Robert Elkins v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR08-375
Opinion Delivered 10-9-08
ROBERT ELKINS,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
APPEAL FROM THE CIRCUIT
COURT OF MILLER COUNTY,
ARKANSAS, NO. CR-2004-627-3;
HONORABLE KIRK D. JOHNSON,
JUDGE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
1.
APPEAL & ERROR — MOTION FOR DIRECTED VERDICT — APPELLANT ’S SUFFICIENCY -OF-THE EVIDENCE ARGUMENT WAS NOT PRESERVED FOR APPELLATE REVIEW BECAUSE APPELLANT ’S
DIRECTED -VERDICT MOTION WAS NONSPECIFIC . — To preserve a sufficiency-of-the-evidence
challenge on appeal, a clear and specific motion for directed verdict must be made to the trial
court; where the basis of appellant’s directed-verdict motion was that there were
inconsistences or flaws in the investigation and that the fact witnesses lacked credibility, it
was clear that appellant’s directed-verdict motion failed to state with specificity what the
flaws were or why certain witnesses lacked credibility; because appellant’s directed-verdict
motion was nonspecific, it was not preserved for appellate review.
2.
APPEAL & ERROR — REVIEW IN DEATH OR LIFE IMPRISONMENT CASES — ARK. SUP . CT . R.
4-3(h) DOES NOT REQUIRE REVIEW OF APPELLANT ’S SUFFICIENCY -OF-THE -EVIDENCE
CHALLENGE . — Ark. Sup. Ct. R. 4-3(h) does not mandate review when a directed-verdict
motion has not properly been made; accordingly, Rule 4-3(h) does not require review of
appellant’s sufficiency-of-the-evidence challenge.
Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.
Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.
Appellant Robert Elkins appeals from his judgment and conviction order for
aggravated robbery and rape for which he was sentenced to life imprisonment without parole.
His sole point on appeal is that there was insufficient evidence to establish that he was the
perpetrator of the alleged crimes. We affirm the judgment.
The record reflects that on the morning of June 15, 2005, at the E-Z Mart Store at
1205 East Street in Texarkana, L.H., the store’s clerk, was taking boxes to the store’s
dumpster when a black male, wearing a ski mask and armed with a silver pistol, accosted her.
He followed L.H. into the store and, while crouching behind the counter, ordered her to
fill a black duffel bag with money from the cash register. After taking the money, he ordered
L.H. to fill the bag with cartons of cigarettes. L.H. did so and then placed additional
cigarette cartons into a white E-Z Mart bag. These events were all captured on the store’s
video surveillance camera.
At the conclusion of the robbery, the man ordered L.H. to go outside to the back of
the store, where he made her kneel and perform oral sex on him. After a short time, he
ordered L.H. to stand, take her pants down, and turn around and touch her toes. He then
penetrated L.H. vaginally with his penis and asked her “if it felt good.” After a few minutes,
he withdrew before ejaculating and told L.H. to stay on the ground and not get up.
Following this, he ran north through some bushes at the rear of the building.
During the course of the robbery, the store’s alarm company had alerted the
Texarkana Police Department. Upon arriving at the store, police officers observed a man
fleeing from the scene. Although unable to apprehend the man, the police officers found a
white E-Z Mart bag containing cigarettes, a black duffel bag containing money and
cigarettes, a glove, and a mask near a house within a close distance to the store. The police
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officers sent the mask, the glove, and the duffel bag to the Arkansas State Crime Lab for
analysis.
In the course of the investigation, Elkins was developed as a suspect. On June 21,
2004, Elkins’s nephew, Frank Davis, met with the lead police investigator, Ed Chattaway.
Davis told the investigator that Elkins had told him that he had robbed the E-Z Mart of cash
and cigarettes and that he had forced the clerk to perform sexual acts at gunpoint, after which
he had ejaculated into a glove. Davis also mentioned that Elkins had told him that he had
dropped the stolen items while escaping from the police officers, and, as a result, he needed
to commit another robbery because his rent was due. Investigator Chattaway testified at
Elkins’s trial that Davis had related to him specific details of the crime that had not been
released to the public.
Melissa Myhand, a Forensic DNA Analyst for the Crime Lab, testified at Elkins’s trial
that she had tested a sample cut from the glove the police found at the scene of the crime.
