for appellate review, we affirm.

The State charged the appellant with two counts of first-degree stalking and one count of violation of a protection order that was later nol prossed. At a bench trial, appellant moved for a directed verdict on the stalking charges, arguing that the State had failed to prove that he harassed Maha. The court denied the motion. At the close of his defense, appellant renewed his motion, which was again denied. The State then presented Detective Deborah Carter as a rebuttal witness and asked her a single question. Appellant did not renew his motion for directed verdict following the State's rebuttal witness. The court found appellant guilty of both counts. From that order comes this appeal.

Appellant argues on appeal that the evidence was insufficient to support his convictions and

the

court erred in denying his motion for directed verdict. Rule 33.1 of the Arkansas Rules of Criminal Procedure1 requires a defendant to renew his motion for directed verdict at the "close of all the evidence." Our supreme court has repeatedly and emphatically held that, in order to preserve for appeal the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State's case and at the close of the whole case. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999) (citing Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994); Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991)).

Counsel for appellant moved for a directed verdict at the close of the State's case-in-chief and renewed the motion at the close of his case-in-chief; however, the motion was not renewed after the State presented a rebuttal witness. Therefore, we conclude that appellant failed to preserve the question of the sufficiency of the evidence for review and thus, without reaching the merits, we affirm.

Affirmed.

Jennings and Neal, JJ., agree.

1 Rule 33.1(b) of the Arkansas Rules of Criminal Procedure provides:

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.