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Gamet v. State

Court of Appeals of Arkansas, Division I

April 5, 2017

PRESTON LEE GAMET APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-15-418] HONORABLE GARY ARNOLD, JUDGE

          James Law Firm, by: Bobby R. Digby II and Michael Kiel Kaiser, for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          OPINION

          DAVID M. GLOVER, Judge.

         Preston Lee Gamet was tried by a Saline County Circuit Court jury and found guilty of the offenses of DWI - first offense, an unclassified misdemeanor, and criminal mischief in the second degree, a Class D felony. He raises three points on appeal: 1) there was insufficient evidence for his two convictions; 2) the trial court erred in finding that he was not "in custody" for the purposes of Miranda v. Arizona, 384 U.S. 436 (1966), and in admitting his initial statements to law enforcement following the accident; and 3) the trial court committed reversible error by failing to give him a meaningful opportunity for allocution. We affirm.

         On June 14, 2015, Gamet was driving his truck when it struck several houses on a street in Saline County. His blood-alcohol level was tested at .09 after the incident. At trial, he testified he had taken an Ambien and did not remember anything until he found himself in the backseat of a patrol car.

         As his first point of appeal, Gamet contends that neither of his convictions are supported by substantial evidence because a) there was insufficient evidence he possessed the culpable mental state required for conviction under the DWI statute in effect at the time of the incident; b) there was insufficient evidence of actual damages for him to be convicted of criminal mischief in the second degree as a Class D felony; and c) there was insufficient evidence he committed a voluntary act by driving his car. We are unable to address the merits of these arguments because they were not properly preserved.

         After Gamet had renewed both of his motions for directed verdict, he asked for, and was given permission to "reopen very quickly and introduce [his] Exhibit No. 1, the medical records." There was no objection, and the medical records from Gamet's physician were admitted. According to the abstract, which is confirmed by the record, Gamet did not then renew his motions for directed verdict. That failure is fatal to his sufficiency challenges.

         In Davis v. State, 2009 Ark. 478, at 5-6, 348 S.W.3d 553, 557, our supreme court explained:

This court has had occasion to rule that a renewal of a motion for directed verdict made after the jury has been charged or instructed is not timely. This court has also had occasion to rule that a renewal of a motion for directed verdict made at the conclusion of the defendant's case-in-chief followed by a failure to renew after the State presents rebuttal evidence operates as a waiver. However, we have not previously had before us a case such as the present one where a defendant failed to renew his motion after reopening his own case to admit additional documents into evidence.
We conclude that the reasoning we applied in Christian is likewise applicable here. The plain language of Rule 33.1 requires that the motion be renewed at the close of all the evidence. The failure to do so operates as a waiver of any question relating to the sufficiency of the evidence to support the jury's verdict. We interpret Rule 33.1 strictly. Appellant's failure to renew his motion for directed verdict at the close of all the evidence, after he reopened his case to admit four documents into evidence, therefore operates as a waiver of his challenge to the sufficiency of the evidence to support the jury's verdict.

(Emphasis added.) (Citations omitted.) The Davis case dictates the outcome of this issue. We are unable to address the merits of Gamet's arguments because he waived the issues when he failed to renew his directed-verdict motions after reopening the case to introduce the medical records.

         For his second point of appeal, Gamet contends the trial court erred in denying his motion to suppress, particularly in finding he was not "in custody" for the purposes of Miranda, supra, and allowing the State to admit the statements he made to a law-enforcement officer immediately following the incident. We disagree.

         In reviewing a trial court's denial of a suppression motion, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the trial court. Wells v. State, 2017 Ark.App. 174. We defer to the trial court's ...


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