T.P. v. State of Arkansas

2021 Ark. App. 37

• Court: Court of Appeals of Arkansas
• Decided: January 27, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 37 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.19 11:09:34 DIVISION II -05'00' No. CR-20-127 Adobe Acrobat version: 2022.002.20191 Opinion Delivered: January 27, 2021

T.P. APPELLANT APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT V. [NO. 71JV-19-24]

STATE OF ARKANSAS HONORABLE TROY BRASWELL, APPELLEE JUDGE AFFIRMED

MIKE MURPHY, Judge

Appellant T.P. was adjudicated delinquent by the Van Buren County Circuit Court

upon finding that he committed the offense of criminal mischief in the second degree. The

court placed him on probation for six months. At the same hearing, T.P.’s cousin, J.P., was

also adjudicated delinquent. 1 On appeal, T.P. challenges the sufficiency of the evidence. We

affirm.

On May 28, 2019, while on her docked houseboat, Amanda Ferguson spotted two

boys suspiciously approach her vehicle in the marina parking lot. She identified the boys as

T.P. and his cousin J.P. at the hearing. Ferguson testified that she had never seen the boys

before and that she had no reason to believe they had a reason to be at her car pulling on

the door handle. She testified her doors were locked so they were not able to open the car

1 J.P. is not a party to this appeal. door. She explained her brother and son took off running from the dock to track down the

boys, who were on a motorcycle. Ferguson testified they apprehended the boys and called

law enforcement. J.P. testified next. He stated that neither he nor his cousin tried to get

into Ferguson’s car.

At the conclusion of the hearing, the court found that J.P. did in fact tamper with

the door handle, meeting the requirements of criminal mischief. It further found that T.P.

was an accomplice. J.P. separately appealed this ruling, which our court affirmed in JP v.

State, 2020 Ark. App. 493, reh’g denied (Dec. 9, 2020). There, we held that J.P.’s argument

was not properly preserved under Arkansas Rule of Criminal Procedure 33.1. T.P. now

timely appeals.

T.P. challenges the sufficiency of the evidence against him, arguing that the evidence

presented at trial did not meet the definition of “tampering” as required by the relevant

statute. For the reasons explained in JP, 2020 Ark. App. 493, we must also find that T.P.’s

argument is not preserved for review because he did not move for dismissal at the close of

all the evidence as required by Arkansas Rule of Criminal Procedure 33.1(b). As we

explained in JP,

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—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.

JP, 2020 Ark. App. 493, at 3–4.

2 T.P. and J.P. were tried as accomplices and represented by the same attorney. T.P.

did not make a separate motion to dismiss after the last piece of evidence had been received.

Therefore, we affirm his delinquency adjudication.

Affirmed.

GLADWIN AND BROWN, JJ., agree.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.