ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MICHAEL HOLBROOK

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-1038

May 12, 2004

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[CR2002-424]

HON. JOHN S. PATTERSON, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Michael Holbrook was charged with one count of first-degree battery and one count of second-degree battery. A jury found appellant guilty of two counts of second-degree battery. He was sentenced to six years' imprisonment for each count, with the sentences to run concurrently. For his only point on appeal, he challenges the sufficiency of the evidence. We affirm.

On August 21, 2002, the State filed a felony information charging appellant with one count of first-degree battery and one count of second-degree battery as follows:

COUNT I: BATTERY - I ARK. CODE ANN. § 5-13-201. The said defendant in POPE COUNTY, did unlawfully and feloniously on or about 3/14/02.

Knowingly, willfully and unlawfully and intentionally, without legal justification causes serious physical injury to one he knows to be twelve (12) years of age or younger, the same constituting a Class B Felony, against the peace and dignity of the State of Arkansas.

COUNT II: BATTERY - II ARK. CODE ANN. § 5-13-202. The said defendant in POPE COUNTY, did unlawfully and feloniously on or about 3/7/02.

Knowingly, willfully and unlawfully and intentionally, without legal justification causes physical injury to one he knows to be an individual twelve years of age or younger, the same constituting a Class D Felony, against the peace and dignity of the State of Arkansas.

The charges involved alleged abuse of the minor son of appellant's then girlfriend, Felicity Hope. After a jury trial, appellant was found guilty of two counts of second-degree battery, and he was sentenced to six years in prison on each count. Although not contained in the addendum, a judgment and commitment order was filed on March 24, 2003, and a timely notice of appeal followed.

On appeal, appellant contends that the trial court erred in failing to grant the appellant's motion for directed verdict because the State failed to prove the element of serious physical injury. The State argues that appellant's argument is not preserved because he failed to make a motion for directed verdict in regard to second-degree battery.

Rule 33.1 of the Arkansas Rules of Criminal procedure requires that, in a jury trial, a directed-verdict motion be made at the close of the State's case and at the close of all the evidence, and the motion must specify the respect in which the evidence is deficient. A defendant's failure to challenge the sufficiency of the evidence at the times and in the manner required constitutes a waiver of any question pertaining to the sufficiency of the evidence on appeal. Ark. R. Crim. P. 33.1. Additionally, in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants must address the lesser-included offenses either by name or by apprising the trial court of the elements of the lesser-included offenses questioned by their motions for directed verdict. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

Appellant's motion with respect to the first-degree battery charge consisted of the following:

Your Honor, on the charge involving the requirement of serious physical injury be shown when intentionally inflicted, the Defendant moves for a directed verdict because the State has not shown what's described as a serious physical injury. Physical injury, yes, but not serious physical injury.

This motion neither mentions second-degree battery by name nor points to the challenged elements of the lesser offense. In fact, appellant's counsel conceded that there was evidence of "physical injury," which is what was required under the lesser-included instruction given to the jury. The renewed motion also failed to mention second-degree battery or the challenged elements. In addition, although appellant failed to move for a directed verdict on the second-degree battery charge at the close of the State's case, he apparently attempted to renew one, stating "as to the other charge, the Defendant moved for a directed verdict on the same basis recited in the motion made after the State's case."

In his opening brief, appellant anticipates the State's preservation argument by stating that "It is clear that appellant challenged, not only, first degree battery, but also second degree battery." We disagree. Appellant argues that proof of serious physical injury was required for either a conviction of first-degree battery or second-degree battery, citing Ark. Code Ann. § 5-13-202(a)(1) & (3). These subsections are not applicable, however, because the lesser-included instruction given to the jury was based on Ark. Code Ann. § 5-13-202(a)(4)(C) and required proof that appellant intentionally or knowingly, and without legal justification, caused physical injury (which he conceded) to a person he knew to be twelve years old or younger. Likewise, the instruction given with respect to the second-degree battery charged in the information required only proof of physical injury, not serious physical injury.

Because appellant failed to challenge the sufficiency of the evidence with respect to second-degree battery, we cannot reach the merits of his argument on appeal.

Affirmed.

Hart and Baker, JJ., agree.