Kevin Dale Pennington v. State of Arkansas

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OCTOBER 5, 2005


[NO. CR-04-303-2]



Sam Bird, Judge

Appellant Kevin Dale Pennington was convicted by a jury of breaking or entering, theft of property, and fleeing. He was sentenced to two years in a regional punishment facility. As his sole point on appeal, he contends that the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to support his convictions for breaking or entering and theft of property. Because he failed to make a specific motion as required under Rule 33.1 of the Arkansas Rules of Criminal Procedure, we find that his argument was not preserved for appeal; thus, we affirm.

At trial, Coby Watson testified that on June 18 or 19, 2004, he observed a man and a woman going "house to house" in his neighborhood. He said that they "appeared to be checking out people's houses and their stuff." He also said that they walked up and down 41st Street "looking at just about every neighbor's car." Watson said that he became suspicious and later confronted them, and the man denied stealing anything. The next morning, Watson found that speakers and CDs were missing from his truck.

Detective Cletus Hudson of the Van Buren Police Department also testified at trial. He said that on June 22, 2004, he was assigned to a case involving the theft of stereo speakers and CDs; that the victim in the case described the possible perpetrators; and that the description of the male suspect matched that of Kevin Pennington. Hudson made contact with Pennington, who agreed to talk to police. Hudson said that, when he questioned Pennington about the incident on 41st Street, Pennington initially said that he "didn't know anything about it," but he later admitted to stealing CDs and speakers out of the truck. Hudson charged Pennington with breaking or entering and theft of property.

Detective Donald Eversole of the Van Buren Police Department testified that he was responsible for recording the interview between Hudson and Pennington. Eversole also said that, the first time Pennington was interviewed, he denied "doing any part of the theft" but admitted that he was in the area. According to Eversole, Pennington later said that he took the speakers and CDs from Watson's vehicle. Eversole said that Pennington was subsequently arrested and that, while he was being held in the booking area, Pennington ran down the hallway before being caught by another officer.

Detective Steve Weaver testified that he spoke with Pennington about the theft incident and that Pennington admitted to taking some speakers and some CDs. The State also introduced into evidence a signed statement from Pennington, in which he admitted that he "took some CDs out of a ... pickup truck."

At the close of the State's case, counsel for Pennington moved to dismiss, stating as


Your Honor, we would move to with reference to the ... breaking or entering charge and the theft charge, we would move to dismiss on the basis that the State has failed to present a prima facie case that anything-that Kevin Pennington had anything to do with this, these two offenses as charged in the information.

The court denied the motion. Pennington renewed his motion at the close of all of the evidence, and the court again denied it.

It is well-settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.

Rule 33.1 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. A motion for directed verdict shall state the specific grounds therefor.

. . . .

(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. 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. ...

Here, Pennington's sole argument as to the insufficiency of the State's evidence is that the State failed to meet its burden of proof under the "corpus delicti" rule. However, he has failed to preserve this issue for appellate review because his motion at trial-that the State had failed to make a prima facie case that Pennington "had anything to do" with the two offenses charged in the information-was not sufficiently specific to apprise the trial court of the basis of his motion. In Travis v. State, 328 Ark. 442, 446, 944 S.W.2d 96, 97 (1997),our supreme court held that a challenge to the sufficiency of the evidence was not preserved for appeal where the following motions were made by appellant's counsel:

In this case specifically, I guess, the State has failed to prove or to even show that there is any evidence to indicate that Phillip Travis specifically has engaged in any activity that would be constituted as rape and burglary in this matter.

Your honor, at this time I would like to renew my motion for directed verdict. Specifically that I stated, I don't believe the State's presented evidence to go to meet their burden on both counts of the residential burglary and the rape charge. Specifically I don't believe, other than some broad generalized statements made from [the victim], there's any other evidence at all connecting Phillip Travis to a crime.

In the case at bar, as in Travis, supra, counsel for Pennington has failed to make a sufficiently specific motion to preserve his argument for appellate review. His motion failed to specifically identify how the State was deficient in meeting its burden of proof under the "corpus delicti" rule; thus, the motion did not comply with the requirements of Ark. R. Crim. P. 33.1. We therefore decline to reach the merits of the argument.


Baker and Roaf, JJ., agree.