Harold Glenn Davies v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR02-614

February 19, 2003

HAROLD GLENN DAVIES AN APPEAL FROM FAULKNER

APPELLANT COUNTY CIRCUIT COURT

[CR01-262]

V. HON. MICHAEL A. MAGGIO, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This appeal arises from a DWI-conviction in Faulkner County. On appeal, appellant's sole argument consists of his claim that the trial court erred in finding him guilty after previously granting his motion for directed verdict. We affirm.

This case came on appeal before the Faulkner County Circuit Court as a bench trial. At the close of the prosecution's case, appellant moved for a directed verdict. In support of his motion, he argued that the police officer lacked probable cause to gain lawful access to appellant on private property where he was sitting in a truck. The trial court rejected that argument and denied the motion for a directed verdict on that specific basis-and appellant chose not to argue that point on appeal. However, in a second prong of his motion for adirected verdict, appellant claimed that he could not be guilty of driving while intoxicated because he was on private property at the time of the offense. After a discussion between counsel and the court, the court then stated:

[W]hile Mr. Davies was found in the driver's seat, with the car running, on private property, what I'm going to find is for the appellant. I'm going to-for the directed verdict is what I'm going to find. So, I'm finding for your motion, that being on private property-."

However, before the court could conclude its remarks, the prosecutor interrupted, asking for a chance to submit case law making it clear that being on private or public property has no bearing on whether a person is guilty of driving while intoxicated. In response, the trial court agreed to consider case law submitted to it by the prosecution and stated that it would "withhold [its] decision" until it received the case law. In the meantime, the trial court invited appellant to go ahead and present his evidence and that it would "hold" ruling on the directed-verdict motion. Appellant's counsel did not object and proceeded.

At the end of appellant's case, the trial court asked the parties to submit case law in support of their arguments on the pending motion for a directed verdict. Again, appellant did not object to the court's request or its decision to defer ruling. Fifteen days later, the court reconvened and found appellant guilty of driving while intoxicated, concluding that under Arkansas case law it was irrelevant that appellant was on private property at the time. Appellant did not renew his motion for a directed verdict at any time, nor otherwise object. From the conviction and sentence of a $325 fine and one day's confinement against credit of one day, this appeal arose.

Conviction After a Postponed Directed Verdict Ruling

Appellant argues that the trial court erred when it found him guilty of driving while intoxicated because previously, the court had allegedly granted a motion for directed verdict. Thus, appellant does not challenge the sufficiency of the evidence. We review questions of law de novo. Bramucci v. State, 76 Ark. App. 8, 62 S.W.3d 10 (2001). At the outset, we note that appellant never objected to the trial court's decision to delay final ruling on the motion for directed verdict. As such, it is questionable whether appellant even properly preserved his issue for review because Arkansas law requires that an appellant must have made a contemporaneous objection in the proceedings below to have a claim considered on appeal. Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000). Instead, appellant alleges that the trial court actually granted his motion for a directed verdict-which it clearly did not. The prosecutor interrupted the trial judge while he was about to rule on the motion from the bench. In response, the court deferred ruling on the motion and only subsequently ruled on it.

Therefore, we hold that the trial court did not err when it found appellant guilty of driving while intoxicated because the trial court did not grant appellant's motion for directed verdict. For his argument, appellant relies on United States v. Dossey, 558 F.2d 1336 (8th Cir. 1977). In that case, the United States Court of Appeals for the Eighth Circuit cited United States v. House, 551 F.2d 756 (8th Cir. 1977), for the proposition that a district court errs by reserving its ruling on a motion for a judgment of acquittal made at the close of the government's case. However, in House, the same court made it clear that this holding was premised upon the then-extant version of Fed. R. Crim. P. 29, governing motions forjudgment of acquittal. Since then, Rule 29 has been amended and now expressly authorizes district courts to reserve rulings on motions for judgment of acquittal made at the close of the government's case. United States v. Habhab, 132 F.3d 410 (8th Cir. 1997). Furthermore, Ark. R. Crim. P. 33.1 (2002), governing motions for a directed verdict in Arkansas state courts, neither addresses, nor prohibits trial courts from reserving rulings on motions for a directed verdict at the close of the State's case. Thus, we find appellant's reliance on Dossey and House inapposite.

Notably, even if House applied, the United States Court of Appeals for the Eighth Circuit identified certain circumstances in which the failure to rule on a motion for judgment of acquittal made at the close of the government's case is not reversible error because it is nonprejudical to the defendant. United States v. House, supra. When "at the time the motion was made, the Government had produced sufficient evidence to justify submission of the case to the jury," one such circumstance exists. House, 551 F.2d at 758.

Here, appellant was convicted of driving while intoxicated. The State had submitted evidence that appellant had been sitting in his vehicle, while intoxicated, with the engine running. The vehicle stood on private property when the police officer found appellant sitting in it. However, this fact, under established Arkansas law, does not bear upon the success of a charge of driving while intoxicated. Hill v. State, 315 Ark. 297, 868 S.W.2d 44 (1993). Consequently, the State's evidence constituted sufficient evidence.

Affirmed.

Robbins and Bird, JJ., agree.