ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JASON LEE

APPELLANT

STATE OF ARKANSAS

APPELLEE

CACR03-158

OCTOBER 29, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION

[NO. CR02-2108]

HONORABLE JOHN BERTRAN

PLEGGE, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Jason Lee was convicted of second-degree battery of his grandmother and third-degree domestic battery of his girlfriend, after a bench trial in Pulaski County Circuit Court. Appellant was sentenced to five years in prison. Appellant argues on appeal that there is insufficient evidence of second-degree battery. Because appellant’s argument advanced on appeal is not preserved for review, we affirm.

The facts as presented at trial were that on the afternoon of May 8, 2002, the Little Rock Police Department received a call from the residence of Mary Andrews, appellant’s grandmother. Upon arrival, officers observed that Ms. Andrews was visibly upset and shaking, and appellant was being held to the ground by other family members. Appellant, who was in his early twenties, appeared to be “in a rage,” according to police. An officer testified that Ms. Andrews, in her sixties, explained that she attempted to break up a fight going on in her driveway between appellant and his girlfriend, whereupon appellant attacked his grandmother by throwing plastic chairs at her. Appellant’s girlfriend, Ms. Lowery, fled to a nearby convenience store. Police were called to that location, and they observed that Ms. Lowery had bruising under both eyes, a bloody nose, and a laceration across her chest. Lowery was described by police as angry, nervous, and crying, explaining that appellant had hit her face with his fists and then kicked her in the head and face.

Ms. Andrews did not want to testify at trial against her grandson. Nevertheless, she was under oath and admitted that she called the police that day because appellant had created a dangerous situation for her and the children in her house. Ms. Andrews confirmed that she gave a statement to police in which she claimed that appellant was beating his girlfriend, that she tried to intervene, that he threw chairs at her, and that her thumb was “jammed” as a result. On the stand, Ms. Andrews disagreed with her earlier statement to police that one of the chairs “jammed” her thumb. Ms. Andrews said that she should have minded her own business and it was her fault for getting in the way.

Ms. Lowery was called to testify but made it clear that she did not want to. Lowery was very pregnant with her and appellant’s second child, and she testified that she was pregnant at the time of the fight. Lowery explained that she and appellant were fighting because she had told him that she did not want them to be together anymore. Lowery confirmed that the photographs taken of her that day were of her with scratch marks on her chest, shoulder, and back.

Appellant moved for directed verdict on second-degree battery as follows:

[W]e’d move for directed verdict because the witness’ testimony didn’t indicate that he intentionally tried to hurt her, his grandmother, Mary Andrews. And I know the State’s offered prior statements made by witnesses, but I don’t think those statements could be offered for anything but for impeachment purposes and not for the truth–to prove the truth of the matter that’s stated in them. And so I guess what I’m saying is based on what she’s testified to today that she didn’t say that he intentionally tried to injure her, but that she got in the way.

The trial court denied the motion. The defense rested and renewed the motion, which was denied again. Thereupon, the trial judge pronounced appellant guilty. Following the finding of guilt, appellant was asked if he had anything to say prior to pronouncement of sentence. Appellant responded that he believed that this charge should be dropped because he did not direct the chairs toward his grandmother and she said he did not cause her physical harm. The judge then sentenced appellant, and this appeal followed.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). We do not reweigh the evidence but determine instead whether the evidence supporting the verdict is substantial. Clem v. State, supra. Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion without having to resort to speculation or conjecture. Id.

Appellant was charged under, and convicted of violating, Ark. Code Ann. § 5-13-202(a)(4)(C), which provides that a person commits battery in the second degree if he intentionally or knowingly without legal justification causes physical injury to one he knows to be an individual sixty years of age or older. Appellant’s argument to the trial court was that there lacked sufficient evidence of intent to harm his grandmother.

On appeal, appellant abandons the intent argument and focuses solely on whether there was sufficient evidence of physical injury, arguing that appellant’s statement prior to sentencing preserves the issue for review. The State argues that appellant’s comment came after he was convicted and does not preserve the issue for appellate review. We agree with the State.

Arkansas Rule of Criminal Procedure 33.1(b) provides that in a bench trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence, stating the specific grounds therefor. If the motion is made at the close of the State’s case, it must be renewed at the close of all the evidence. Id. If a defendant in a bench trial fails to challenge the sufficiency of the evidence at the times and in the manner required in subsection (b), he waives any question pertaining to the sufficiency of the evidence to support the verdict or judgment. Id. at subsection (c). Rule 33.1 is strictly construed. Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001). Appellant clearly preserved review of the sufficiency of the evidence as to his intent.

However, the same is not true as to the sufficiency of the evidence pertaining to physical injury that was raised in appellant’s comments to the court at sentencing. Our supreme court has held that it is too late to renew a motion for directed verdict in a jury trial where the jury has already been charged. See Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003); Rankin v. State, 329 Ark. 379, 386, 948 S.W.2d 397, 401 (1997); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). Timing is also critical in bench trials. See State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002) (renewal of motion for directed verdict in the bench trial was not made at the close of all the evidence but was rather included during defense's closing argument; issue not preserved). In light of the strict construction of Rule 33.1, we are limited to consideration of arguments timely made to the trial court.

Parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). Where an appellant's motion for directed verdict at trial addressed only one aspect of the sufficiency of the evidence to support a conviction, and the basis is changed on appeal, we will not address it. See Absure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Appellant’s statement to the court prior to sentencing cannot be “boot-strapped” to his counsel’s timely motion for directed verdict. The mandates of Ark. R. Crim. P. 33.1 and case law prevent this court from addressing the sufficiency of the evidence as to proof of physical injury.

Affirmed.

Gladwin and Bird, JJ., agree.