ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

DEMETRIE CULBREATH

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-1011

JUNE 19, 2002

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR00-1415]

HONORABLE MARION HUMPHREY, CIRCUIT JUDGE

AFFIRMED

Demetrie Culbreath was convicted in a bench trial of a Class "Y" felony terroristic act and was sentenced to twenty years in the Arkansas Department of Correction. On appeal, Culbreath challenges the sufficiency of the evidence supporting his conviction. Because Culbreath's argument is not preserved for appellate review, we affirm.

According to the testimony presented at trial, Marcus Dennis, Sandy Wright, and Tommy Payne, who were all friends, went to a party at Twentieth and Pine Streets in Little Rock on March 5, 2000. At the party, Payne was involved in an altercation with another male. After the fight ended, Dennis and Wright testified that they overheard comments from someone who stated that he was going to get a gun. At this point, the fifty or sixty people at the party started to leave, and vehicles were rushing away from the scene. Dennis, Wright, and Payne immediately ran to their car. Payne entered the back passenger seat, and Wright started to back up before Payne shut his door and before Dennis made it inside the car. Dennis testified that as they were running to their car, he heard a burst of gunfire consistent with a semi-automatic weapon and then a series of slower shots thatwere consistent with a revolver. Wright heard bullets strike the dumpster next to the car, and one bullet pierced the back windshield. Neither Wright nor Dennis saw who was shooting at them. Payne was shot in the back and died shortly after arriving at the hospital.

The gun used to fire the bullet that killed Payne was not found, but the laboratory analysis of the bullet indicated that it was a .38 caliber classification, which the firearm and tool mark examiner stated was most consistent with a bullet loaded into a .38 Special caliber or .357 Magnum caliber cartridge. However, the examiner also noted that .38 caliber bullets could be loaded into other common cartridges, such as .380 Auto, 9mm Luger, and .38 Super caliber cartridges.

Detective Steve Moore testified regarding his investigation of the shooting. Culbreath made two statements to Moore. In his first statement, Culbreath denied having a gun at the party. However, in his second statement, Culbreath admitted that he been shooting a gun at the party and that he had lied in his first statement because he did not want to be blamed for Payne's death. Culbreath stated that he was drunk at the party and that he got his .357 revolver out and "just started shooting" across the street from the front of the building, emptying all six bullets in his gun. Culbreath stated that he did not shoot at a car and that he was only shooting his gun up in the air; however, Moore testified that Culbreath demonstrated to him that he had been holding the gun parallel to the ground. Culbreath also stated that he heard gunfire even before he started shooting his gun, but did not see who was shooting. Culbreath testified that he gave his gun to his friend after the party and that he did not have it anymore.

Culbreath's brother, Charles Williams, testified that he had been at the party with Culbreath. Williams testified that after the fight, he witnessed a man wave a pistol in the air and try to shoot it, although it did not go off. After everyone started running out of the party, Williams testified that he saw the same man chasing three other men down the alley toward the back of the building,shooting his pistol. Williams stated that Culbreath was shooting his gun in the air at the front of the building and that there were four or five other people also shooting at the time. Williams testified that he never saw Culbreath shoot at any individual or vehicle.

On appeal, Culbreath argues that the trial court erred in denying his motion for directed verdict because the State failed to introduce sufficient evidence that he committed a Class "Y" felony terroristic act. He also contends that the trial court erred in denying the motion because the State failed to prove that he had the purpose to commit a Class "Y" terroristic act. Both of Culbreath's arguments challenge the sufficiency of the evidence to support his conviction. A motion for a directed verdict, or in a non-jury trial, a motion for dismissal, is a challenge to the sufficiency of the evidence. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The State contends that Culbreath's arguments are not preserved for appellate review. In order to preserve for appeal a challenge to the sufficiency of the evidence, Ark. R. Crim. P. 33.1(b) states that a motion for dismissal shall be made at the close of all the evidence, and if the motion is made at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all the evidence. The failure of the defendant to move for dismissal in the manner required under this rule constitutes a waiver of any argument pertaining to the sufficiency of the evidence supporting the conviction. Ark. R. Crim. P. 33.1(c).

In this case, Culbreath made a motion for dismissal at the close of the State's case, but he failed to renew his motion at the close of all the evidence. Culbreath did not reiterate the grounds for his motion to dismiss until after his closing argument. Even if a defendant attempts to make his motion as a part of and during his closing argument, the motion for dismissal is untimely once the State has given its closing argument. J.R. v. State, 73 Ark. App. 194, 40 S.W.3d 344 (2001). Because Culbreath failed to renew his motion for dismissal, his arguments pertaining to thesufficiency of the evidence supporting his conviction are not preserved for review, and we must affirm his conviction without addressing the merits of his argument.

Affirmed.

Hart and Vaught, JJ., agree.