Frederick Lamont Dillard v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR03-478

FEBRUARY 11, 2004

FREDERICK LAMONT DILLARD AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR01-405]

V.

STATE OF ARKANSAS HONORABLE JOHN PLEGGE, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

This appeal challenges the sufficiency of the evidence used to convict appellant of battery in the second degree. Specifically, appellant argues that the evidence produced by the State was insufficient to identify him as the assailant. The State called several witnesses who testified that the appellant, while at a nightclub on May 2, 1999, struck Lafoxy Jefferson on both the head and wrist with a beer bottle. The court, sitting as trier of fact, found appellant guilty and sentenced him as a habitual offender to four years in the Arkansas Department of Correction. Because appellant inadequately preserved his sufficiency challenge, we cannot consider his argument on appeal.

Rule 33.1 is strictly construed. See Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). Rule 33.1(b) 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. Furthermore, if a motion for dismissal is made at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all the evidence. See Ark. R. Crim. P. 33.1(b). 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).

In the instant case, defense counsel made a sufficient directed-verdict motion at the conclusion of the prosecution's evidence, and the court denied the motion. Thereafter, the defense conducted its case-in-chief, and following the conclusion of its evidence, the defense stated:

Defense Counsel: Your Honor, at this time we would rest and I would like to be heard in closing.

Court: Okay, would the State like to be heard?

Prosecution: Yes, Your Honor.

Court: Okay. You go first.

Both the prosecution and defense counsel made closing arguments; however, appellant failed to renew his motion at the close of all the evidence. Hence, his sufficiency challenge is not preserved for appellate review.

Affirmed.

Pittman and Vaught, JJ., agree.