Jerry Michael Turley v. State of Arkansas

2020 Ark. App. 118

• Court: Court of Appeals of Arkansas
• Decided: February 19, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 118 Reason: I attest to the accuracy and integrity of this document Date: 2021-06-30 15:05:16 ARKANSAS COURT OF APPEALS Foxit PhantomPDF Version: DIVISION II 9.7.5 No. CR-19-535

OPINION DELIVERED: FEBRUARY 19, 2020 JERRY MICHAEL TURLEY APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-18-598] V. HONORABLE GARY ARNOLD, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

ROBERT J. GLADWIN, Judge

Jerry Turley was convicted in the Saline County Circuit Court of nonsupport for

which he was sentenced to 180 months of probation. On appeal, he argues that insufficient

evidence supports his conviction. We affirm because he failed to preserve his argument for

appellate review.

On March 15, 2019, Turley was tried on a charge of nonsupport totaling more than

$25,000. Sherri Mitchell testified that she has three children with Turley and that Turley

had been ordered to pay her $422 a month in support through the Office of Child Support

Enforcement pursuant to an order entered on August 18, 2011.

Terry Daily, an employee of the Office of Child Support Enforcement, testified that

Turley was ordered to pay $422 a month1 and that payment was to be sent to the child-

1 The amount was reduced to $359 a month for the two younger children once the oldest child had been emancipated. support-enforcement clearing house. Daily stated that the last payment received was on

December 23, 2014. Daily confirmed that Turley’s driver’s license has been suspended since

2014 because of his nonpayment of support. As of February 28, 2019, Turley owed $29,792.

After the State rested, Turley’s counsel moved for a directed verdict as follows:

“We’ll move for a directed verdict saying the State has not met their burden.” He also

requested a directed verdict based on an alleged just-cause defense2 that “Mr. Turley wasn’t

able to provide support because of the license suspension.” The State responded with a brief

summary of the testimony and evidence that had been presented, noted that there was no

evidence that would excuse Turley’s lack of payment, and asserted any defense related to

the driver’s-license suspension was a “fact issue for the jury.” The motion was denied.

Turley testified, explaining his difficulties in getting work because of his suspended

license. He did not dispute that he owed $29,792 and admitted that he is capable of working,

such as physical labor. His basic claim was that he was denied the opportunity to pay the

back child support because the State would not reinstate his driver’s license. Turley’s father,

Danny Rothstein, and his sister, Ladonna Hughes, testified on Turley’s behalf, corroborating

his testimony that he attempted to pay back a large part of the child support owed but was

denied the opportunity to do so.

After Turley testified, the defense rested, and counsel stated, “[W]e’re going to renew

our motion for our directed verdict based on the State has not met their burden of proof

and also Mr. Turley was denied the opportunity to pay child support.” The jury returned a

2 Regarding the alleged just-cause defense, Turley abandoned that issue on appeal. See, e.g., Hinton v. State, 2019 Ark. 136, at 3 n.1, 572 S.W.3d 381, 385 n.1 (holding that issues raised below but not argued on appeal are considered abandoned).

2 unanimous guilty verdict on the charge of nonsupport, and Turley was sentenced to 180

months of probation.

Arkansas Code Annotated section 5-26-401(a)(2) (Repl. 2013) provides that a person

commits the offense of nonsupport if he or she fails to provide support to a legitimate child

who is younger than eighteen years old. Nonsupport is a Class B felony if the person owes

more than $25,000 in past-due support pursuant to a court order or by operation of law.

Ark. Code Ann. § 5-26-401(b)(2)(C). The statute provides an affirmative defense to a

defendant who can establish just cause for the failure to provide support. See Ark. Code

Ann. § 5-26-401(g). Turley makes a one-sentence argument alleging that the State failed to

prove that he owes $25,000 or more on his child-support obligations.

In order to preserve a challenge to the sufficiency of the evidence in a jury trial, a

criminal defendant must make a motion for directed verdict at the close of the evidence

offered by the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(a)

(2019). A motion for directed verdict shall state the specific grounds therefor. Daniels v.

State, 2018 Ark. App. 334, 551 S.W.3d 428. Without a circuit court’s ruling on a specific

motion, there is nothing for this court to review. Id. A defendant must make a specific

motion for a directed verdict that advises the circuit court of the exact element of the crime

that the State has failed to prove. Jones v. State, 2019 Ark. App. 219. Rule 33.1 is strictly

construed, and a defendant’s failure to adhere to the requirements of Rule 33.1(a) will

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

the verdict. Hull v. State, 2019 Ark. App. 505. A general motion for directed verdict that

3 merely asserts the State has failed to prove its case is inadequate to preserve a sufficiency

challenge for appeal. Id.

At trial, after Turley and other witnesses testified in his defense, defense counsel

renewed the motion for directed verdict on the basis of a general allegation of lack of proof

and an alleged just-cause defense. The State responded that Turley’s own testimony was

consistent with the evidence presented by the State as to his support obligation and as to the

amount owed and again argued that any just-cause defense was a question of fact for the

jury. The motion again was denied.

For the first time on appeal, Turley specifically argues that “[t]he prosecution failed

to prove that Mr. Turley is $25,000 or more behind on his child-support obligations.” We

hold that this challenge to the sufficiency of the evidence is not preserved because the

directed-verdict motion made below did not specifically allege that the State’s proof was

insufficient as to the amount of unpaid child support. Thus, due to lack of compliance with

Ark. R. Crim. P. 33.1(a), Turley’s claim is not preserved for appeal. E.g., Peoples v. State,

2019 Ark. App. 559, at 5, 590 S.W.3d. 783, 786.

Affirmed.

ABRAMSON and BROWN, JJ., agree.

Jones Law Firm, by: Parker Jones and John A. Butler, for appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.