Cite as 2016 Ark. App. 457 

## A RKANSAS COURT OF APPEALS
DIVISION II No. CR

- 16

- 239
GURAL FOSTER
APPELLANT
V.
STATE OF ARKANSAS
APPELLEE Opinion Delivered: October 5, 2016
APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [ NO. 43CR

- 2015

- 86 ]

HONORABLE BARBARA ELMORE , 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, exce pt 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 o f 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 intox icants 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 administeredCite as 2016 Ark. App. 457

2 the horizontal

- gaze

- nystagmus (HGN) test, an d 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 Crim inal Procedure 33.1(b) provides that , in a nonjury trial, if a motion for dismissal is to be made,
it shal l 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 rul e is procedural and not jurisdictional. Therefore, the court could choose to reach the issue of sufficiency in this case.”Cite as 2016 Ark. App. 457

3 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 conviction s 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.
G LADWIN , C.J., and G LOVER , J., agree. Robert M. “Robby” Golden , for appellant. Leslie Rutledge , Att’y Gen., by: Karen Virginia Wallace , Ass’t Att’y Gen., for appellee.