Deborah Rouse v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DEBORAH ROUSE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-336

April 10, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-870]

HONORABLE MORRIS THOMPSON, CIRCUIT JUDGE

AFFIRMED

Appellant, Deborah Rouse, appeals the trial court's denial of her motion for a directed verdict. She asserts that the State failed to introduce substantial evidence that, as an accomplice, appellant's purpose was to facilitate or promote the first-degree sexual abuse of the victim. We affirm.

On May 24, 2000, appellant, a youth services worker, was convicted of first-degree sexual abuse against A.D. In April 1998, A.D. was incarcerated in the Central Arkansas Observation and Assessment Center, a diagnostic center in North Little Rock for juvenile offenders. At trial, the State proved that the victim was sexually abused by D.T., another inmate, with the aid of two other juveniles. The State's theory at trial was that appellant acted as an accomplice by moving A.D. into the same cell as D.T. and encouraging D.T. tosexually abuse A.D. Further, the State argued that appellant was an accomplice in that she

had a legal duty to prevent the sexual abuse of A.D. and failed to do so. 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.

Rule 33.1(b) and (c) of the Arkansas Rules of Criminal Procedure1 provides that in order to preserve for appeal a challenge to the sufficiency of the evidence in a nonjury trial, a defendant must move for a directed verdict at the "close of all the evidence." Further, 33.1(c) provides that "[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." Because appellant did not renew the motion for directed verdict at the close of all the evidence, that is, after the rebuttal testimony presented by the State, appellant failed to

preserve the question of the sufficiency of the evidence for review. See King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999)(holding that a challenge to the sufficiency of the evidence was not preserved for appeal in a jury trial where appellant failed to renew his motion for a directed verdict at the close of the case). Thus, without reaching the merits of appellant's challenge to the sufficiency of the evidence, we affirm.

Affirmed.

Robbins and Baker, JJ., agree.

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

(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 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. ....