Cite as 2017 Ark. App. 206

ARKANSAS COURT OF APPEALS

DIVISION I 

No. CR-16-880

PRESTON LEE GAMET 

 APPELLANT

V.

STATE OF ARKANSAS

 APPELLEE

Opinion Delivered April 5, 2017

APPEAL FROM THE SALINE 

COUNTY CIRCUIT COURT

[NO. 63CR-15-418] 

HONORABLE GARY ARNOLD, JUDGE

AFFIRMED 

DAVID M. GLOVER, Judge

Preston Lee Gamet was tried by a Saline County Circuit Court jury and found guilty 

of the offenses of DWI – first offense, an unclassified misdemeanor, and criminal mischief 

in the second degree, a Class D felony. He raises three points on appeal: 1) there was 

insufficient evidence for his two convictions; 2) the trial court erred in finding that he was 

not “in custody” for the purposes of Miranda v. Arizona, 384 U.S. 436 (1966), and in 

admitting his initial statements to law enforcement following the accident; and 3) the trial 

court committed reversible error by failing to give him a meaningful opportunity for 

allocution. We affirm.

On June 14, 2015, Gamet was driving his truck when it struck several houses on a 

street in Saline County. His blood-alcohol level was tested at .09 after the incident. At trial, 

he testified he had taken an Ambien and did not remember anything until he found himself 

in the backseat of a patrol car. 
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As his first point of appeal, Gamet contends that neither of his convictions are 

supported by substantial evidence because a) there was insufficient evidence he possessed 

the culpable mental state required for conviction under the DWI statute in effect at the time 

of the incident; b) there was insufficient evidence of actual damages for him to be convicted 

of criminal mischief in the second degree as a Class D felony; and c) there was insufficient 

evidence he committed a voluntary act by driving his car. We are unable to address the 

merits of these arguments because they were not properly preserved. 

After Gamet had renewed both of his motions for directed verdict, he asked for, and 

was given permission to “reopen very quickly and introduce [his] Exhibit No. 1, the medical 

records.” There was no objection, and the medical records from Gamet’s physician were 

admitted. According to the abstract, which is confirmed by the record, Gamet did not then 

renew his motions for directed verdict. That failure is fatal to his sufficiency challenges.

In Davis v. State, 2009 Ark. 478, at 5–6, 348 S.W.3d 553, 557, our supreme court 

explained: 

This court has had occasion to rule that a renewal of a motion for directed 

verdict made after the jury has been charged or instructed is not timely. This 

court has also had occasion to rule that a renewal of a motion for directed 

verdict made at the conclusion of the defendant’s case-in-chief followed by a 

failure to renew after the State presents rebuttal evidence operates as a waiver. 

However, we have not previously had before us a case such as the present one 

where a defendant failed to renew his motion after reopening his own case to 

admit additional documents into evidence. 

We conclude that the reasoning we applied in Christian is likewise applicable 

here. The plain language of Rule 33.1 requires that the motion be renewed 

at the close of all the evidence. The failure to do so operates as a waiver of 

any question relating to the sufficiency of the evidence to support the jury’s 

verdict. We interpret Rule 33.1 strictly. Appellant’s failure to renew his motion 

for directed verdict at the close of all the evidence, after he reopened his case to admit 
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four documents into evidence, therefore operates as a waiver of his challenge to the 

sufficiency of the evidence to support the jury’s verdict.

(Emphasis added.) (Citations omitted.) The Davis case dictates the outcome of this issue. 

We are unable to address the merits of Gamet’s arguments because he waived the issues 

when he failed to renew his directed-verdict motions after reopening the case to introduce 

the medical records. 

For his second point of appeal, Gamet contends the trial court erred in denying his 

motion to suppress, particularly in finding he was not “in custody” for the purposes of 

Miranda, supra, and allowing the State to admit the statements he made to a law-enforcement 

officer immediately following the incident. We disagree. 

In reviewing a trial court’s denial of a suppression motion, we conduct a de novo 

review based on the totality of the circumstances, reviewing findings of historical facts for 

clear error and determining whether those facts give rise to reasonable suspicion or probable 

cause, giving due weight to the inferences drawn by the trial court. Wells v. State, 2017 Ark. 

App. 174. We defer to the trial court’s superior position in determining the credibility of 

the witnesses and resolving any conflicts in the testimony. Id. 

