Angela Kowalski v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

ANGELA KOWALSKI

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-456

DECEMBER 23, 2002

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR01-2673]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

Appellant Angela Kowalski was convicted of first-degree terroristic threatening and sentenced to three years' probation. On appeal, Kowalski challenges the sufficiency of the evidence supporting her conviction. We affirm.

The victim, Donald Davis, testified that Kowalski rented a room from him, but that he was making her move because she was unable to pay her rent. On June 8, 2001, Kowalski came to Davis's residence to pick up a few boxes. Davis testified that Kowalski was angry about having to move and that she "went off the deep end a little bit." According to Davis's testimony, Kowalski told him that he should not be alive "for doing her this way."

Officer Charles Starrett was called to Davis's residence on a disturbance call. Starrett testified that when he arrived, Kowalski was sitting six or seven feet away from Davis, and they were arguing loudly. Starrett stated that Kowalski screamed seven different times that she would have killed Davis if the police had not come when they did and that if the police left her at Davis's residence, she would kill him after they left. Starrett also testified that he believed that if they hadleft Kowalski in the residence, she could have physically harmed Davis.

Kowalski argues on appeal that the evidence is insufficient to support her conviction. However, because Kowalski failed to renew her motion for dismissal after the close of all of the evidence, we are unable to address her argument. A motion for a directed verdict, or in a non-jury trial, a motion for dismissal, is a challenge to the sufficiency of the evidence. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). Under Ark. R. Crim. P. 33.1(b) (2001), a motion for dismissal must be made at the close of all of the evidence. If the defendant moves for dismissal at the conclusion of the State's evidence, the motion must then be renewed at the close of all of the evidence. Rule 33.1(b); State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002). The failure of the defendant to challenge the sufficiency of the evidence as required under Rule 33.1 constitutes a waiver of any argument on appeal pertaining to the sufficiency of the evidence to support a conviction. Rule 33.1(c) (2001); State v. Holmes, supra. Here, although Kowalski moved for dismissal at the close of the State's case, she failed to renew her motion. Thus, her argument is not preserved for appeal.

Affirmed.

Vaught and Crabtree, JJ., agree.