Jasper Lee Vick v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JASPER LEE VICK

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-634

February 23, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR 04-634]

HON. WILLIAM PROCTOR, JR., CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

After a jury found appellant Jasper Lee Vick guilty of being a felon in possession of a firearm, he was sentenced to eight years' imprisonment in the Arkansas Department of Correction. Vick appeals his conviction, arguing that the State failed to provide substantial evidence that the implement he possessed was a firearm. We affirm.

On July 21, 2003, the State filed an amended, two-count information alleging that on or about December 4, 2002, Vick illegally possessed a firearm and committed criminal mischief in the first degree. On the day of trial, just after the jury was seated, the trial court dismissed the criminal mischief charge against Vick. However, he stood trial on the charge of being a felon in possession of a firearm. After the State's case-in-chief, Vick's counsel moved for a directed verdict by stating, "Your Honor, at this time I would like to make a motion for a directed verdict based upon the fact the State has failed to make a prima facie case that Jasper Vick was in possession of a firearm." The motion was denied. The directed-verdict motion was renewed after Vick rested his case; however, Vick failed to get a ruling on his renewed motion. The State then put on a rebuttal case, and Vick again renewed his motion. This time he did obtain a ruling-the trial court denied his motion once again.

On appeal, Vick argues that trial court committed reversible error by denying his motion for a directed verdict because the State failed to prove that he possessed a firearm within the meaning of Ark. Code Ann. § 5-1-102(6) (Supp. 2003). However, we are unable to reach the merits of Vick's argument because it is not properly preserved for appellate review. Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that

[a] motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. 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.

Ark. R. Crim. P. 33.1(c) (2004); see, e.g., Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). In his directed-verdict motions, Vick failed to specify how the State's case was deficient as required by Ark. R. Crim. P. 33.1. Although Vick's defense counsel identified the element in which he claims the State's proof was insufficient-possession of a firearm-he did not identify the respect in which the evidence was deficient. Indeed, Vick's assertion that the State did not make a prima facie case as to this element did not place the trial court on notice of the particularized deficiency he argues on appeal-that the implement he possessed was not a firearm within the meaning of Ark. Code Ann. § 5-1-102(6). Because Vick's motions for directed verdict were not specific enough to preserve the issue of whether the implement Vick used was a firearm for appellate review, we do not reach the merits of his argument. Accordingly, the decision of the trial court is affirmed. See Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002).

Affirmed.

Pittman, C.J., and Gladwin, J., agree