Cite as 2017 Ark. App. 227

ARKANSAS COURT OF APPEALS

DIVISION III

No. CR-16-485

N.L.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered April 12, 2017

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[NO. 17JV-15-295]

HONORABLE MICHAEL MEDLOCK,

JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

The Crawford County Circuit Court adjudicated appellant N.L. delinquent and

committed him to the Department of Youth Services for an indeterminate period of time.

N.L. filed a timely notice of appeal and now challenges the sufficiency of the evidence

supporting his delinquency adjudication. We affirm.

The State filed a delinquency petition alleging that N.L. committed the offenses of

aggravated assault on a family or household member and second-degree domestic battery.1

These two charges stemmed from allegations that N.L. and his stepfather, Harrell Kimes, had

been involved in an altercation. During that altercation, N.L., who was armed with a knife,

hit Kimes so hard that Kimes required reconstructive surgery to repair his eye socket. At trial,

1

 The State’s original delinquency petition alleged that N.L. had also committed the

offense of possession of a controlled substance. That charge, however, was eventually severed

from the assault-and-battery charges at issue in this appeal. 
Cite as 2017 Ark. App. 227

the State presented evidence and testimony from Kimes and N.L.’s mother, Christine Kimes,

describing the facts surrounding the fight.

At the conclusion of the State’s case, N.L. moved for directed verdict:

Your Honor, at this time we move to dismiss on the grounds that the State has

not shown each and every element of the charges beyond a reasonable doubt, and we’d

renew all objections at this time.

N.L. proceeded with his case-in-chief. After the last defense witness had testified, the court

asked if there were any further witnesses, and counsel replied that he would “just ask for an

opportunity to be heard in closing.” Counsel went on to argue that the case was 

kind of [a] heat of passion situation. [N.L.] was justified in pulling the knife out. . . .

Harrell was the first aggressor as far as throwing a punch. He didn’t grab the knife

when Harrell was coming at him; he used his fists like Harrell was using. I would argue

that he’s justified in doing that.

The State then presented its closing arguments; the court asked for any response; and defense

counsel replied, “Your Honor, we’d just renew all objections.” 

On appeal, N.L.’s sole argument is a challenge to the sufficiency of the evidence on

the offenses of aggravated assault on a family or household member and second-degree

domestic battery. A person commits the offense of aggravated assault on a family member if,

under circumstances manifesting extreme indifference to the value of human life, the person

purposely engages in conduct that creates a substantial danger of death or serious physical

injury to a family or household member. Ark. Code Ann. § 5-26-306(a)(1) (Repl. 2013). A

person commits second-degree domestic battery if, with the purpose of causing physical injury

to a family or household member, the person causes serious physical injury to a family or

household member. Ark. Code Ann. § 5-26-304(a)(1).

2
Cite as 2017 Ark. App. 227

Under the Juvenile Code, the Arkansas Rules of Criminal Procedure apply to

delinquency proceedings. Ark. Code Ann. § 9-27-325(f) (Repl. 2015); see also T.C. v. State,

2010 Ark. 240, 364 S.W.3d 53. Rule 33.1 of the Arkansas Rules of Criminal Procedure

governs motions to dismiss in bench trials and provides in relevant part as follows:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made

at the close of all of the evidence. The motion for dismissal shall state the specific grounds

therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then

the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the

times and in the manner required in subsections (a) and (b) above will constitute a

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

verdict or judgment. A motion for directed verdict or for dismissal based on

insufficiency of the evidence must specify the respect in which the evidence is

deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal

issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A

renewal at the close of all of the evidence of a previous motion for directed verdict or

for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a

motion or a renewed motion at the close of all of the evidence for directed verdict or

for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate

review on the question of the sufficiency of the evidence.

(Emphasis added.)

The appellate courts strictly construe Rule 33.1. Grady v. State, 350 Ark. 160, 85

S.W.3d 531 (2002). Here, in order to have preserved his challenge to the sufficiency of the

evidence, N.L. was required to move to dismiss at the close of the evidence, and his motion

must have been specific enough to advise the circuit court of the exact element of the crime

that the State has failed to prove. See id. The rationale behind this rule is that “when specific

grounds are stated and the absent proof is pinpointed, the circuit court can either grant the

motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.”

3
Cite as 2017 Ark. App. 227

T.C., 2010 Ark. 240, at 9, 364 S.W.3d at 59 (quoting Pinell v. State, 364 Ark. 353, 357, 219

S.W.3d 168, 171 (2005)).

N.L.’s motion to dismiss at the close of the State’s case was a generic motion. Without

any specificity, N.L. contended only that the State had failed to prove the elements of the

offense. This was insufficient to preserve the specific sufficiency arguments that are being

raised on appeal. See Campbell v. State, 2017 Ark. App. 59, ___ S.W.3d ___. A general

motion merely asserting that the State has failed to prove its case is inadequate to preserve the

issue on appeal. T.C., 2010 Ark. 240, at 10, 364 S.W.3d at 59–60.

We are mindful that N.L. did raise justification and self-defense in his closing

statements at trial. On appeal, he expands on his justification and self-defense arguments,

contending that he was acting in defense of his mother and then in defense of himself against

Kimes. Specifically, he asserts that Kimes was the initial aggressor against N.L. and N.L.’s

mother and that it was Kimes who “egged [N.L.] on into a confrontation.” Therefore, he

maintains that he was acting in defense of himself and in defense of his mother. 

We nonetheless conclude that N.L.’s arguments are not preserved for appellate

review. This court has held that, even when a specific argument supporting the motion for

dismissal is made during the closing arguments, the sufficiency argument is not preserved for

appeal. D.S. v. State, 2009 Ark. App. 314; A.D.S. v. State, 98 Ark. App. 122, 252 S.W.3d

144 (2007).2 Moreover, the supreme court has held that a “failure to make [a] motion[ ] for

2

 See also State v. Holmes, 347 Ark. 689, 693, 66 S.W.3d 640, 643 (2002) (“In order

to preserve the question of the sufficiency of the evidence, Holmes should have made his

motion for directed verdict at the close of all the evidence before closing arguments.”) (emphasis

added). 

4
Cite as 2017 Ark. App. 227

directed verdict with specificity regarding the sufficiency issue on appeal equates to the

motion never having been made. We hold that this is so even in situations where the motion

is specific at the close of all the evidence but not at the close of the State’s case.” Williamson

v. State, 2009 Ark. 568, at 8, 350 S.W.3d 787, 791 (citing Elkins v. State, 374 Ark. 399, 402,

288 S.W.3d 570, 573 (2008)). Accordingly, we conclude that N.L. failed to preserve his

challenge to the sufficiency of the evidence.

Affirmed.

GRUBER, C.J., and VIRDEN, J., agree.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee.

5