ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION III

RICHARD D. MYERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1334

DECEMBER 19, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR99-2270]

HONORABLE JOHN BERTRAN PLEGGE, CIRCUIT JUDGE

AFFIRMED

Appellant appeals a conviction of attempted false imprisonment in the first degree alleging insufficiency of the evidence and the trial court's erroneous admission of hearsay evidence. We hold that appellant failed to preserve his sufficiency of the evidence argument and that the statement complained of as hearsay was properly admitted as an excited utterance. Accordingly, we affirm.

At a bench trial on June 5, 2000, appellant Richard Dale Myers was tried for criminal attempt to commit false imprisonment in the first degree of Matthew Myers, appellant's seventeen-year-old son. After the State's case-in-chief, appellant moved for a directed verdict, arguing that the State failed to prove that appellant substantially interfered with Matthew's liberty or exposed Matthew to a substantial risk of serious physical injury. The circuit court denied his directed-verdict motion. Appellant failed to renew his motion at the close of all the evidence. The circuit court found appellant guilty of criminal attempt to commit false imprisonment in the first degree.

Arkansas Rule of Criminal Procedure 33.1(b) requires that in a nonjury trial, if the defendant

moved for a dismissal at the conclusion of the State's case-in-chief, then the motion must berenewed at the "close of all the evidence" in order to preserve for review any question pertaining to the sufficiency of the evidence to support the conviction. Because appellant failed to renew his motion for directed verdict after the close of all the evidence, his challenge to the sufficiency of the evidence is not preserved for appellate review, and we affirm on that point. See Trammell v. State, 70 Ark. App. 210, 214, 16 S.W.3d 564, 567 (2000).

For his second point on appeal, appellant argues that the trial court erred in admitting testimony by the North Little Rock Police Officer, Renee McCorkle-Brian, relating the victim's statement at the scene of the incident. "Decisions by a trial court with respect to evidentiary rulings are entirely within the court's discretion, and will not be reversed absent an abuse of that discretion." Fudge v. State, 341 Ark. 759, 768, 20 S.W.3d 315, 320 (2000), cert. denied, 531 U.S. 1020 (2000). The excited-utterance exception found at Arkansas Rule of Evidence 803(2) provides that a statement will not be excluded as hearsay if it "relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." "[I]t is within the trial court's discretion to determine whether a statement was made under the stress of the excitement or after the declarant has calmed down and had an opportunity to reflect." Fudge, 341 Ark. at 769, 20 S.W.3d at 320.

Testimony at trial revealed that prior to the incident, a Pulaski County Chancery Court had taken away appellant's visitation rights with his son. The victim, Matthew, was mentally delayed. On January 20, 1999, a group of church members, including the victim, had gathered at the Faith Baptist Church gym after a church service. Appellant entered the gym, grabbed the victim from behind by the neck and/or shoulders, and took Matthew outside the gym. The youth minister of the church approached appellant and informed him that he could not take Matthew, to which appellant responded by yelling and screaming that they could not stop him. Matthew managed to get awayfrom appellant by twisting and then running back inside the gym.

Once Matthew was back inside the gym, several people tried to lock all of the doors from the inside of the gym to prevent appellant from re-entering. Appellant was pulling on the front door of the gym while a group on the inside was trying to keep it closed. Another church member attempted to physically block appellant from re-entering the gym from the outside of the gym. North Little Rock Police Investigator and church member, John Defizates, was off duty when he observed the appellant attempting to re-enter the gym and the other church member attempting to block appellant. He identified himself as a police officer and ordered appellant to stop. When appellant ignored Officer Defizates' demands, Officer Defizates had to pry the appellant off of the door to subdue him. During the altercation, a screwdriver fell from appellant's back pocket.

During the course of these events, other church members called 911. Officer Renee McCorkle-Brian responded to the 911 call and made contact with Matthew within approximately ten minutes of Officer Defizates' subduing of appellant. She described Matthew's condition when she arrived as very upset, very distraught, and crying. He had red marks around his neck and on his shoulders. Because of his shaking and crying, he was difficult to understand. He kept saying that he was afraid. She stated that she had to calm him down and get him to slow down before he could really speak to her. He said that his father had grabbed him and tried to force him out the door, and he said that he was going to take him away and that he would never see his mother again.

The Arkansas Supreme Court has adopted the following factors to consider when determining whether a statement falls under the excited utterance exception: the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Killcrease v. State, 310 Ark. 392, 395, 836 S.W.2d 380, 381-82 (1992) (adopted from United States v. Iron Shell, 633 F.2d 77 (8^th Cir. 1980), cert.denied, 450 U.S. 1001 (1981)).

Under the facts presented in this case, the trial court did not abuse its discretion in finding that Matthew's statements were made while still under the stress of the event. Accordingly, we affirm.

Bird and Crabtree, JJ., agree.