S.A.T. v. State , 2016 Ark. App. 469 ( 2016 )

Cite as 2016 Ark. App. 469
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-91
S.A.T. Opinion Delivered: October 5, 2016
APPELLANT
APPEAL FROM THE CRAWFORD
V. COUNTY CIRCUIT COURT
[NO. 17JV-12-9]
STATE OF ARKANSAS
APPELLEE HONORABLE MICHAEL MEDLOCK,
JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court’s true criminal contempt finding for which
he was committed to the Division of Youth Services (DYS) for an indeterminate period of
time. His sole argument on appeal is that there was insufficient evidence that he willfully
committed criminal contempt. We affirm.
Appellee filed a family in need of services (FINS) petition in case number 17JV-12-
9 on January 19, 2012, alleging that appellant was “habitually disobedient to the reasonable
commands of school staff.” Following a hearing on February 15, 2012, in which appellant
entered a plea of true, the circuit court entered an order on February 21, 2012, adjudicating
appellant to be a FINS member. Accordingly, appellant was placed on formal supervision
for a period of twelve months during which he was subjected to certain orders of the circuit
court including, in pertinent part, cooperation with the circuit court’s orders, the terms and
conditions of formal supervision, and the Crawford County juvenile probation officer;
Cite as 2016 Ark. App. 469
mandatory school attendance with no unexcused absences, disciplinary problems, or tardies;
obedience to the lawful commands of his mother; and not leaving home without parental
knowledge and permission.
An agreed order was entered on April 20, 2012, following a March 22, 2012 hearing,
in which the circuit court found that appellant continued to be a FINS member. He was
ordered therein to successfully complete inpatient, residential treatment. He was ordered to
comply with all rules and regulations set by said facility during his treatment period and to
follow all after-care recommendations made by the facility upon his discharge.
An order was entered on November 6, 2012, finding that appellant continued to be
a FINS member. All previous orders remained in effect.
Appellee filed a petition in case number 17JV-13-182 on November 7, 2013, seeking
an adjudication of delinquency for appellant on charges of terroristic threatening in the first
degree, a Class D felony; terroristic threatening in the second degree, a Class A
misdemeanor; disorderly conduct, a Class C misdemeanor; and harassment, a Class A
misdemeanor.
Following a hearing in case number 17JV-13-182 on March 12, 2014, the circuit
court entered an order on the same date adjudging appellant delinquent on all four charges
specified in appellee’s November 7, 2013 petition. He was placed on twenty-four months’
probation and committed to the Division of Youth Services (DYS).
Following a hearing in case number 17JV-12-9, also on March 12, 2014, during
which appellant entered a plea of true to criminal contempt of court, the circuit court
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entered an order on the same date finding appellant in criminal contempt of court and
committing him to the DYS.
Appellant was released from the DYS on September 30, 2015, with an after-care
commitment length of 120 days. 1 He was released pursuant to a number of goals and
responsibilities.
On November 13, 2015, appellee filed a petition in a new case—case number 17JV-
15-266—seeking an adjudication of delinquency for appellant on charges of disorderly
conduct, a Class C misdemeanor; and two counts of assault in the third degree, also Class C
misdemeanors.
Also on November 13, 2015, appellee filed separate petitions in case numbers 17JV-
12-9 and 17JV-13-182 alleging that appellant had violated the following terms and
conditions of his formal supervision:
2. The Juvenile will not violate any Federal, State or Local Laws, including traffic
laws. The Juvenile will immediately notify his Probation Officer if arrested for any
offense.
3. The Juvenile will attend school regularly, unless legally excused, and cooperate
fully with teachers and school officials. If legally excused from school attendance, the
Juvenile will be expected to be involved in an approved alternative program. The
Juvenile will immediately notify his Probation Officer if absent, expelled or
suspended from school.
4. The Juvenile will not conduct himself in such a manner that would lead to him
being defined as being beyond the control of his parent(s) or guardian(s)/
custodian(s), school authorities or Probation Officer.
11. The Juvenile is expected to cooperate fully with any outside agency to whom he
may be referred by his Probation Officer.
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The circuit court had entered orders in case number 17JV-13-182 on April 30,
2015, and October 1, 2015, continuing appellant’s probation and its previous orders.
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Appellee listed appellant’s juvenile citation for disorderly conduct and two counts of assault
in the third degree in case number 17JV-15-266 as the factual basis for the petitions.
Accordingly, appellee sought a charge of criminal contempt of court in case number 17JV-
12-9 and probation revocation in 17JV-13-182.
Following a hearing on the same date, the circuit court entered three separate orders
on November 18, 2015. In case number 17JV-15-266, it adjudged appellant delinquent on
all three charges asserted in the petition despite appellant’s plea of not true. In case number
17JV-13-182, appellant was adjudged delinquent by virtue of probation revocation due to
its finding of true on the four charges listed in appellee’s petition despite appellant’s plea of
not true. In case number 17JV-12-9, appellant was found to be in criminal contempt of
court despite his plea of not true. Under all three cases, appellant’s probation was extended
until his eighteenth birthday and he was committed to the DYS for an indeterminate period
of time. This timely appeal followed.
On appeal, appellant argues that there was insufficient evidence that he willfully
committed contempt. We do not reach the merits of appellant’s argument.
Arkansas Rule of Criminal Procedure 33.1 provides:
(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. 2
2
Etoch v. State, 343 Ark. 361, 364, 37 S.W.3d 186, 189 (2001) (citing Ark. R. Civ.
P. 33.1 (b) & (c)).
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Rule 33.1 is strictly construed. 3 Below appellant made the following motion to dismiss at
the close of State’s evidence:
We are going to move on the charges of disorderly conduct and assault. He was not
there voluntarily. He did not act purposely or recklessly, he was placed in a situation
he did not want to be in. He told the officer he did not want to go to the restaurant.
He left the scene after an altercation. Neither Ms. [Way] nor Dale were in fear of
their safety, but [sic] their own testimony. It does not rise to the level of assault in
the third degree. We move to dismiss as the State has not met its burden.
The motion was denied, after which appellant was the sole witness for his case. Following
his testimony, appellant rested. He then went directly into his closing argument where he
stated, among other things, that “[appellant] did not act purposefully or recklessly in going
[to his mother’s residence] and creating this situation. He was in custody and forced into
this situation by the law enforcement and juvenile office.” He did not renew his motion to
dismiss prior to making his closing arguments.
Rule 33.1 states that it is appellant’s duty to strictly comply, offering the motion to
dismiss in a time and manner so that the State might have the opportunity to reopen its case
if the circuit court deems it necessary. 4 A dismissal argument made in a closing argument
does not preserve the issue of sufficiency, even in a bench trial. 5 Because appellant failed to
renew his motion to dismiss at the close of his own case—the close of all evidence—he
Id. at 365, 37 S.W.3d at 189 (citing Thomas v. State, 315 Ark. 504, 507, 868
3
S.W.2d 483 (1994)).
4
Hendrix v. State, 2014 Ark. App. 696, at 5, 450 S.W.3d 692, 695.
Id. at 5–6, 450 S.W.3d at 695 (citing McClina v. State, 354 Ark. 384, 123 S.W.3d
5
883 (2003); Hudson v. State, 2014 Ark. App. 305).
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waived his sufficiency argument. The sufficiency argument he now presents was not
preserved.
Affirmed.
VAUGHT and HIXSON, JJ., agree.
Lisa-Marie Norris, for appellant.
Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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