Pedro Velazquez v. State of Arkansas , 2022 Ark. App. 308 ( 2022 )

Cite as 2022 Ark. App. 308ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-21-578
Opinion Delivered August 31, 2022
PEDRO VELAZQUEZ APPEAL FROM THE YELL COUNTY
APPELLANT CIRCUIT COURT, NORTHERN DISTRICT
[NO. 75NCR-20-25]
V.
HONORABLE JERRY DON RAMEY,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Pedro Velazquez was convicted by jury of second-degree battery. He was
sentenced to serve a term of six years’ incarceration in the Arkansas Department of Correction. On
appeal, Velazquez argues that the circuit court erred in denying his directed-verdict motions. We
affirm Velazquez’s conviction without reaching the merit of his sufficiency challenge due to his failure
to preserve the argument for appellate review.
Because Velazquez’s argument is not preserved, an extensive recitation of the factual
background is unnecessary. Following an incident that occurred on January 6, 2020, during which
Juan Perez was injured and received medical treatment, Velazquez was charged with second-degree
battery, terroristic threatening, and endangering the welfare of a minor in the second-degree.
Following presentation of evidence and testimony, the jury found Velazquez guilty of second-
degree battery. Velazquez now appeals, arguing that the evidence was insufficient to support the
conviction. Specifically, Velazquez contends that the circuit court erred when it denied his motions
for directed verdict because the State failed to prove the “deadly weapon” element of the second-
degree-battery offense.
A motion for directed verdict is treated as a challenge to the sufficiency of the evidence, and
the denial of the motion is affirmed if sufficient evidence, either direct or circumstantial, supports
the verdict.1 A directed-verdict motion must specifically state the grounds on which the motion
relies.2 Any ground not specifically stated in such a motion is not preserved for appeal. 3 The
reasoning underlying this holding 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.4 A further reason that the motion must be specific is
that this court may not decide an issue for the first time on appeal.5 The failure of a defendant to
challenge the sufficiency of the evidence at the times and in the manner required will constitute a
waiver of any question pertaining to the sufficiency of the evidence to support the verdict. 6 A party
is bound by the scope and nature of his directed-verdict motion and cannot change the grounds on
appeal.7
1 Friday v. State, 2018 Ark. 339, 561 S.W.3d 318.
2 See Newton v. State, 2011 Ark. App. 190, 382 S.W.3d 711. See also Ark. R. Crim. P. 33.1
(2018).
3 Id.4 Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005).
5 Id.6 Ark. R. Crim. P. 33.1(c).
7 Blanton v. State, 2022 Ark. App. 44.
2
At the close of the State’s case, counsel for Velazquez moved for a directed verdict stating,
Judge, we move for a directed verdict on the Battery charge, there is no evidence of injury
that would be justified –– that would justify a Battery II conviction in this case. None
whatsoever.
The circuit court denied the motion. Following Velazquez’s waiver of the right to testify in his own
defense, the testimony of Captain Mark Frost with the Dardanelle Police Department, and the close
of all evidence, Velazquez renewed his directed-verdict motion, which the court again denied.
On appeal, in challenging the sufficiency of the evidence supporting his conviction for second-
degree battery, Velazquez asserts that because no weapon was recovered, Itzyianna Estrada’s8
testimony that she did not see a weapon or knife, and the absence of medical evidence that the injuries
to Perez were caused by a knife, the State failed to prove the “deadly weapon” element of the offense.
However, Velazquez failed to make this argument in his motions for directed verdict before
the circuit court. Instead, at trial, Velazquez simply argued that the State failed to establish that there
was evidence of an injury sufficient to justify a conviction for battery in the second degree.
Velazquez’s directed-verdict motion failed to mention, much less to identify, how the State’s proof
was insufficient to prove the deadly weapon element of the charged offense. Velazquez’s motion for
directed verdict only challenged the State’s proof as to the severity of Perez’s injuries, not the deadly
weapon element. Accordingly, because Velazquez failed to raise the argument he now makes before
the circuit court, it is not preserved for appellate review.9
8 The incident occurred in Estrada’s apartment.
9 Blanton, supra.
3
Because Velazquez raises this failure to establish the deadly weapon element of the second-
degree-battery-offense argument for the first time on appeal, it is not preserved for review. Further,
Velazquez has abandoned the only argument that he did make below—no evidence of injuries “that
would justify a Battery II conviction.” A party is bound by the nature and scope of the objections and
arguments made at trial and may not enlarge or change those grounds on appeal.10
A person commits battery in the second degree if, “[w]ith the purpose of causing physical
injury to another person, the person causes physical injury to another person by means of a deadly
weapon other than a firearm.”11 At trial, Perez testified that Velazquez stabbed him in the arm
multiple times with a knife, for which he sought medical attention and ultimately received between
fourteen and sixteen stitches for the wounds. Viewing the evidence in the light most favorable to the
State, as required,12 sufficient evidence was presented to establish that Velazquez used a deadly
weapon to cause physical injury to Perez.
Additionally, Velazquez challenges the credibility of witnesses, particularly the testimony of
Perez, pointing to his alcohol intake on the day of the incident and Perez’s admission that he provided
a false name to law enforcement.13 However, the jury assesses the credibility of witnesses, and it is
10 Merchant v. State, 2017 Ark. App. 576, 532 S.W.3d 136.
11 Ark. Code Ann. § 5-13-202(a)(2) (Supp. 2019).
12 See Benton v. State, 2020 Ark. App. 223, 599 S.W.3d 353.
13 Perez admitted that he provided law enforcement and the hospital with the name of his
nephew instead of his own name because of his undocumented status and lack of financial means to
pay for the medical treatment. He testified that he later contacted the police three times to correct
his name, and the hospital has the correct name so that he can pay what is owed for the medical
services he received.
4
free to believe all or part of any witness’s testimony and may resolve questions of conflicting
testimony and inconsistent evidence.14 This court will not reweigh the evidence or assess the
credibility of witnesses; that is the province of the fact-finder.15
Affirmed.
VIRDEN and GRUBER, JJ., agree.
Potts Law Office, by: Gary W. Potts, for appellant.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.
14 Chambers v. State, 2020 Ark. App. 54, 595 S.W.3d 371.
15 Id.5