ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

JOHN MALLETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-1161

AUGUST 28, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2000-2064]

HONORABLE MARION ANDREW HUMPHREY, JUDGE

AFFIRMED

The Pulaski County Circuit Court convicted the appellant, John Mallett, of aggravated robbery and theft of property valuing $2,500 or more. On appeal, appellant challenges the sufficiency of the evidence to support his convictions. We affirm.

On the evening of May 30, 2000, Ms. Nellie Jones was driving home in her 1996 Lexus automobile after having attended her granddaughter's softball game. While driving on Mabelvale West Road, near Southwest Hospital, appellant drove his car past Jones, stopped, and blocked Jones's vehicle from proceeding further. Phillip Nichols jumped out of appellant's car and forced Jones at gunpoint out of her vehicle. Nichols then stole Jones's car and purse.

Appellant contends that sufficient evidence does not support his convictions. After the State's case-in-chief, appellant moved to dismiss, arguing that his mere presence at the

scene, without a legal duty to act, was not sufficient to make him an accomplice to the crimes committed against Jones, the seventy-year old victim. However, the trial court denied his motion. Defense counsel then presented the testimony of appellant's cousin, Ryan Cockrell. Thereafter, defense counsel rested, and the State made its closing argument. Next, defense counsel made his closing argument and then realized that he forgot to renew his motion for dismissal. Nevertheless, the trial court allowed defense counsel to renew his motion for dismissal at that time.

Arkansas Rule of Criminal Procedure 33.1 (2000) provides in part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.

In J.R. v. State, 73 Ark. App. 194, 40 S.W.3d 342 (2001), we held that a motion for dismissal made as a part of and during a closing argument was untimely. In that case, the motion was made after the State gave its closing argument. In the case at bar, defense counsel renewed his motion for dismissal after both parties made closing arguments. We hold that appellant's failure to renew his motion for dismissal at the close of all the evidence precludes our review of a sufficiency argument on appeal. See generally Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997).

However, even if we were to reach the merits of appellant's argument, we would affirm. Appellant drove his car past Jones, backed into a street, and blocked her from proceeding further. This enabled Nichols to force Jones out of her car and steal her car and purse containing a large amount of jewelry. The evidence shows that appellant and his accomplice acted in concert to rob Jones and that appellant physically blocked the victim's pathway with his car. His actions facilitated the commission of the robbery and theft, and appellant's culpability is not diminished by the fact that his accomplice was the one who got out of the car and approached the victim. Moreover, once the aggravated robbery was in motion, appellant fled the scene, which was further evidence of his guilt. See Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Sufficient evidence supports appellant's convictions.

Affirmed.

Stroud, C.J., and Bird, J., agree.