                                  Cite as 2015 Ark. App. 427

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CR-14-1014


                                                   Opinion Delivered   AUGUST 26, 2015

DUSTIN WAYNE BROWN                                 APPEAL FROM THE GARLAND
                  APPELLANT                        COUNTY CIRCUIT COURT
                                                   [NO. 26CR-13-120]
V.
                                                   HONORABLE MARCIA R.
                                                   HEARNSBERGER, JUDGE
STATE OF ARKANSAS
                                   APPELLEE        AFFIRMED



                             KENNETH S. HIXSON, Judge

       Appellant Dustin Wayne Brown was charged in Garland County Circuit Court with

the first-degree murder of David Halpin.1 Appellant was accused of being an accomplice to

Steven Curtiss. A jury convicted Brown of manslaughter, enhancing the conviction based on

the use of a firearm in the commission of this felony. Appellant raises two arguments on

appeal for reversal: (1) that the trial court erred in not directing a verdict in his favor at the

close of the State’s case; and (2) that the trial court erred with regard to jury instructions in

failing to give AMI–Criminal 404 and in giving AMI–Criminal 401 in an allegedly improper

form. We affirm.

       In a jury trial, a motion for directed verdict is a challenge to the sufficiency of the

evidence. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). We view all the evidence


       1
        Appellant was also initially charged with second-degree battery of Amber
Brinsfield, but that charge was later dropped.
                                 Cite as 2015 Ark. App. 427

in the light most favorable to the State and affirm if the conviction is supported by substantial

evidence. Id. To preserve the sufficiency of the evidence for appellate review, however, a

defendant must move for directed verdict at the close of the State’s evidence and at the close

of all the evidence. Ark. R. Crim. P. 33.1(a) (2015). A motion for directed verdict shall state

the specific grounds therefor. Id. The failure of a defendant to challenge the sufficiency of

the evidence at the times and in the manner required in subsection (a) will constitute a waiver

of any question pertaining to the sufficiency of the evidence to support the verdict or

judgment. Ark. R. Crim. P. 33.1(c) (2015). In addition, to preserve for appeal the issue of

the sufficiency of the evidence to support a conviction on a lesser-included offense, a

defendant’s motion for directed verdict must address the lesser-included offense either by

name or by apprising the trial court of the elements of the lesser-included offense questioned.

Jefferson v. State, 359 Ark. 454, 198 S.W.3d 527 (2004); Grillot v. State, 353 Ark. 294, 107

S.W.3d 136 (2003); Nicholson v. State, 2010 Ark. App. 624; Mainard v. State, 102 Ark. App.

210, 283 S.W.3d 627 (2008).

       The State asserts that appellant failed to preserve a challenge to the sufficiency of the

evidence because his motion for directed verdict was not timely, nor did it specifically

challenge the lesser-included offense of manslaughter. Appellant asserts that his motion was

timely based on the direction he was given by the trial court.

       In this jury trial, defense counsel moved for directed verdict on the charge of first-

degree murder. Defense counsel did not move for a directed verdict on the lesser-included

offense of manslaughter, either by name or element. Appellant was ultimately convicted of


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manslaughter. The failure to move for a directed verdict on the offense of manslaughter

precludes appellate review of the sufficiency of the evidence. See id. For this reason, we need

not address the timeliness issue.

       Appellant next asserts reversible error in the jury instructions. The State and defense

offered AMI–Criminal 401, which explains the proof necessary to establish accomplice

liability. In accordance with the model jury instruction, the trial court instructed the jury:

       In this case the State does not contend that Dustin Wayne Brown acted alone in the
       commission of the offenses charged. A person is criminally responsible for the conduct
       of another person when he is an accomplice in the commission of an offense.

       An accomplice is one who directly participates in the commission of an offense or
       who, with the purpose of promoting or facilitating the commission of an offense:

              Solicits, advises, encourages, or coerces the other person to commit the offense;
              or

              Aids, agrees to aid, or attempts to aid the other person in planning or
              committing the offense; or

              Having a legal duty to prevent the commission of the offense, fails to make a
              proper effort to do so.

Appellant’s attorney states that neither the State nor the defense submitted the model jury

instruction with the last sentence included because there was no allegation that appellant had

a legal duty to prevent the crime. Appellant’s attorney argued at trial that the trial court’s

inclusion of the “legal duty” portion of the instruction entitled the defense to AMI–Criminal

404. This jury instruction, as applied to this defendant, reads as follows:

       Mere presence, acquiescence, silence, or knowledge that a crime is being committed,
       in the absence of a legal duty to act, is not sufficient to make one an accomplice.
       Therefore, if you find that Dustin Brown was only present while a crime was being
       committed and did not have a legal duty to act, then he is not an accomplice.

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Defense counsel argued that Instruction 404, which was proffered, clarified that in the absence

of a legal duty to prevent the crime, mere presence is insufficient to make one an accomplice.

The trial court denied the request to have the jury instructed on AMI–Criminal 404.

       Appellant argues that because the evidence supported the giving of Instruction 404, it

was error for the trial court not to give it. We disagree. Our supreme court has repeatedly

held that it is implicit in the accomplice-liability instruction (AMI–Criminal 401) that mere

presence or acquiescence at the crime scene is not enough to support accomplice liability.

Strain v. State, 2012 Ark. 184, 423 S.W.3d 1; Henderson v. State, 349 Ark. 701, 80 S.W.3d 374

(2002); Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Additionally, the failure to give

the “mere presence” instruction (AMI–Criminal 404), even when it is properly requested,

cannot be reversible error where AMI–Criminal 401 is given. Id. The test for reversing on

this issue is whether the omission infects the entire trial such that the resulting conviction

violates due process. Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008). We hold that

there is no reversible error in the trial court’s refusal to give the jury Instruction 404 because

the resulting conviction does not violate due process.

       As to appellant’s secondary argument that the trial court erred in giving the entirety of

Instruction 401 because the last sentence was unnecessary, we affirm. Because AMI–Criminal

401 is a complete and accurate statement of Arkansas law on accomplice liability, it was not

error to instruct the jury on the entirety of it. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468

(2004).

       Appellant’s conviction is affirmed.

       WHITEAKER and VAUGHT, JJ., agree.

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       Joseph C. Self, for appellant.

       LeslieRutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., and Matthew Rowland,
Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission
to the Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, Deputy
Att’y Gen., for appellee.




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