                                Cite as 2016 Ark. App. 469


                 ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CR-16-91

 S.A.T.                                          Opinion Delivered:   October 5, 2016
                               APPELLANT
                                                 APPEAL FROM THE CRAWFORD
 V.                                              COUNTY CIRCUIT COURT
                                                 [NO. 17JV-12-9]
 STATE OF ARKANSAS
                                  APPELLEE HONORABLE MICHAEL MEDLOCK,
                                           JUDGE

                                                 AFFIRMED


                           WAYMOND M. BROWN, Judge

       Appellant appeals from the circuit court’s true criminal contempt finding for which

he was committed to the Division of Youth Services (DYS) for an indeterminate period of

time. His sole argument on appeal is that there was insufficient evidence that he willfully

committed criminal contempt. We affirm.

       Appellee filed a family in need of services (FINS) petition in case number 17JV-12-

9 on January 19, 2012, alleging that appellant was “habitually disobedient to the reasonable

commands of school staff.” Following a hearing on February 15, 2012, in which appellant

entered a plea of true, the circuit court entered an order on February 21, 2012, adjudicating

appellant to be a FINS member. Accordingly, appellant was placed on formal supervision

for a period of twelve months during which he was subjected to certain orders of the circuit

court including, in pertinent part, cooperation with the circuit court’s orders, the terms and

conditions of formal supervision, and the Crawford County juvenile probation officer;
                                 Cite as 2016 Ark. App. 469

mandatory school attendance with no unexcused absences, disciplinary problems, or tardies;

obedience to the lawful commands of his mother; and not leaving home without parental

knowledge and permission.

       An agreed order was entered on April 20, 2012, following a March 22, 2012 hearing,

in which the circuit court found that appellant continued to be a FINS member. He was

ordered therein to successfully complete inpatient, residential treatment. He was ordered to

comply with all rules and regulations set by said facility during his treatment period and to

follow all after-care recommendations made by the facility upon his discharge.

       An order was entered on November 6, 2012, finding that appellant continued to be

a FINS member. All previous orders remained in effect.

       Appellee filed a petition in case number 17JV-13-182 on November 7, 2013, seeking

an adjudication of delinquency for appellant on charges of terroristic threatening in the first

degree, a Class D felony; terroristic threatening in the second degree, a Class A

misdemeanor; disorderly conduct, a Class C misdemeanor; and harassment, a Class A

misdemeanor.

       Following a hearing in case number 17JV-13-182 on March 12, 2014, the circuit

court entered an order on the same date adjudging appellant delinquent on all four charges

specified in appellee’s November 7, 2013 petition. He was placed on twenty-four months’

probation and committed to the Division of Youth Services (DYS).

       Following a hearing in case number 17JV-12-9, also on March 12, 2014, during

which appellant entered a plea of true to criminal contempt of court, the circuit court




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entered an order on the same date finding appellant in criminal contempt of court and

committing him to the DYS.

       Appellant was released from the DYS on September 30, 2015, with an after-care

commitment length of 120 days. 1 He was released pursuant to a number of goals and

responsibilities.

       On November 13, 2015, appellee filed a petition in a new case—case number 17JV-

15-266—seeking an adjudication of delinquency for appellant on charges of disorderly

conduct, a Class C misdemeanor; and two counts of assault in the third degree, also Class C

misdemeanors.

       Also on November 13, 2015, appellee filed separate petitions in case numbers 17JV-

12-9 and 17JV-13-182 alleging that appellant had violated the following terms and

conditions of his formal supervision:

       2. The Juvenile will not violate any Federal, State or Local Laws, including traffic
       laws. The Juvenile will immediately notify his Probation Officer if arrested for any
       offense.

       3. The Juvenile will attend school regularly, unless legally excused, and cooperate
       fully with teachers and school officials. If legally excused from school attendance, the
       Juvenile will be expected to be involved in an approved alternative program. The
       Juvenile will immediately notify his Probation Officer if absent, expelled or
       suspended from school.