Officer Eric Staten testified at the suppression hearing on June 20, 2016. He 

explained he was a patrol officer for Shannon Hills on June 14, 2015, and he responded to 

a vehicular collision on Skyline Drive, where he made contact with Preston Gamet. Upon 

arriving at the scene, Officer Staten saw a truck inside a house. He stated that several people 

were standing around, but no one was in the vehicle by the time he arrived. He said that 

Gamet voluntarily told him he had been the driver of the vehicle. Officer Staten asked 

Gamet if he needed medical attention, and Gamet responded that he did not. The officer 
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said he noticed redness in Gamet’s eyes and the smell of intoxicants. He asked Gamet about 

the intoxicants, and Gamet admitted he had been drinking. He said he then asked Gamet 

how his truck got inside the house, and Gamet told him, he was returning from the grocery 

store when he saw some headlights coming toward him, and he tried not to hit the 

oncoming headlights. Gamet told the officer he did not remember anything after that. 

Officer Staten stated that he placed Gamet in the patrol car for his safety and asked a deputy 

to take him to the Saline County Detention Center for a breath-alcohol test. He later made 

contact with Gamet at the Saline County jail; checked on the breathalyzer results, which 

were over the limit; and arrested Gamet for DWI. On cross-examination, Officer Staten 

acknowledged that he would not have allowed Gamet to leave the scene and that he did 

not read Gamet his Miranda rights at the scene. 

Gamet testified at the suppression hearing. He said he did not remember telling the 

officer that he was the one driving the truck and that all he really remembered was from the 

time he was in the back of the police car forward. 

The statements Gamet sought to suppress were his admissions that he was the driver 

of the vehicle, that he had been drinking, and that he was trying to avoid oncoming 

headlights. The trial court concluded that Gamet was not in custody at the time he gave 

those statements, that the officer was conducting a preliminary investigation at the scene, 

and that the motion to suppress should be denied.

Rule 3.1 of the Arkansas Rules of Criminal Procedure provides,

A law enforcement officer lawfully present in any place may, in the 

performance of his duties, stop and detain any person who he reasonably suspects is 

committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor 

involving danger of forcible injury to persons or of appropriation of or damage to 
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property, if such action is reasonably necessary either to obtain or verify the 

identification of the person or to determine the lawfulness of his conduct. An officer 

acting under this rule may require the person to remain in or near such place in the 

officer’s presence for a period of not more than fifteen (15) minutes or for such time 

as is reasonable under the circumstances. At the end of such period the person 

detained shall be released without further restraint, or arrested and charged with an 

offense.

Lawful detention under Rule 3.1 does not curtail a person’s freedom of action to a degree 

associated with a formal arrest such that a Miranda warning is required. Wells, supra. 

Here, Officer Staten was called to a scene where a vehicle had plowed into several 

houses. Gamet voluntarily told the officer he was the vehicle’s driver. As the officer 

approached him, he noticed Gamet’s eyes were red and he smelled of intoxicants. Based on 

those observations, the officer asked Gamet if he had been drinking, and Gamet admitted 

he had. Officer Staten’s contact with Gamet that resulted in these statements of ownership 

of the vehicle resting inside a house, acknowledgement of his drinking, and explaining the 

surrounding events did not amount to a curtailment of Gamet’s freedom of action to a 

degree associated with a formal arrest so as to require a Miranda warning. There is no basis 

for reversing the trial court’s denial of Gamet’s motion to suppress. 

For his final point of appeal, Gamet contends the trial court committed reversible 

error by failing to give him a meaningful opportunity for allocution. We disagree.

Arkansas Code Annotated section 16-90-106 (Repl. 2016) provides in part that a 

defendant appearing for judgment must be asked by the trial court if he has any legal cause 

to show why judgment should not be pronounced against him. The failure to allow 

defendant to do so can amount to reversible error. Goff v. State, 341 Ark. 567, 19 S.W.3d 
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579 (2000). However, we do not reverse for failure to allow allocution where there has 

been no objection to the failure below. Id. 

Here, Gamet did not object to the trial court’s failure to ask him if he had any legal 

cause to show why judgment should not be pronounced against him. Consequently, in the 

absence of a proper objection to the trial court, we will not reverse on this basis. Id. 

Furthermore, Gamet testified at his sentencing hearing and therefore suffered no prejudice 

from the trial court’s failure to specifically ask him if he had any legal cause to show why 

judgment should not be pronounced against him. See Hill v. State, 331 Ark. 312, 962 S.W.2d 

762 (1998).

Affirmed. 

HIXSON and BROWN, JJ., agree. 

James Law Firm, by: Bobby R. Digby II and Michael Kiel Kaiser, for appellant.

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