Hudson v. State , 2014 Ark. App. 305 ( 2014 )

Cite as 2014 Ark. App. 305
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-13-948
Opinion Delivered MAY 14, 2014
WALLACE E. HUDSON, JR. APPEAL FROM THE WHITE
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-13-115]
V.
HONORABLE ROBERT EDWARDS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
DAVID M. GLOVER, Judge
On May 4, 2012, appellant Wallace Hudson was stopped, arrested, and charged with
failure to maintain liability insurance (later amended to failure to provide proof of insurance),
driving left of center, and driving while intoxicated. Hudson was found guilty in district
court of all three offenses. He appealed to circuit court, where he was again convicted of all
three offenses in a bench trial. On appeal, Hudson argues that there was insufficient evidence
to support the circuit court’s finding that he was intoxicated based his admission that he had
taken his prescription medication (oxycodone) thirty minutes prior to being stopped.
However, this issue is not preserved for appellate review.
In a bench trial, a motion for dismissal shall be made at the close of all evidence and
shall state the specific grounds for dismissal. Arkansas Rule of Criminal Procedure 33.1(b)
(2013). A defendant’s failure to challenge the sufficiency of the evidence at the time and in
Cite as 2014 Ark. App. 305
the manner specified in Rule 33.1(b) constitutes a waiver of any question pertaining to the
sufficiency of the evidence to support the judgment. Arkansas Rule of Criminal Procedure
33.1(c). Rule 33.1 is strictly construed. McClina v. State, 354 Ark. 384, 123 S.W.3d 883
(2003).
Here, though Hudson’s counsel and the prosecuting attorney both made closing
arguments to the circuit court, Hudson’s counsel never moved for a dismissal of the charges.
Our supreme court has held that a challenge to the sufficiency of the evidence made during
a closing argument, instead of at the close of the evidence, does not preserve a sufficiency
argument for appellate review. Id. Because there was no motion to dismiss, Hudson has
waived any argument pertaining to the sufficiency of the evidence to support his conviction
for driving while intoxicated.
Affirmed.
GLADWIN, C.J., and HIXSON, J., agree.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., and Richmond Giles,
Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission
to the Bar of the Arkansas Supreme Court under the supervision of Darnisa Evans Johnson,
Deputy Att’y Gen., for appellee.
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