DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CACR03-022

JUNE 11, 2003

CORY McCLINA AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR2002-267]

v.

STATE OF ARKANSAS HONORABLE JOHN PLEGGE, JUDGE

APPELLEE

AFFIRMED

The trial court found appellant, Cory McClina, guilty of robbery and theft and sentenced him to ten years in the Arkansas Department of Correction. On appeal, appellant challenges the sufficiency of the evidence. We affirm.

The facts are as follows. Victim Steven Holfeltz testified that he met appellant on a city bus and recognized him. Holfeltz asked appellant if they were classmates at Henderson Junior High School, and appellant told Holfeltz, "Yeah." Appellant subsequently asked Holfeltz for his phone number and then asked if he could use Holfeltz's cell phone. Thereafter, Holfeltz testified that appellant would call and ask him for rides and that he would pick appellant up occasionally and take appellant where he needed to go.

On October 30, 2001, appellant called Holfeltz and requested a ride. Holfeltz picked appellant up, and appellant asked to use Holfeltz's cell phone. Holfeltz testified that appellant:

kept making me make a lot of different turns. He was on my cell phone.... And then he made a call and he started talking to somebody and he said, `Stop right here.' And he said, `Just stay right here for a minute.' And he went out and there was a white car, it seemed like a Cadillac, big, long car, you know. He walked over there, started talking to that dude. Both of them at that time approached my side of the car, told me to open my door. I opened my door and they started - he started saying, `Let me see your ID.' I said, `What do you want to see my ID for?' He said, `You're a cop, aren't you? Let me see your ID. . . .'

He said, `Let me see your ID.' And at that point I pulled out my wallet, showed my ID, [and] said, `What are you talking about I'm a cop?' You know, he just kept persisting [for me] to show my ID. I was like, `Why do you want to see my ID? What's this, you know?' And I showed my ID and at that point he grabs my wallet with them looking at my ID and then starts taking off. And - He grabbed my cell phone right when I think I stood up[.]

* * *

And I got out of the car, you know, I was like, `Man, what are you taking my wallet for,' and stuff and he started coming towards me like, you know, looking all wild and stuff.

When I say he was coming toward me looking all wild, I mean he would just - [his eyes were] all big and going like that, you know (witness indicating) and then he pushed me back. Pushed me back and I could tell he was acting like he was fixing to fight me if I was going to try to get my wallet from him. And at this point he started heading towards the car and his friend did too. He was like, `Get the gun, man, get the gun.' [Cory] said, `Get the gun, man.' He told his other companion he was with at that time to get the gun. And so at that point I just got in my car and drove off.

* * *

Appellant concedes that "no trial-level challenge was mounted to the sufficiency of the evidence in this case. Nonetheless, the appellant raises a challenge to the sufficiency of the evidence on appeal as a matter of fundamental error, and urges this Court to adopt a limited fundamental - or plain error review in this jurisdiction." Appellant's sufficiency-of-the-evidence challenge is not preserved for our review, and we decline appellant's invitation to address thisargument under a limited fundamental or plain error review.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that "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." Ark. R. Crim. P. 33.1(b). If the defendant moves for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence. Id. Failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. Ark. R. Crim. P. 33.1(c); Morgan v. State, 73 Ark. App. 107, 42 S.W.3d 569 (2001).

In this nonjury trial, appellant made a directed-verdict motion at the close of the State's case, but failed to renew his motion at the close of all of the evidence. Therefore, his sufficiency challenge is not preserved for appellate review.

Furthermore, we find no merit in appellant's plain or fundamental error argument. Arkansas Supreme Court Rule 4-3(h) requires that, "[w]hen the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. Sec. 16-91-113(a)." Arkansas Code Annotated section 16-91-113(a) (1987) provides that, "[t]he Supreme Court need only review those matters briefed and argued by the appellant, except that, where either a sentence for life imprisonment or death has been imposed, the Supreme Court shall review all errors prejudicial to the rights of the appellant." Other exceptions to the rule are (1) cases where the trial judge made an error of which the appellant had no knowledge; (2) cases where the trial judge neglected his or her duty to intervene; and (3)cases involving evidentiary errors which affected the appellant's substantial rights. See Ark. R. App. P. -- Crim. 10.

While it is true that Rule 4-3(h) requires the supreme court to review the record for error in life and death cases, this review presupposes that an objection was made at trial. See Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). In Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996), the appellant had been convicted of capital murder and sentenced to life imprisonment without parole. The supreme court nonetheless held:

It is well-established that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the directed-verdict motion is made. Neither appellant's original directed-verdict motion nor his renewal motion indicates that any specific deficiency in the evidence was called to the trial court's attention. Because there was a failure to raise the specific basis for a directed verdict at trial, appellant cannot now challenge the sufficiency of the evidence on appeal.

Id. at 658-59, 916 S.W.2d at 738 (citations omitted). Appellant does not attempt to fit his situation into one of the four exceptions. Moreover, we cannot overrule supreme court decisions. We lack the authority to do so. See Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999).

Even if we had reached the merits of appellant's argument, we would have been compelled to affirm. A person commits robbery if:

with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002) (emphasis added). Holfeltz testifiedthat appellant "pushed" him back and was trying to fight him, after which he yelled to his accomplice to "get the gun." Appellant was committing a theft, and he employed physical force upon Holfeltz by pushing him and threatened to employ physical force with a gun.

Affirmed.

Gladwin and Robbins, JJ., agree.