Brian Erving Ridley v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-240

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

BRIAN ERVING RIDLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-240

November 2, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR 04-654]

HON. CHRISTOPHER C. PIAZZA, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Brian Ridley appeals following his conviction for Class B felony residential burglary, Class D felony second-degree battery, and Class D felony first-degree terroristic threatening. Ridley argues on appeal that the trial court erred in denying his motion to dismiss the second-degree battery charge because the State failed to introduce substantial evidence that Ridley caused a serious physical injury to the victim. We affirm because Ridley did not properly preserve his argument for appeal.

With advice of counsel, Ridley waived his right to a jury trial and was tried before the judge in a bench trial. Linda Henson, Ridley's ex-girlfriend, had accused him of threatening and attacking her after they separated. She testified at trial that Ridley showed up at her house; kicked the door in, beat her in the face; and told her that if she tried to leave, he would kill her. She escaped and reported the incident to police. Henson testified that she sustained a broken nose, black eyes, and a swollen mouth from the incident. She was taken to the emergency room for treatment, and her treating physician also testified regarding her injuries.

At the close of the State's case, defense counsel made a motion to dismiss the charges and specifically stated with regard to the second-degree battery charge that "the State failed to make a prima facie case of battery. They ... failed to show that Ridley did cause serious physical injury ... with the purpose of causing physical injury." The court denied the motion. Ridley then testified in his own defense and denied that he attacked Henson. After resting its case, defense counsel renewed its motion to dismiss "on the same basis," and the trial judge again denied the motion.

On appeal, Ridley argues that the evidence was insufficient to sustain his conviction for second-degree battery. The State argues that Ridley's sufficiency argument was not preserved below, and therefore we need not reach the merits of the case. We agree that Ridley did not properly preserve this issue for appeal.

A directed-verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal and that parties may not change the grounds for an objection on appeal but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Id. at 77-78, 894 S.W.2d at 931-32. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proofon the elements of the offense. Id. at 164, 85 S.W.3d at 532. Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

(B) In a non-jury trial, if a motion for dismissal 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. 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 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.

In Walker v. State, 318 Ark. 107, 109, 883 S.W.2d 831, 832 (1994), our supreme court held that "the reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof." Furthermore, a sufficiency argument is not preserved for appellate review where defense counsel moves for the charges to be dismissed because "the State did not meet its burden of proof," Lovelady v. State, 326 Ark. 196, 197, 931 S.W.2d 430, 431 (1996), nor where defense counsel argues the State "failed to prove a prima facie case," Conner v. State, 328 Ark. 388, 391, 943 S.W.2d 582, 584 (1997).

In the present case, Ridley merely described the elements of second-degree battery in his directed-verdict motion. He did not state with specificity what element the State failed to prove nor did he supply any argument in support of his motion. Ridley renewed his generalmotion after presenting his case-in-chief. Ridley's motion for directed verdict did not comply with Rule 33.1 because it was general in nature and did not inform the trial court of the specific issues in the State's case that were being challenged; therefore, the issue is not preserved for appeal.

Affirmed.

Griffen and Roaf, JJ., agree.