ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

DONOVAN ARRAS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CA01-250

JANUARY 23, 2002

APPEAL FROM SALINE COUNTY CHANCERY COURT, JUVENILE DIVISION

[NO. J97-066]

HONORABLE GARY M. ARNOLD, CIRCUIT/CHANCERY JUDGE

AFFIRMED

Donovan Arras was adjudicated a juvenile delinquent for committing the offense of sexual abuse in the first degree, and judgment was entered, committing Arras to the custody of the Division of Youth Services. Pursuant to Anders v. California, 368 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Arras's counsel has filed a motion to withdraw as his attorney, alleging that this appeal is without merit. Counsel has also filed a brief in which all adverse rulings are abstracted and discussed. The clerk of this court furnished Arras with a copy of counsel's brief and notified him of his right to file pro se points for reversal within thirty days. Arras has not filed any pro se points. We grant counsel's motion to withdraw and affirm the chancery court's decision.

In its petition, the State charged Arras with committing three counts of indecent exposure to a person under the age of twelve years and three counts of sexual abuse in the first degree. At trial, B.S., Arras's seven-year-old cousin, testified that Arras touched her on her private parts withhis finger and tongue. The two other counts of sexual abuse in the first degree and the three counts of indecent exposure were found to be not true based upon the evidence at the trial. The chancery court found the allegation of sexual abuse in the first degree as to B.S. to be true, and Arras was adjudicated delinquent on this basis.

On appeal, Arras's counsel asserts that trial counsel for Arras failed to move for a directed verdict or to dismiss, and that there were no significant adverse rulings, therefore, an appeal is without merit. Regarding the sufficiency of the evidence, the record reveals that Arras's trial counsel did not make a motion for dismissal either at the close of the State's case or at the close of all the evidence. Arkansas Rule of Criminal Procedure 33.1 (2001) requires that a motion for dismissal be made at the close of all of the evidence in order to preserve the issue of sufficiency of the evidence for appellate review. The rules of criminal procedure, including Rule 33.1, apply to juvenile delinquency proceedings. J.R. v. State, 73 Ark. App. 194, 40 S.W.3d 342 (2001); Trammell v. State, 70 Ark. App. 210, 16 S.W.3d 564 (2000). As such, Arras has waived his right to appeal the sufficiency of the evidence.

The only other rulings adverse to Arras concerned objections to the relevancy of two questions asked by the State on cross-examination of Arras. The State first asked Arras if he had masturbated, and Arras objected, stating that the question was not relevant. The State revised the question to ask Arras if he had masturbated in front of the children, and the trial court allowed the question. The State then asked Arras if there were any places that anyone could have seen him doing that, such as if a door was open, and Arras objected again, stating that he had already answered that he had not done anything to the children. The trial court allowed Arras to answer the question.

According to Rule 401 of the Arkansas Rules of Evidence, "relevant evidence" is evidence"having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." It is enough for evidence to be relevant if the item of evidence reasonably shows that the fact is slightly more probable than it would appear without the evidence. Dooley v. Cecil Edwards Constr. Co., Inc., 13 Ark. App. 170, 681 S.W.2d 399 (1984). The trial court has discretion in ruling on the relevance of evidence, and the appellate court will not reverse the trial court's ruling in the absence of an abuse of discretion. Id.

Arras was charged with three counts of indecent exposure, and the questions asked by the State as to whether he had masturbated in front of the children or in a place where he could have been seen by them were relevant as to these charges. The trial court did not abuse its discretion in allowing this evidence. Moreover, Arras cannot demonstrate prejudice from these adverse rulings as the charges of indecent exposure were found to be not true by the trial court. The appellate court will not reverse an evidentiary ruling by the trial court in the absence of a showing of prejudice to the appellant. Turner v. State, 59 Ark. App. 249, 956 S.W.2d 870 (1997). Thus, an appeal as to these points would be wholly frivolous.

From a review of the record and the brief presented to this court, we find compliance with Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and pursuant to the Anders procedural blueprint, there is no basis for a reversal. Accordingly, we grant counsel's request to withdraw as Arras's attorney and affirm the chancery court's decision.

Affirmed.

Griffen and Robbins, JJ., agree.