ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

PAMELA YVETTE AUSTIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-1344

September 17, 2003 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2001-3203]

HONORABLE DAVID BOGARD,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Pamela Yvette Austin, was found guilty in a bench trial of first-degree domestic battering for which she was sentenced to a term of nine and one-half years in prison. For reversal, she contends that there is insufficient evidence to support a finding that the victim suffered a serious physical injury as a result of the attack. We affirm.

Marcus Lee testified that appellant was his girlfriend and that on July 17, 2001, she stabbed him in the back with a pair of scissors during an argument. The assault left a wound fourteen centimeters deep and was two inches away from Mr. Lee's heart. Seventeen staples and ten stitches were required to repair the wound. During his testimony, Mr. Lee showed the court his scar and testified that there was no indication that the scar would heal and that he had been told that he would suffer minor pains throughout his life on account of the injury.

At the conclusion of the State's case, appellant's counsel moved for a directed verdict, arguing that the State had "failed to make a prima facie case that Ms. Austin intended to cause serious physical injury." The court denied the motion, which appellant renewed at the close of the case. The court denied that motion as well.

A person commits the offense of domestic battering in the first degree if, with the purpose of causing serious physical injury to a family or household member, she causes serious physical injury to a family or household member by means of a deadly weapon. Ark. Code Ann. § 5-26-303(a)(1) (Supp. 2001). A person acts "purposely" with respect to his conduct or a result thereof when it is her conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997). "Serious physical injury" means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102(19) (Repl. 1997).

Appellant argues on appeal that the evidence is insufficient to support a finding that Mr. Lee sustained a serious physical injury. We agree with the State that this argument has not been preserved for appellate review.

Rule 33.1(b) 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. 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.

A directed-verdict motion based on the insufficiency of the evidence must specify the respect in which the evidence is insufficient. Travis v. State, 328 Ark. 442, 944 S.W.2d (1997). The supreme court has explained that the proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for a directed verdict. Id. The reason underlying the specificity requirement is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996).

Appellant's directed-verdict motion in this case was made on the ground that the State had "failed to make a prima facie case that [she] intended to cause serious physical injury." This motion was sufficient to challenge the requisite proof of purposeful intent to cause serious physical injury, but it clearly does not constitute a challenge to the sufficiency of the evidence as to the separate element of serious physical injury. Thus,while appellant argued that the evidence did not show that she had the requisite purpose to cause serious physical injury, it cannot be said that appellant argued that the evidence did not show that the victim had sustained a serious physical injury. As we read appellant's stated argument, appellant in fact conceded that she caused serious physical injury, arguing only that she did not intend to do so. We reject appellant's contention that her challenge to the element of purposeful intent necessarily included a challenge to the evidence of serious physical injury. The two are entirely separate elements of the offense, and our rules require that motions for a directed verdict must specify with particularity each element that is being challenged. Appellant's argument is not preserved for appeal. Accordingly, we affirm without addressing the merits of the argument.

Affirmed.

Hart and Roaf, JJ., agree.