APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. CR-13-845] HONORABLE CHARLES E. CLAWSON, JR., JUDGE
Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.
Leslie Rutledge, Att'y Gen., by: Brooke Jackson, Ass't Att'y Gen., for appellee.
RITA W. GRUBER, Judge
Appellant Jamie S. McCall was convicted in a bench trial of aggravated assault and sentenced to ten years' imprisonment. The conviction arose from an altercation at McCall's apartment on August 9, 2013, during which McCall allegedly attacked the victim, George Scroggins, with a box cutter. McCall contends on appeal that the evidence was insufficient to convict him and that the trial court abused its discretion in denying his request to withdraw his waiver of a jury trial. We hold that the court abused its discretion in denying McCall's motion to withdraw his jury-trial waiver and, accordingly, we reverse and remand.
I. Sufficiency of the Evidence
For his first point on appeal, McCall argues that the evidence is insufficient to sustain the aggravated-assault conviction. In order to challenge the sufficiency of the evidence on appeal from a bench trial, Rule 33.1 of the Arkansas Rules of Criminal Procedure requires a criminal defendant to move for a dismissal at the close of all of the evidence, stating the specific grounds therefor. Ark. R. Crim. P. 33.1(b) (2015). In this case, at the close of all of the evidence, the following colloquy took place:
McCall [appearing pro se]: Your honor, I'd like to move for a directed verdict.
Court: Based on?
McCall: Based on the conflicting testimony and on-I don't know if it is to you, but it's apparent to me that these people are prevaricating the truth to epic proportions.
Court: Motion be denied. State have any rebuttal?
Because McCall failed to specify the respect in which the evidence was deficient, we decline to reach the merits of the argument. In order to preserve a challenge to the sufficiency of the evidence, a defendant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Rodriguez-Gonzalez v. State, 2014 Ark.App. 208, at 3; Ark. R. Crim. P. 33.1(c). Merely challenging the credibility of all of the State's witnesses, without specifying what element of the offense the State has failed to prove, is not enough. See, e.g., Elkins v. State, 374 Ark. 399, 402, 288 S.W.3d 570, 573 (2008) (holding directed-verdict motion not sufficiently specific where it challenged "lack of credibility of any fact witnesses"). The reason underlying this rule is that, when specific grounds are stated and the proof is pinpointed, the trial court can either grant the motion or allow the State to reopen its case and supply the missing proof. Matar v. State, 2016 Ark.App. 243, at 2. A further reason that the motion must be specific is that the appellate court may not decide an issue for the first time on appeal and cannot afford relief that is not first sought in the trial court. Id.
II. Withdrawal of Jury-Verdict Waiver
For his second point on appeal, McCall argues that the trial court abused its discretion in denying his request to withdraw his waiver of his right to be tried by ...