ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

PAUL DARROUGH and BOBBY

LEWIS

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-245

NOVEMBER 14, 2001

APPEAL FROM THE LINCOLN

COUNTY CIRCUIT COURT

[NO. LCR-99-55-2]

HONORABLE H. A. TAYLOR, JR.,

CIRCUIT JUDGE

AFFIRMED

Appellants Paul Darrough and Bobby Lewis were convicted by a jury of two counts of aggravated assault. They were sentenced to six years in prison for each count, with the sentences to run concurrently. Mr. Darrough and Mr. Lewis now appeal, arguing that there was insufficient evidence to support their convictions.

When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id.

Alan Keith Walker, one of the victims in this case, testified for the State. He stated that he and the other victim, Larry Harris, were at an apartment shooting dice with a group of people on the evening of March 20, 1999. Mr. Walker and Mr. Darrough began arguing loudly, and eventually the tenant of the apartment asked everyone to leave. According to Mr. Walker, he and Mr. Harris attempted to get into his truck but were blocked by a group of people, one of whom was Mr. Darrough.

Mr. Walker testified that Mr. Lewis walked into the apartment, came out with a .38 revolver, and handed it to Mr. Darrough. Mr. Darrough then fired a shot, at which point Mr. Walker fell to the ground for his safety. Mr. Walker heard two more shots, followed by three more quick shots. After hearing six shots fired, Mr. Walker assumed the gun was empty and attempted to charge Mr. Darrough, but was stopped by a group of people, and someone struck him in the head. Soon thereafter, Mr. Walker and Mr. Lewis were able to leave in the truck. Mr. Walker was not hit by the gunfire, but noticed glass on the ground after the shots were fired. He testified, "This man tried to kill me. He tried to actually kill me."

Mr. Harris testified that he and Mr. Darrough exchanged hostile words before Mr. Darrough fired the shots. He indicated that the shots were initially directed toward Mr. Walker, but that "then a bullet came by me." He stated that he ran between the truck and a car and ducked down, when a bullet "hit" over his head.

Officer George Strain investigated the incident on the night at issue. He came in contact with Mr. Walker and Mr. Harris shortly after the shots were fired, and observed thatMr. Walker was bleeding and bent over in pain. Officer Strain testified that the car that was parked at the scene had bullet holes in it and the rear driver's side window was busted out.

Mr. Lewis testified on his own behalf and acknowledged that an argument occurred between Mr. Walker and Mr. Darrough during the dice game. He noticed them fighting outside and attempted to break up the fight. Mr. Lewis denied bringing a gun out of the house and he stated that he never saw Mr. Darrough with a gun. He testified that he heard what sounded like gunfire, but did not see any gun.

Mr. Darrough testified that he also heard gunshots, but did not see who fired the gun. He denied possessing a gun and stated, "If I had shot at Walker at fifteen feet I wouldn't have missed him."

The appellants argue on appeal that there was insufficient evidence to convict either of them of aggravated assault under Ark. Code Ann. § 5-13-204(a) (Repl. 1997), which provides that "[a] person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person."

Mr. Darrough argues that the testimony of Mr. Walker and Mr. Harris did not establish that his conduct created a substantial risk of death or serious physical injury, nor did the testimony show that the alleged shooting manifested extreme indifference to the value of human life. He points out that neither of the alleged victims testified that Mr. Darrough threatened them or expressed a conscious desire to injure or scare them. Mr.Darrough also notes that when being questioned by the police, the alleged victims told the officers that there was no need to proceed with an investigation.

Mr. Lewis argues that, even if he handed Mr. Darrough a revolver as alleged by Mr. Walker, there was no evidence that he advised or encouraged Mr. Darrough to shoot at anyone. He further submits that there is nothing to indicate that he knew Mr. Darrough was going to shoot. Mr. Lewis contends that it is likely that he handed the gun to Mr. Darrough only so Mr. Darrough could protect himself in light of the altercation with Mr. Walker. Mr. Lewis further asserts that he could not be convicted as an accomplice even if the evidence supported such a finding because the State did not argue he was an accomplice and no jury instruction was given to that effect.

The State argues that appellant's challenges to the sufficiency of the evidence are not preserved for review, and we agree. Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that, in jury trials, any issue pertaining to the sufficiency of the evidence is waived for purposes of appeal unless preserved by timely and specific motions for directed verdict in the trial court. Conner v. State, 334 Ark. 457, 978 S.W.2d 300 (1998); Miles v. State, 59 Ark. App. 97, 954 S.W.2d 286 (1997). In the instant case, the appellant moved for a directed verdict at the close of the State's case and at the close of all the evidence, but each motion was general and failed to apprise the trial court of any specific grounds therefor. Thus, appellants' sufficiency arguments are procedurally barred and need not be addressed.

Affirmed.

Neal and Crabtree, JJ., agree.