Henry Dahl Kelton Adams v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

HENRY DAHL KELTON ADAMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-852

February 8, 2006

APPEAL FROM THE POLK COUNTY CIRCUIT COURT

[NO. CR2004-126]

HON. JERRY WAYNE LOONEY, CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Henry Dahl Kelton Adams was convicted by a Polk County jury of two counts of sexual indecency with a child. He was sentenced as an habitual offender to consecutive fifteen-year terms in the Arkansas Department of Correction and fined a total of $20,000. On appeal, he challenges the sufficiency of the evidence; however, we hold that his argument is not preserved for our review.

At the close of the State's case, Adams's trial counsel made the following directed-verdict motion: "Your Honor, at this time I would ask for a directed verdict because I don't believe they have proved the elements of any crime taking place that they are alleging." The motion was denied. Adams did not call any witnesses, but nonetheless renewed his directed-verdict motion, by stating the following:

Again, Your Honor, I wish to renew my previous motions for a directed verdict. I don't believe the State has met its burden on the proof. I believe, Your Honor, still there is enough of a question as to what actually happened, so, the State has not met the hurdle it's supposed to hit.

Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that a criminal defendant make a specific directed-verdict motion to preserve a challenge to the sufficiency of the evidence. The rule states in pertinent part:

(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 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.

Id. Our supreme court has determined that Rule 33.1 must be strictly construed. See Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). Therefore, because Adams's directed-verdict motion did not refer to any specific element of proof that he believed was deficient, we hold that his challenge to the sufficiency of the evidence is not preserved for our review.

Affirmed.

Neal and Bird, JJ., agree.