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Moreno v. State9/28/2005
nsufficient evidence at the close of all the evidence, as required by Ark.R.Crim.P. 33.1. In order to preserve the question of sufficiency of the evidence, Raymond was required to move to dismiss prior to closing arguments. Because he failed to do so, this court is precluded from reviewing his sufficiency claim.
(Emphasis added.)
Here, appellant never moved for a directed verdict. Rather, her attorney gave what amounted to a closing argument, concluding with the following:
Due to all the weight of the evidence in this matter, Your Honor, and because the State does have the burden of proof of showing beyond a reasonable doubt on this matter, we feel the State, in fact, has not met its burden of proof, and, therefore, the charge of DWI in the fourth offense should be dismissed.
(Emphasis added.) Additionally, even though she argued earlier in her "closing" that she did not refuse to submit to the breathalyzer test, she only sought "dismissal" of the DWI fourth offense charge, not the refusal-to-submit charge. Finally, she did not specify the argument that she now raises on appeal, i.e., that there was never a definitive blood-alcohol level established. Appellant did not properly preserve her challenge to the sufficiency of the evidence, and, therefore, we do not address the issue.
For her remaining point of appeal, appellant contends that the trial court erred in admitting testimony regarding "the breathalyzer incident" because Arkansas Code Annotated section 5-65-204(e) (Repl. 1997) prohibits introduction of evidence of chemical testing unless the suspect is offered a second, independent test. This issue was not properly preserved because appellant raised no objection concerning the introduction of this testimony. Therefore, we do not address it.
Affirmed.
Pittman, C.J., and Gladwin, J., agree.
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