Jp v. State of Arkansas

2020 Ark. App. 493

• Court: Court of Appeals of Arkansas
• Decided: October 28, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 493 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-15 14:13:29 DIVISION II Foxit PhantomPDF Version: No. CR-20-126 9.7.5

Opinion Delivered October 28, 2020 JP APPELLANT APPEAL FROM THE VAN BUREN V. COUNTY CIRCUIT COURT [NO. 71JV-19-25] STATE OF ARKANSAS APPELLEE HONORABLE TROY BRASWELL, JUDGE

AFFIRMED

BRANDON J. HARRISON, Judge

The State alleged that JP, a teenager, caused substantial inconvenience to the owners

of a vehicle by trying to open the door of a locked SUV parked near a boat dock. The

substantial inconvenience came when the vehicle owners left a docked boat to detain JP

and his cousin for thirty minutes until law enforcement officers arrived after one or more of

the boys tried to enter the locked SUV by pulling on one of the door handles. The case

was tried to the Van Buren County Circuit Court, which adjudicated JP delinquent.

JP challenges the sufficiency of the State’s evidence against him. He argues that

unsuccessfully trying to open a locked vehicle door was not “tampering with property” and

did not cause a substantial inconvenience to the owner. He also contends that the court’s

factual findings are not supported by proof beyond a reasonable doubt given the primary

witness’s self-contradictory testimony about whether it was JP or his cousin who pulled on

the door handles. We do not decide the merits of JP’s arguments in this appeal because they are

procedurally barred. The bar is that JP did not move for dismissal at the close of all the

evidence as required by Arkansas Rule of Criminal Procedure 33.1(b); his challenge to the

sufficiency of the evidence is therefore not preserved for review.

JP asserts that his challenge to the sufficiency of the evidence is properly preserved

for appellate review and that Rule 33.1’s requirements substantially infringe on his federal

constitutional rights to due process, freedom from self-incrimination, right to counsel, and

the presumption of innocence. In JP’s view, a “simple review of the record dooms the

State’s [preservation] argument” because he moved to dismiss at the close of the

prosecution’s case. He argues,

To put the proverbial icing on the cake, defense counsel even came back after the close of the evidence and, in response to the prosecutor’s attempt to explain why the evidence was sufficient to sustain the charge, exhorted: “Your Honor, I would just add that again I would say that the purpose of this law, including substantial inconvenience, is not for this. I would just say that, and nothing about it was inconvenience. There was nothing done to the vehicle. There was nothing harmed. There was nothing missing.”

JP moved to dismiss at the close of the State’s case. But did he renew that motion

to dismiss at the close of all the evidence? The parties dispute whether the following

colloquy occurring during the adjudication trial was a renewal of JP’s motion to dismiss,

which happened after he finished testifying in his own defense.

THE COURT: Any other witnesses?

DEFENSE ATTORNEY: No, Your Honor.

THE COURT: Okay. All right, so I assume no rebuttal Mr. Brown?

2 PROSECUTING ATTORNEY: That’s correct, Your Honor, no rebuttal.

The court asked the parties questions about the criminal-mischief statute that JP and his

cousin allegedly violated.1 The court specifically asked the attorneys, “What was the

tampering?” The prosecuting attorney responded that the “tampering would be the pulling

on the door handles of the vehicle.” The prosecutor argued further that the State was

proceeding under an accomplice-liability theory so “it doesn’t really matter so much which

party did it [JP or his cousin] or that we can’t actually establish which party did it.” In the

State’s view, both juveniles were responsible because one pulled on the door handle and the

other drove a motorcycle that transported the so-called door puller.

When asked whether he had anything to add, JP’s attorney said that there was no

inconvenience to the owner, that nothing was harmed, that no repairs were needed, and

that nothing was missing. The court disagreed, stating that the owners “had to miss the rest

of their lake day” and had to wait and talk to law enforcement. JP’s attorney argued that JP

“was simply playing a prank[.]” The court said, “Okay. All right, I’ll be in recess for about

five minutes, review my notes and the law and I’ll be right back with you.” The circuit

judge returned to the courtroom and adjudicated the two juveniles delinquent.

We agree with the State that JP failed to renew his motion to dismiss. Our supreme

court has interpreted Rule 33.1’s timing element “close of the whole case” to mean “after

the last piece of evidence has been received.” King v. State, 338 Ark. 591, 595, 999 S.W.2d

183, 185 (1999). After JP testified, it was clear that there would be no rebuttal testimony—

1 If the State had charged JP as an adult, JP’s behavior would constitute criminal mischief in the second degree, which is a Class B misdemeanor. Ark. Code Ann. § 5-38- 204(a)(2) (Repl. 2013).

3 meaning that the last piece of evidence had been received. JP then failed to renew his

motion to dismiss after the last piece of evidence had been received. The State immediately

began its closing argument in response to the court’s questions about the statute.

A similar situation happened in Jones v. State, 347 Ark. 409, 415, 64 S.W.3d 728, 732

(2002), where the supreme court did not reach the merits of the juvenile’s appeal. The

supreme court held that a juvenile’s failure to renew his motion for directed verdict after

the close of all the evidence in a delinquency proceeding forecloses any appellate review of

the sufficiency of the evidence. Id. at 416, 64 S.W.3d at 733. We are bound by Jones and

therefore decline to decide this appeal’s merit because JP failed to move to dismiss at the

close of all the evidence.

Regarding JP’s challenge to the constitutionality of Rule 33.1, this argument was

raised for the first time on appeal, so it is likewise procedurally barred. State v. McCormack,

343 Ark. 285, 291, 34 S.W.3d 735, 738–39 (2000).

JP’s challenge to the State’s proof was not properly preserved under Arkansas Rule

of Criminal Procedure 33.1. We therefore affirm his delinquency adjudication without

deciding the merit of his sufficiency arguments, which include some accomplice-liability

points.

Affirmed.

SWITZER and WHITEAKER, JJ., agree.

Ben Motal, for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.