Benjamin Vestal v. State of Arkansas , 2022 Ark. App. 431 ( 2022 )

Cite as 2022 Ark. App. 431ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-22-47
BENJAMIN VESTAL Opinion Delivered October 26, 2022
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
APPELLANT [NOS. 23CR-20-667 & 23CR-20-760]
V. HONORABLE TROY B. BRASWELL,
JR., JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
WAYMOND M. BROWN, Judge
This is a consolidated appeal of two separate cases involving appellant Benjamin
Vestal. In case No. 23CR-20-667, appellant was charged with theft by receiving with a value
greater than $5000 but less than $25,000, and first-degree terroristic threatening. In case
No. 23CR-20-760, appellant was charged with second-degree discharge of a firearm from a
car, possession of firearm by certain persons, and aggravated assault. In case No. 23CR-20-
667, appellant was found guilty of theft by receiving with a value less than $1000 and was
sentenced to twelve months’ imprisonment in the county jail. He was also found guilty of
first-degree terroristic threatening and was sentenced to fifteen years’ imprisonment. 1 In case
1
The sentences in this case were to run concurrently to each other and concurrently
to the sentences in case No. 23CR-20-760.
NO. 23CR-20-760, appellant was found guilty of all charges and sentenced to an aggregate
term of thirty years’ imprisonment followed by ten years’ suspended imposition of sentence. 2
The sentencing orders in both cases were filed on October 13, 2021. Appellant’s timely
appeal followed.
Appellant argues on appeal that the evidence was insufficient to support his
convictions. The State contends that appellant failed to preserve the issue for appellate
review. We agree. In order to preserve a challenge to the sufficiency of the evidence in a
bench trial, a criminal defendant must make a specific motion for dismissal at the close of
all evidence.3 Rule 33.1 reads in pertinent part:
(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.4
2
Appellant was sentenced as a habitual offender in both cases.
3
Sellers v. State, 2013 Ark. App. 210; Ark. R. Crim. P. 33.1(b)–(c) (2021).
4
Ark. R. Crim. P. 33.1(b)–(c) (2021).
2
It is well settled that Rule 33.1 is strictly construed. 5 Failure to adhere to the
requirements in Rule 33.1(b) “will constitute a waiver of any question pertaining to the
sufficiency of the evidence to support the verdict or judgment.” 6
Here, there is no indication that appellant ever moved for dismissal at his bench trials.
Therefore, his challenges to the sufficiency of the evidence supporting his convictions are
not preserved for our review, and we affirm.
Appellant raises a second challenge in case No. 23CR-20-760. Appellant maintains
that the circuit court abused its discretion by allowing Dylan Cartwright’s speculative
testimony concerning what May was experiencing after appellant allegedly shot at May’s Jeep.
A circuit court has broad discretion in evidentiary rulings, and this court will not reverse a
circuit court's ruling on the introduction of evidence unless the lower court has abused that
discretion.7
Appellant seems to be making two separate arguments in this challenge. First, he
argues that the circuit court erred by admitted Cartwright’s speculative testimony that May
was “stressed” after appellant shot at May’s vehicle. The State maintains, and we agree, that
although the circuit court overruled appellant’s objection, the State subsequently changed
the question. Therefore, Cartwright never answered the question appellant complains
about.
5
Sellers, supra.
6
Ark. R. Crim. P. 33.1(c).
7
Taylor v. State, 2022 Ark. App. 296.
3
Next, appellant argues that the circuit court erred by allowing Cartwright to testify,
over appellant’s objection, about what May said to him while they were fleeing appellant.
The circuit overruled the objection based on the excited utterance exception. Although
hearsay is generally not admissible pursuant to Rule 802 of the Arkansas Rules of Evidence,
Rule 803 provides an exception for an excited utterance even though the declarant is
available as a witness. An excited utterance is a “statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event
or condition.”8 Here, according to Cartwright, May handed him the phone and told him to
call 911 because they were being shot at. This falls within the type of circumstances
contemplated by the rule. Thus, the circuit court was correct in overruling appellant’s
objection.
Affirmed.
ABRAMSON and WHITEAKER, JJ., agree.
James Law Firm, by: William O. “Bill” James, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.
8
Ark. R. Evid. 803(2).
4