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Burks v. State6/16/2004
NOT DESIGNATED FOR PUBLICATION
After a jury trial, Stacey Burks was convicted of driving while intoxicated, second offense, and was sentenced to one year in jail, with all but ninety days suspended, and fined $1,200. On appeal, she contends that the finding of guilt is not supported by substantial evidence. Specifically, she argues that the State failed to prove that she was in actual physical control of the vehicle or that the vehicle was operable. Because appellant failed to preserve these issues for appeal, we affirm without addressing the merits of the arguments.
In order for a defendant in a criminal jury trial to preserve for appeal any issue pertaining to the sufficiency of the evidence, she must move for a directed verdict at the close of the State's case and again at the close of all of the evidence. Ark. R. Crim. P. 33.1. The motion must specify the respect in which the evidence is deficient. Ark. R. Crim. P. 33.1(c). A general motion, such as one that merely provides that the State has failed to prove all of the elements of the offense, will not suffice. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003). The failure to challenge the sufficiency at the times and in the manner specified in the rule will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict. Ark. R. Crim. P. 33.1(c).
Here, at the close of the State's case-in-chief, appellant made only a general motion for a directed verdict, arguing that the State had "fail to show a prima facie case of Driving While Intoxicated." The motion was clearly insufficient to preserve the specific arguments made on appeal. See Newman v. State, supra. In any event, appellant failed to make a timely challenge to the sufficiency after the close of all of the evidence. After the State rested its case and appellant's motion was denied, appellant presented evidence in her own behalf. However, she made no subsequent attempt to renew her motion or otherwise challenge the sufficiency of the evidence until after the jury was instructed, had deliberated, and had returned a verdict of guilty. The attempted renewal of a motion for a directed verdict is untimely and ineffective when made after the jury has been charged. Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003).
Affirmed.
Neal and Baker, JJ., agree.
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