                                Cite as 2016 Ark. App. 114

                 ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CR-15-797


JAMES ANDREW MOPPIN                              Opinion Delivered   February 24, 2016
                   APPELLANT
                                                 APPEAL FROM THE BOONE
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. 05CR-13-286-4]

STATE OF ARKANSAS                                HONORABLE GORDON WEBB,
                                 APPELLEE        JUDGE

                                                 AFFIRMED



                         RAYMOND R. ABRAMSON, Judge

       Appellant James Andrew Moppin was charged with domestic battery in the second

degree in the Boone County Circuit Court. A jury convicted him of the lesser offense of

domestic battery in the third degree. Moppin was placed on probation for one year, ordered

to serve twenty days in the county jail, and fined $600. On appeal, he argues that the circuit

court erred by denying his motion for directed verdict because the State did not prove he

knew the victim was sixty years of age or older and that the circuit court erred by overruling

his objection to the State’s closing argument. Moppin asserts that the State improperly argued

that he had the burden of proof on the issue of whether he knew the victim was sixty years

old or older. We affirm.

       At trial, evidence was presented that Rodney McCullough is Moppin’s father-in-law.

McCullough and Moppin, along with Moppin’s nuclear family, lived together in a small

trailer in Omaha, Arkansas. On September 26, 2013, Moppin returned home after four or
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five days away to find his pet rats dead and outside on the front porch. Moppin was furious

and told McCullough he needed to move out immediately. Moppin then proceeded to beat

McCullough; ultimately, McCullough had to be air lifted by helicopter from the hospital in

Harrison to a Springfield, Missouri, hospital, where he was admitted overnight with serious

injuries.

       A motion for a directed verdict is a challenge to the sufficiency of the evidence. Jackson

v. State, 375 Ark. 321, 324–25, 290 S.W.3d 574, 577 (2009). We do not address Moppin’s

challenge to the sufficiency of the evidence because it is not preserved for our review. At the

close of the State’s case, Moppin made a motion for a directed verdict as to the domestic-

battery charge, but he did not renew it at the close of all the evidence, as required by Rule

33.1(a) of the Arkansas Rules of Criminal Procedure. 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).

       Moppin’s second point on appeal is without merit. Moppin argues that in the State’s

closing argument, the State improperly shifted the burden of proof to him, forcing him to put

on evidence that he did not know that the victim was sixty years of age. However, this is not

an element of the crime for which Moppin was convicted. The jury found Moppin guilty

only of domestic battering in the third degree, not domestic battering in the second degree.

As such, he was not prejudiced by any asserted error relating to the domestic battering in the




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second degree. See Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). We therefore

affirm Moppin’s conviction.

      Affirmed.

      HARRISON and GLOVER, JJ., agree.

      Potts Law Office, by: Gary W. Potts, for appellant.

      Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.




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