APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-18-1780] HONORABLE BARRY A. SIMS, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Leslie
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Nekola
Danyel Conery appeals the order of the Pulaski County Circuit
Court finding her guilty of second-degree terroristic
threatening. On appeal, Conery argues that the State failed
to present sufficient evidence of her guilt. We affirm.
This
case arose out of a confrontation between Conery and Kristina
Peterson. Peterson was a counselor at the middle school that
Conery's daughter attended. On October 10, 2017,
Conery's daughter had gotten in trouble for not having
her ID badge and having her cell phone with her at school.
Conery's daughter was sent to Peterson's office.
Conery called to speak with Peterson and became belligerent,
which caused Peterson to disconnect the call. Five to seven
minutes later, Conery arrived at the school, encountered
Peterson in the hallway, and began yelling and threatening
her. Conery called her "a fat bitch" and told her,
"I'll drag your ass. I will fuck you up. I will beat
your ass." Conery eventually left the building.
On
April 27, 2018, the Pulaski County District Court held a
bench trial and found Conery guilty of second-degree
terroristic threatening. Conery appealed to the Pulaski
County Circuit Court. On September 17, 2018, the circuit
court held a bench trial. She was again found guilty of
committing second-degree terroristic threatening, was fined
$1, 000, and was sentenced to one year in the county jail.
Conery
now challenges her conviction and alleges that the State
failed to present sufficient evidence of her guilt.
Specifically, she argues that the State failed to introduce
substantial evidence that would have allowed the fact-finder
to reasonably infer that Conery threatened Peterson with the
conscious object of filling her with intense fright.
A
motion to dismiss at a bench trial is a challenge to the
sufficiency of the evidence. Harris v. State, 2016
Ark.App. 23, 480 S.W.3d 229. However, a motion to dismiss
must state with specificity the grounds on which the motion
relies. See Ark. R. Crim. P. 33.1(b) (2019). Failure
to raise an issue in a motion does not preserve the issue for
appeal. See, e.g., Oliver v. State, 2016
Ark.App. 332, at 5, 498 S.W.3d 320, 323.
The
State argues that Conery did not preserve the specific
argument she makes on appeal in her motion to dismiss. We
agree. At the conclusion of the State's presentation of
its case-in-chief, defense counsel made the following motion
to dismiss the second-degree terroristic-threatening charge:
"Your honor, we'll ask . . . for a motion to dismiss
this case. That the State has not met its burden as far as
terroristic threatening regarding Ms. Conery." This
statement is not specific enough to preserve her claim that
the State did not prove the mental state required for
second-degree terroristic threatening. Thus, Conery cannot
now question the sufficiency of the evidence because she did
not preserve her challenge for appeal. We affirm the
conviction for failure to preserve her argument for appeal.
We
further remand the case to the circuit court for the limited
purpose of entering an amended sentencing order that corrects
two clerical errors in the October 12, 2018 sentencing order.
It is apparent to us that the sentencing order reflects a
scrivener's error. The first clerical error noted that
Conery was convicted of first-degree terroristic threatening
rather than second-degree terroristic threatening. The second
clerical error showed that Conery was to serve 365 months in
jail for her offense. This should be corrected to reflect
twelve months' jail time.
The
court in Sizemore v. State, which affirmed
appellant's conviction but remanded in part for the
circuit court to correct the sentencing order, found, "A
circuit court can enter an order nunc pro tunc at any time to
correct clerical errors in a judgment or order." 2015
Ark.App. 728, at 8-9, 478 S.W.3d 281, 285-86 (internal
citations omitted). Here, we affirm Conery's conviction,
but we remand for the circuit court to correct the sentencing
order.
Affirmed;
remanded to ...