Foster v. State

2016 Ark. App. 457

• Court: Court of Appeals of Arkansas
• Decided: October 5, 2016
• Docket: CR-16-239
• Status: Published

Opinion

Cite as 2016 Ark. App. 457

ARKANSAS COURT OF APPEALS DIVISION II No. CR-16-239

Opinion Delivered: October 5, 2016 GURAL FOSTER

APPELLANT APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT V. [NO. 43CR-2015-86]

STATE OF ARKANSAS HONORABLE BARBARA ELMORE, APPELLEE JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Appellant Gural Foster was convicted in the Lonoke District Court of driving while

intoxicated (DWI), refusal to submit, driving with expired tags, and careless driving. He

appealed to the Lonoke County Circuit Court and was convicted of all offenses, except

careless driving. On appeal to this court, Foster argues that the evidence was insufficient to

prove that he committed the offenses of DWI and refusal to submit. We affirm.

I. Background

On July 5, 2014, at approximately 11:10 a.m., Sergeant Brad Lann of the Arkansas

State Police responded to a report of careless driving. When Lann encountered the van

involved in the report, it was parked on the side of the road. Foster was behind the wheel

trying to start the vehicle. Lann smelled a strong odor of intoxicants coming from inside the

van. Foster admitted drinking a beer for breakfast that morning. Lann noticed that Foster’s

speech was thick and raspy and that his eyes were watery and bloodshot. Lann administered Cite as 2016 Ark. App. 457

the horizontal-gaze-nystagmus (HGN) test, and Foster exhibited six out of six clues that

tend to show intoxication.

At the county jail, Foster agreed to take a breathalyzer and signed the consent form.

Lann attempted to get a reading twelve times, but only two samples were obtained. Those

samples, however, could not be used because they were not obtained consecutively, which

Lann testified was required by the new machine.

Foster testified that he could not perform the HGN because he was facing the sun.

Also, he claimed to have a disabling physical condition. Foster stated that he had blown as

hard as he could into the breathalyzer for as long as he could but that he “did not have the

voice” to give a sample.

II. Discussion

Foster made no motion to dismiss during his bench trial. Arkansas Rule of Criminal

Procedure 33.1(b) provides that, in a nonjury trial, if a motion for dismissal is to be made,

it shall be made at the close of all the evidence. The failure of a defendant to challenge the

sufficiency of the evidence at the times and in the manner required in subsection (b) will

constitute a waiver of any question pertaining to the sufficiency of the evidence to support

the verdict. Ark. R. Crim. P. 33.1(c). The rule is strictly interpreted. Christian v. State, 318

Ark. 813, 889 S.W.2d 717 (1994).

In a footnote on the first page of his argument, Foster admits that no motion to

dismiss was made; nevertheless, he asserts that “this rule is procedural and not jurisdictional.

Therefore, the court could choose to reach the issue of sufficiency in this case.”

2 Cite as 2016 Ark. App. 457

Foster’s footnote is unclear. He cites no authority and makes no convincing argument

for why this court could choose to reach the sufficiency here. Lacy v. State, 355 Ark. 625,

144 S.W.3d 267 (2004) (refusing to consider issue where no convincing argument or

citation to authority is provided). A defendant’s claim that the evidence was insufficient to

support his convictions in a bench-trial proceeding is not preserved for appellate review

where he failed to make a motion for dismissal at the close of the evidence. McClina v. State,

354 Ark. 384, 123 S.W.3d 883 (2003). Because Foster has failed to preserve his arguments

for appeal, we decline to address the merits.

Affirmed.

GLADWIN, C.J., and GLOVER, J., agree.

Robert M. “Robby” Golden, for appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.