DONALD D. DICKEY, APPELLANT
STATE OF ARKANSAS, APPELLEE
FROM THE IZARD COUNTY CIRCUIT COURT. NO. CR-2010-28.
HONORABLE TIM WEAVER, JUDGE.
R. Froelich, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
F. WYNNE, Associate Justice.
D. Dickey appeals from his convictions for first-degree
murder and arson, for which he was sentenced to life
imprisonment. Because appellant received a sentence of life
imprisonment, our jurisdiction lies pursuant to Arkansas
Supreme Court Rule 1-2(a)(2) (2015). Appellant makes the
following arguments on appeal: that the trial court erred
when it (1) denied his motion for directed verdict and
allowed the jury to convict him of arson using only
circumstantial evidence; (2) denied his motion for directed
verdict and found there was substantial evidence to support
the jury's verdict; and (3) allowed witnesses to testify
as to statements made to them by the deceased about her fear
of him and about his prior physical abuse of her.
Appellant's arguments that the trial court erred by
denying his motions for directed verdict are not preserved
for review. His remaining point on appeal lacks merit.
Accordingly, we affirm.
July 2010, the home that appellant had shared with his wife,
Mary Dickey, prior to their separation and impending divorce
was severely damaged in a fire. Mary Dickey's body was
found in the burned remains of the home. The cause of the
fire was never determined due to the extensive damage to the
home. Appellant was arrested and charged with arson and
first-degree murder in connection with the fire and the death
of his wife. At trial, the State introduced a copy of an
interview with police in which appellant stated he was at the
home on the day of the fire. In the interview, appellant also
gave details regarding what he did that day that were
inconsistent with what other evidence showed. A couple
testified that they saw appellant driving in a direction
leading away from the home while, at the same time, they
could see smoke from the fire in the distance. The State
introduced a copy of a video from a convenience store showing
appellant buying gasoline before the fire started. Some time
after the fire started, appellant was seen at a dock washing
his clothes in the lake. The State introduced evidence that
the shirt and shoes he was wearing had gasoline on them and
that one of his socks had Mary's blood on it. Although
appellant told police that he had spilled gasoline on himself
while buying gas, the State introduced evidence intended to
show that this was not the case. The State also introduced
testimony from a number of witnesses that appellant had been
physically abusive toward Mary, that she was afraid of him,
and that she thought he might kill her. The trial court
denied appellant's pretrial motion in limine to exclude
the testimony and overruled appellant's objections to the
testimony at trial.
close of the State's evidence, appellant moved for a
directed verdict on both counts, and the motion was denied.
Appellant put on his case-in-chief, then moved for a directed
verdict a second time after he rested. The motion was denied
again. The State then put on rebuttal testimony. Appellant
did not renew his motion for a directed verdict after the
State rested. The jury found appellant guilty of both
first-degree murder and arson and sentenced him to life
imprisonment. This appeal followed.
Sufficiency of the Evidence
raises two points on appeal in which he argues that the trial
court erred in denying his motions for directed verdict.
Appellant's arguments on these two points are not
preserved for review. This court has consistently held that
Arkansas Rule of Criminal Procedure 33.1
requires that an appellant move for a directed verdict at the
close of the State's evidence and again at the close of
all of the evidence, and that the failure to do so waives a
challenge to the sufficiency of the evidence on appeal.
See, e.g., Davis v. State, 2009 Ark. 478,
348 S.W.3d 553; Flowers v. State, 362 Ark. 193, 202,
208 S.W.3d 113, 121 (2005); Romes v. State, 356 Ark.
26, 144 S.W.3d 750 (2004); Doss v. State, 351 Ark.
667, 97 S.W.3d 413 (2003); Pyle v. State, 340 Ark.
53, 8 S.W.3d 491 (2000). In King v. State, 338 Ark.
591, 999 S.W.2d 183 (1999), we specifically held that the
failure to renew a motion for directed verdict after the
close of the State's rebuttal testimony waived the issue
of sufficiency of the evidence. Accord Christian
v. State, 318 Ark. 813, 889 S.W.2d 717 (1994). Appellant
admits that he failed to renew the motion at the close of the
State's rebuttal testimony and asks this court to
overlook that omission because the error was "
harmless." However, we have held that this renewal is
more than a matter of mere form; it goes to the substance of
the evidence arrayed against the criminal defendant.
Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003);
Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998)
. Based on his failure to properly renew the motion for
directed verdict, we hold that appellant's challenges to
the sufficiency of the evidence are not preserved for review
remaining point on appeal is that the trial court erred by
allowing witnesses to testify as to statements made to them
by the deceased about her fear of him and his prior physical
abuse of her. We review evidentiary rulings under an
abuse-of-discretion standard, and we do not reverse absent a