Myhand stated that Alendra Carol, an evidence analyst at the Crime Lab, had conducted a
preliminary analysis on the glove sample and discovered that it contained semen. Myhand
further testified that she had tested the glove sample and discovered it contained a mixture
of the DNA from two individuals. Myhand stated that she had then requested samples to
be taken from L.H. and Elkins. Subsequently, Detective Shawana Yonts obtained and
submitted to the Crime Lab oral swab samples from both L.H. and Elkins. Myhand testified
that her analysis revealed that the mixture of DNA on the glove sample came from Elkins
and L.H.
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At the close of the State’s case, Elkins moved for a directed verdict and argued that
there was insufficient evidence to convict him of the crimes. The motion was denied, and
Elkins rested without presenting any evidence. Elkins renewed his motion for a directed
verdict, which the trial judge denied, and the case was submitted to the jury. Elkins was
convicted of aggravated robbery and rape, as already referenced, and sentenced.
As a threshold matter, this court must address the State’s argument that Elkins’s
directed-verdict motion was not preserved for review. To preserve a sufficiency-of-theevidence challenge on appeal, a clear and specific motion for a directed verdict must be made
to the trial court. Pinell v. State, 364 Ark. 353, 219 S.W.3d 168 (2005). Arkansas Rule of
Criminal Procedure 33.1 establishes the procedure for making the motion and reads 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. 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
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purposes of obtaining appellate review on the question of the sufficiency of the
evidence.
We have said that the reasoning behind this rule is “that when specific grounds are stated and
the absent proof is pinpointed, the circuit court can either grant the motion, or, if justice
requires, allow the State to reopen its case and supply the missing proof.” Pinell, 364 Ark. at
357, 219 S.W.3d at 171. An additional reason for the requirements under Rule 33.1 is that
this court may not decide an issue raised for the first time on appeal. Id.
In the case before us, Elkins’s counsel moved for a directed verdict at the close of the
State’s case, saying:
Your Honor, we’d move for a directed verdict at this point in time based
upon the State’s lack of any credible evidence to sustain their burden of proof.
Namely, we would note the inconsistencies or the flaws in the investigation
and the lack of credibility of any fact witnesses in this matter, and we would
ask that the court direct a verdict in favor of Mr. Elkins.
It is clear to this court that Elkins’s directed-verdict motion failed to state with
specificity what the flaws were or why certain witnesses lacked credibility. Now, on appeal,
Elkins attempts to argue these specifics. This court, however, has held that Rule 33.1 must
be strictly construed. Pinell, 364 Ark. at 358, 219 S.W.3d at 172. Because Elkins’s directedverdict motion was nonspecific, it is not preserved for this court’s review.
The fact that this case involves a sentence of life imprisonment without parole and is
subject to review under Arkansas Supreme Court Rule 4-3(h) does not change our
conclusion that this court is precluded from considering Elkins’s sufficiency-of-the-evidence
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challenge. See Bienemy v. State, __ Ark. __, __ S.W.3d __ (Sept. 18, 2008); Maxwell v. State,
__ Ark. __, __ S.W.3d __ (May 29, 2008). We said in Maxwell:
[T]his court has held in the past that failure to make the motions for directed
verdict with specificity regarding the sufficiency issue on appeal equates to the
motion never having been made. See Tillman v. State, 364 Ark. 143, 147, 217
S.W.3d 773, 775 (2005); Webb v. State, 327 Ark. 51, 60, 938 S.W.2d 806, 81112 (1997). We hold that this is so even in situations where the motion is
specific at the close of all the evidence but not at the close of the State’s case.
The motion for directed verdict on the issue at hand is simply not preserved.
Rule 4-3(h), as a result, does not mandate review . . . when the directedverdict motion has not been properly made. See Tillman, 364 Ark. at 147, 217
S.W.3d at 775.
___ Ark. at ___, ___ S.W.3d at ___.
We now reiterate that Rule 4-3(h) does not require this court to review Elkins’s claim
that the trial judge erred by denying his motion for a directed verdict.
Rule 4-3(h) Review
The record in this case has been reviewed for reversible error pursuant to
Supreme Court Rule 4-3(h), and none has been found.
Affirmed.
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