Anthony Waits v. State of Arkansas

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ar03-324

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR03-324

MARCH 31, 2004

ANTHONY WAITS AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR-2002-1204] v.

STATE OF ARKANSAS HONORABLE CHRIS PIAZZA, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant Anthony Waits was convicted in a bench trial of commission of a terroristic act, first-degree battery, and possession of a firearm by a felon. He was sentenced to serve three concurrent 120 month sentences. On appeal, appellant challenges the sufficiency of the evidence used to convict him. For the reason stated below, we are compelled to affirm.

On January 2, 2002, victim Chris Goldsby was awakened by a loud knock at the front door of his home. Goldsby got out of bed to answer the door. He saw one black male standing at the front door and two standing in the street. The man at the front door identified himself as "A-1" and said he was looking for Goldsby's cousin, Michael Carter.

Goldsby testified that he did not recognize A-1, so he returned to his bedroom, dressed, and grabbed a handgun. Goldsby called his cousin at work and told him that someone named A-1 was at the door looking for him. Carter told Goldsby that he did not recognize the name and asked to speak to A-1. A-1 stepped inside, and Goldsby testified that A-1 and his cousin exchanged words.

When A-1 hung up the phone, Goldsby asked him, "what's up?" Goldsby testified that:

A-1 said that Mike told him he would holler at him later and handed me back the phone. He turned and was going to walk out the door. I bent down to hang the phone up and when Ilooked up he had a gun out. Not thinking I just immediately grabbed at the gun. We struggled, [and] I forced him back out [of the] house. Once I got him out of the house, my main thing was to get the door locked before these two big guys got up against the door. Once I closed the door and I heard the latch click, I turned the lock. That's when I heard the first shot. I immediately jumped behind the bar for my gun, and I heard the second shot. By the time I heard the second shot, I was shooting back at them. I returned three shots in self-defense.

A bullet entered Goldsby's right leg and exited his left leg, and Goldsby later underwent surgery for his injuries. Goldsby subsequently identified a man in a photo spread that he said shot him. The man Goldsby identified was the appellant, who was also known as A-1.

Appellant was subsequently arrested and charged with the commission of a terroristic act, first-degree battery, and possession of a firearm by a felon. He was convicted and sentenced in a nonjury trial to ten years' imprisonment. It is from this conviction that the appeal is brought.

On appeal, appellant challenges the sufficiency of the evidence used to convict him. Appellant begins his argument by advising the court that his directed-verdict motion was made at the conclusion of the case, and that, although he only argued for the lesser charge of second-degree battery instead of first-degree battery, this defect "in form over substance should not affect the appellant's right to argue his other two convictions." This argument, however, is of no merit.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that if a motion for dismissal is made in a nonjury trial, it shall be made at the close of all the evidence. The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. See Ark. R. Crim. P. 33.1(c). Furthermore, a motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. Id. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. See id.

In the instant matter, appellant failed to make a motion for dismissal at the close of all of the evidence. During the sentencing proceeding, which appellant coins in his abstract as the "Post-Trial Motion for Directed Verdict," appellant admittedly stated as follows:

Your Honor, the only thing I would request, I guess, would be you found him guilty, never did really expressly say what, I would make some argument that he should have been found guilty of battery second, a reduced charge just because the injury wasn't too bad.

We agree with the State that this statement does not amount to a motion to dismiss for lack of sufficient evidence. See Raymond v. State, ___ Ark. ___, 118 S.W.3d 567 (2003). Even if it could be construed as a challenge to the sufficiency of the evidence for the battery charge, the challenge was made after the judgment was rendered and was therefore too late. Hence, the sufficiency issue is not preserved for appellate review. Accordingly, we affirm.

Affirmed.

Vaught and Roaf, JJ., agree.