ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

NO.CACR03-288

NOVEMBER 12, 2003

FREDDIE EZEKIEL APPEAL FROM PULASKI COUNTY

CIRCUIT COURT

APPELLANT [NOS. CR 99-176, CR99-3216, CR02-2313]

V.

STATE OF ARKANSAS HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

APPELLEE

AFFIRMED

Andree Layton Roaf, Judge

Freddie Ezekiel was convicted in a bench trial of possession of a controlled substance with intent to deliver, possession of a firearm by certain persons, and simultaneous possession of a firearm and controlled substance, and was sentenced to twelve years' imprisonment with the sentences to run concurrently. On appeal, Ezekiel challenges the trial court's denial of his motion for directed verdict. We do not reach the merits of Ezekiel's argument because it is not preserved for appellate review, and we affirm.

Because we are affirming without addressing the merits of Ezekiel's sole argument on appeal, our recitation of the facts will be limited to those related to Ezekiel's directed verdict motions. At the close of the State's evidence, Ezekiel's counsel made a directed verdict motion. As to count one, the simultaneous possession of a firearm during the commission of another crime charge, defense counsel challenged the enhancement provision of the statute only. Defense counsel explicitly stated, "Your Honor? I'm just talking about the enhancement itself." Defense counsel's motion was granted. For his second motion, defense counsel challenged the possession with intent to deliver charge, arguing that there was not substantial evidence that Ezekiel intended to deliver the controlled substance. That motion was denied. For the final charge, possession of a firearm, defense counsel stated, "With regard to count three for purposes of a directed verdict, I don't think I have anything at this point in time." Although it appears that defense counsel was not making a directed verdict motion as to count three, the court nonetheless denied the motion.

Ezekiel testified on his own behalf. At the conclusion of Ezekiel's testimony, defense counsel stated, "Your Honor, that's the only witness that the defense will have. That's all we have save argument." The judge responded, "All right, you may argue if you like." Defense counsel proceeded to argue against conviction on all three charges, without explicitly requesting dismissal of the charges. The State responded, and after its response the court called Ezekiel forward and found him guilty of all charges.

Arkansas Rule of Criminal Procedure 33.1 provides in part:

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.

The failure of a defendant to challenge the sufficiency of the evidence at the times 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. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of sufficiency of the evidence.

In Holmes v. State, 347 Ark. 689, 66 S.W.3d 640 (2002), the supreme court held that Arkansas Rule of Criminal Procedure 33.1 mandates that if a defendant moves for a directed verdict at the close of the State's case in chief then he must do so again at the close of all evidence. The court held that the appellee had not complied with subsections (b) and (c) of Rule 33.1 because the defendant did not make a directed verdict motion at the close of all evidence. Id. Rather, the court pointed out, defense counsel made his directed verdict motion during his closing argument. Id. Rule 33.1 is strictly construed, and in order to preserve his sufficiency challenge, the defendant must make his directed verdict motion "at the close of all evidence before his closing argument." Id. (emphasis added). See also J.R. v. State, 73 Ark. App. 194, 40 S.W.3d 342 (2001) (holding that the appellant's motion was untimely and his argument not preserved for appellate review where he made his motion as part of and during closing arguments, after the State gave its closing argument).

In a recent decision, the supreme court held that the defendant did not comply with Rule 33.1 when he made his directed verdict motion as part of his closing argument. McClina v. State, ____Ark. ____, ____ S.W.3d ____ (October 9, 2003). In McClina, defense counsel presented testimony and then rested his case. Id. After resting defense counsel requested to be "heard on closing." Id. Counsel then challenged the evidence, after which the judge called the defendant to the podium and found him guilty. Id. On appeal, McClina challenged the sufficiency of the evidence and the State countered, arguing that McClina's challenge was procedurally barred because he failed to make a directed verdict motion at the close of all evidence pursuant to Rule 33.1. McClina conceded that he failed to make a directed verdict motion, but requested that the court treat his closing argument as a motion for directed verdict. Id.

The supreme court declined to accept McClina's closing argument as a substitute for a motion for directed verdict. Citing Holmes, supra, the court stated that Rule 33.1 is strictly construed and requires defendants to make directed verdict motions at the close of all evidence. The court noted that at no time did McClina ask for a dismissal of the charges, and therefore, he did not preserve his argument for appellate review.

Ezekiel's arguments are not preserved for appellate review because he failed to make a directed verdict motion at the close of all evidence as required by Ark. R. Crim. P. 33.1 and by our supreme court in circumstances identical to those in Ezekiel's case.

Affirmed.

Pittman and Robbins, JJ., agree.