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Dickey v. State

Supreme Court of Arkansas

February 18, 2016

DONALD D. DICKEY, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE IZARD COUNTY CIRCUIT COURT. NO. CR-2010-28. HONORABLE TIM WEAVER, JUDGE.

         Larry R. Froelich, for appellant.

         Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          OPINION

Page 288

         ROBIN F. WYNNE, Associate Justice.

         Donald 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.

          In 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.

         At the 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.

         I. Sufficiency of the Evidence

         Appellant 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

Page 289

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 on appeal.

         II. Hearsay

         Appellant's 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 ...


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