Roxie Marie Moreno v. State of Arkansas

ar05-111

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ROXIE MARIE MORENO

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR 05-111

September 28, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR04-1761]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Roxie Moreno, was tried by the court and found guilty of the offenses of DWI, fourth offense; refusal to submit to a chemical test; and driving with a suspended license. She does not challenge the conviction for driving with a suspended license, and we affirm the other two convictions.

Chris Clark, an officer with the Sherwood Police Department, testified that on February 29, 2004, he observed appellant driving a white Ford Escort on Landers Road at 2:26 a.m. He stated that her vehicle was moving at a slow rate of speed and that when he checked her license tag it "returned to a white Cavalier," rather than a white Ford Escort. He explained that he signaled for her to stop and that in doing so she drove her vehicle into a pile of sheetrock. Officer Clark stated that appellant told him she did not have her license or identification with her; that she did not have proof of insurance or registration; and that she identified herself as Barbara Standridge. He stated that he smelled a strong odor of intoxicating beverage; that appellant's eyes were glassy and bloodshot; and that her speech was slurred. He testified that he later identified her as Roxie Moreno.

Officer Clark stated that he had appellant exit her car and that she was unsteady on her feet. He said that when he asked her if she had been drinking, she told him it had been five hours since she had had a drink. Clark testified that he had her perform some sobriety tests. On the horizontal-gaze nystagmus test, he said that "she showed all six cues." On the walk-and-turn test, he stated that she was not able to stand or walk as instructed. On the one-leg stand test, he testified that she could not stand as instructed.

Clark stated that he placed appellant under arrest at that time. He testified that based upon his training, experience, observation of her driving, and the results of her sobriety tests, he formed the opinion that she was impaired and unsafe to drive.

At the police station, Clark stated that he set up a breathalyzer exam for appellant and read her her rights. He stated that she initially refused to take the test, but then agreed to do so. He said that the machine was operating properly; that he explained to her how to blow into the tube; and that she kept blocking the end of the tube with her tongue. He said that she took the mouthpiece off, threw it on the ground, and stated, "Charge me with refusal."

In addition, Officer Clark summarized the facts that she was driving a white Ford Escort, while the license plate belonged to a white Cavalier; that her license was suspended for DWI and she had some outstanding warrants; that she gave a false name and date of birth; that she ran into a pile of sheetrock when he pulled her over; and that in his opinion she was intoxicated when he pulled her over. On cross-examination, he explained that he did not inform appellant of her right to have additional tests because she had not given him a proper first test.

Debbie Stokes, who worked as a detention officer at the Sherwood Police Department, testified that she was present the night that appellant was brought to the jail. She stated that she heard the rights form read word for word to appellant; that appellant used her tongue to interfere with the performance of the breathalyzer test; that she told appellant not to put her tongue on the tube; and that appellant took the tube and threw it on the floor and said that she refused. Stokes also testified that she could smell the odor of intoxicants on appellant and that her speech was slurred. The State submitted evidence of appellant's prior DWI convictions and then rested its case.

For her first point of appeal, appellant contends that the trial court erred in denying her motion for a directed verdict on the DWI and the refusal-to-submit-to-chemical-testing charges because there was not substantial evidence to establish that she was intoxicated beyond the legal limit on the night in question. She argues that there was never a definitive blood-alcohol level established; that she gave reasonable explanations concerning why she might have appeared to be intoxicated; and that she also explained her failure to submit to chemical testing. We find no error.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed 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 in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. 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. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.

(Emphasis added.) In Raymond v. State, 354 Ark. 157, 161-62, 118 S.W.3d 567, 570 (2003), our supreme court explained:

This court recently interpreted Rule 33.1 in the context of a bench trial in State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002). In Holmes, the appellant moved for a directed verdict following the close of the State's case during his bench trial but failed to renew the motion at the close of all the evidence. The trial court convicted Holmes on two of the three charges but later set aside his convictions. The State appealed, arguing that the trial court erred in granting Holmes's motion to set aside the verdicts as he had waived any question pertaining to sufficiency of the evidence by failing to make the appropriate motion at the close of all the evidence. We agreed and said:

In the present case, Holmes's motion for directed verdict was not made at the close of all the evidence. Rather, it was included during Mr. Kearney's closing argument, as quoted above. Under Etoch, supra, we adhere to a strict interpretation of our rules, and we hold that Holmes did not comply with Ark. R. Crim. P. 33.1(b) and (c). In order to preserve the question of the sufficiency of the evidence, Holmes should have made his motion for directed verdict at the close of all the evidence before closing arguments. Because of his failure to do so, we hold that the trial court erred in considering his motion to set aside the verdict for insufficient evidence, and we reverse and remand with instructions to reinstate Holmes's convictions and sentence.

347 Ark. at 693, 66 S.W.3d at 643.

In the instant case, Raymond failed to move to dismiss the State's case based on insufficient evidence at the close of all the evidence, as required by Ark. R. Crim. P. 33.1. In order to preserve the question of sufficiency of the evidence, Raymond was required to move to dismiss prior to closing arguments. Because he failed to do so, this court is precluded from reviewing his sufficiency claim.

(Emphasis added.)

Here, appellant never moved for a directed verdict. Rather, her attorney gave what amounted to a closing argument, concluding with the following:

Due to all the weight of the evidence in this matter, Your Honor, and because the State does have the burden of proof of showing beyond a reasonable doubt on this matter, we feel the State, in fact, has not met its burden of proof, and, therefore, the charge of DWI in the fourth offense should be dismissed.

(Emphasis added.) Additionally, even though she argued earlier in her "closing" that she did not refuse to submit to the breathalyzer test, she only sought "dismissal" of the DWI fourth offense charge, not the refusal-to-submit charge. Finally, she did not specify the argument that she now raises on appeal, i.e., that there was never a definitive blood-alcohol level established. Appellant did not properly preserve her challenge to the sufficiency of the evidence, and, therefore, we do not address the issue.

For her remaining point of appeal, appellant contends that the trial court erred in admitting testimony regarding "the breathalyzer incident" because Arkansas Code Annotated section 5-65-204(e) (Repl. 1997) prohibits introduction of evidence of chemical testing unless the suspect is offered a second, independent test. This issue was not properly preserved because appellant raised no objection concerning the introduction of this testimony. Therefore, we do not address it.

Affirmed.

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