David Carroll Goodwin v. State of Arkansas

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ar04-851

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

DAVID CARROLL GOODWIN,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-851

JUNE 15, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT,

FORT SMITH DISTRICT,

(NO. CR-030581A),

HON. NORMAN WILKINSON, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant David Carroll Goodwin was convicted by a jury of manufacturing methamphetamine, possessing methamphetamine with intent to deliver, and being a felon in possession of a firearm. He was sentenced to twenty years in prison. On appeal, his sole argument is that the evidence was insufficient to support his convictions. Because he failed to preserve this argument for appeal, we affirm.

Rule 33.1(a) of the Arkansas Rules of Criminal Procedure states, in relevant part, as follows:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence....

....

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required ... above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment....

(Emphasis added.) Rule 33.1 is strictly construed. State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002). In Holmes, our supreme court recognized that, where an appellant's motion for a directed verdict was not made at the close of all the evidence but rather was included

during appellant's closing argument, such motion did not comply with the requirements of Rule 33.1. Id. The court specifically stated that, in order to preserve the question of the sufficiency of the evidence, appellant should have made his motion for a directed verdict at the close of all the evidence and before closing arguments. Id.

Here, Goodwin clearly failed to renew his motion for a directed verdict at the close of all of the evidence as required by Rule 33.1(a). In fact, Goodwin did not renew the motion until closing arguments had been completed, the trial judge had instructed the jury, and the jury had retired to begin its deliberations. We must therefore affirm because Goodwin's challenge to the sufficiency of the evidence was not preserved for appellate review.

Affirmed.

Griffen and Vaught, JJ., agree.