Tyrone Lamont Jackson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

TYRONE LAMONT JACKSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-490

NOVEMBER 14, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION, [NO. CR00-201]

HONORABLE JOHN BERTRAN

PLEGGE, CIRCUIT JUDGE

AFFIRMED

Appellant Tyrone Jackson was charged in Pulaski County Circuit Court with residential burglary, felony theft of property, and misdemeanor theft by receiving. These charges were tried to the bench, and the trial judge found him guilty of misdemeanor theft by receiving. Appellant appeals his conviction for which he was ordered to serve one year of probation, to pay restitution of $1800 in that year, and to pay a fine and court costs. He argues that there is insufficient evidence to support his conviction. We affirm his conviction because we cannot reach the merits of his argument.

Appellant asserts that the trial court erred in denying his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorableto the State and

consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000).

Theft by receiving is codified under Ark. Code Ann. § 5-36-106 (Repl. 1997) as follows:

(a) A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.

(b) For purposes of this section, "receiving" means acquiring possession, control, or title or lending on the security of the property.

(c) The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen.

The State argues that we cannot reach the merits of appellant's appeal.1 We agree, because appellant's motion for directed verdict was not specific enough to apprise the trial court of the deficiency in the State's proof. Appellant moved for directed verdict at the close of the State's case, reproduced in its entirety:

Your Honor, I move for a directed verdict. The State has not made a prima facie case that Eric Wilson [co-defendant] and Tyrone Jackson committed residential burglary. I think the best that they've shown is Lesha Dunnick [victim] gave her car keys to Tyrone and Eric was with him. That's it. That's all we've seen from them as far as that goes. And I'll move for directed verdict on the theft of property charge listed in count two. They've not proven that Eric Wilson and Tyrone Jackson committed thatoffense as well.

A general renewal of these motions was offered at the close of all of the evidence. Appellant contends that his conviction arose from the theft of property charge in Count II of the information.2

In order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict which advises the trial court of the exact element of the crime that the State has failed to prove. Conner v. State, 334 Ark. 457, 978 S.W.2d 300 (1998). A general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. Id.; see, e.g., Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997) (claiming that the State failed "to prove a prima facie case"); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996) (declaring that the State "failed to meet its burden of proof"). This vague and general motion did not specify in any manner the deficiency in the State's proof. Therefore, the sufficiency challenge is not properly preserved for appeal.

We affirm.

Neal and Crabtree, JJ., agree.

1 The State asserts that appellant did not move at all for directed verdict on the conviction entered in the judgment and commitment order (Count III), and this is the reason that appellant's sufficiency argument is waived. We need not answer that query because, even if appellant's motion addressed the conviction entered, the motion still fails to preserve the issue for our review.

2 The comments from the trial judge made it clear that the court's finding of guilty on theft by receiving resulted from the proof adduced on Count II, theft of property from the residence of Mr. and Mrs. Dunnick.