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Banks v. State10/16/2003
here was physical injury. It was not serious physical injury.
The Court: Okay. So it's not an element that he's previously been convicted?
Mr. Sipe: Right. It's just that goes to sentencing only. It enhances the sentencing, the punishment range but does not affect the fact that it's a domestic battery, third.
The Court: Okay. Well, see, the information reads, "domestic battery in the third degree, second offense."
Mr. Sipe: Well, I'd just ask that maybe that be stricken, that you could strike that when you read that to the jury, or
-
The Court: Okay. There's no requirement that you prove it's a second offense to get third degree battery?
Mr. Sipe: We can get third degree battery, but then we'll provide a prior to you -
The Court: Okay. Well, I'm just asking, that's not an element of the crime?
Mr. Sipe: No.
Ms. Turner: No.
The Court: To show that you - okay. I'll take that part out. So I'm just going to tell the jury that he's charged with domestic battery in the third degree.
Mr. Sipe: Yes, Your Honor.
It is evident from this discussion that counsel for Appellant, Ms. Turner, agreed with the State's position that the prior offense of domestic battering was not an element of the charge that had to be proven during the guilt phase of Appellant's trial. Likewise, Appellant did not object when the circuit court struck the words "second offense" from the felony information and omitted those words when reading the information to the jury. In sum, Appellant agreed that the proper time to admit the evidence of his prior conviction was during the sentencing phase. Appellant's present argument amounts to nothing more than a challenge to the sufficiency of the State's evidence convicting him, but when Appellant made his directed-verdict motions, the only challenge raised was that the State failed to prove that Mrs. Banks suffered a physical injury.
This court has often held that in order to preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). More specifically, 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). Because Appellant failed to challenge the sufficiency of the State's evidence regarding the prior offense and, instead, agreed to keep such evidence out during the guilt phase, he cannot now raise that issue to this court. It is axiomatic that a defendant cannot agree with a trial court's ruling and then attack the ruling on appeal. See, e.g., Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996).
Even if the issue was properly before this court, Appellant would still not prevail on this point. This court has never specifically addressed the issue of whether a prior conviction for domestic battering is an element of the offense of domestic battering, second offense. This court, however, has addressed a similar issue in the context of multiple offenses for driving while intoxicated offenses. In Hagar v. City of Fort Smith, 317 Ark. 209, 212-13, 877 S.W.2d 908, 909 (1994), this court stated:
The prosecution must prove a prior conviction for DWI as an element of the offense of DWI, Second Offense. The p
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