       4. The Juvenile will not conduct himself in such a manner that would lead to him
       being defined as being beyond the control of his parent(s) or guardian(s)/
       custodian(s), school authorities or Probation Officer.

       11. The Juvenile is expected to cooperate fully with any outside agency to whom he
       may be referred by his Probation Officer.


       1
        The circuit court had entered orders in case number 17JV-13-182 on April 30,
2015, and October 1, 2015, continuing appellant’s probation and its previous orders.
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Appellee listed appellant’s juvenile citation for disorderly conduct and two counts of assault

in the third degree in case number 17JV-15-266 as the factual basis for the petitions.

Accordingly, appellee sought a charge of criminal contempt of court in case number 17JV-

12-9 and probation revocation in 17JV-13-182.

       Following a hearing on the same date, the circuit court entered three separate orders

on November 18, 2015. In case number 17JV-15-266, it adjudged appellant delinquent on

all three charges asserted in the petition despite appellant’s plea of not true. In case number

17JV-13-182, appellant was adjudged delinquent by virtue of probation revocation due to

its finding of true on the four charges listed in appellee’s petition despite appellant’s plea of

not true. In case number 17JV-12-9, appellant was found to be in criminal contempt of

court despite his plea of not true. Under all three cases, appellant’s probation was extended

until his eighteenth birthday and he was committed to the DYS for an indeterminate period

of time. This timely appeal followed.

       On appeal, appellant argues that there was insufficient evidence that he willfully

committed contempt. We do not reach the merits of appellant’s argument.

       Arkansas Rule of Criminal Procedure 33.1 provides:

       (b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the
       close of all of the evidence. The motion for dismissal shall state the specific grounds
       therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s
       evidence, then the motion must be renewed at the close of all of the evidence.

       (c) The failure of a defendant to challenge the sufficiency of the evidence at the times
       and in the manner required in subsections (a) and (b) above will constitute a waiver
       of any question pertaining to the sufficiency of the evidence to support the verdict
       or judgment. 2

       2
        Etoch v. State, 343 Ark. 361, 364, 37 S.W.3d 186, 189 (2001) (citing Ark. R. Civ.
P. 33.1 (b) & (c)).
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Rule 33.1 is strictly construed. 3 Below appellant made the following motion to dismiss at

the close of State’s evidence:

       We are going to move on the charges of disorderly conduct and assault. He was not
       there voluntarily. He did not act purposely or recklessly, he was placed in a situation
       he did not want to be in. He told the officer he did not want to go to the restaurant.
       He left the scene after an altercation. Neither Ms. [Way] nor Dale were in fear of
       their safety, but [sic] their own testimony. It does not rise to the level of assault in
       the third degree. We move to dismiss as the State has not met its burden.

The motion was denied, after which appellant was the sole witness for his case. Following

his testimony, appellant rested. He then went directly into his closing argument where he

stated, among other things, that “[appellant] did not act purposefully or recklessly in going

[to his mother’s residence] and creating this situation. He was in custody and forced into

this situation by the law enforcement and juvenile office.” He did not renew his motion to

dismiss prior to making his closing arguments.

       Rule 33.1 states that it is appellant’s duty to strictly comply, offering the motion to

dismiss in a time and manner so that the State might have the opportunity to reopen its case

if the circuit court deems it necessary. 4 A dismissal argument made in a closing argument

does not preserve the issue of sufficiency, even in a bench trial. 5 Because appellant failed to

renew his motion to dismiss at the close of his own case—the close of all evidence—he




       Id. at 365, 37 S.W.3d at 189 (citing Thomas v. State, 315 Ark. 504, 507, 868
       3


S.W.2d 483 (1994)).
       4
           Hendrix v. State, 2014 Ark. App. 696, at 5, 450 S.W.3d 692, 695.

       Id. at 5–6, 450 S.W.3d at 695 (citing McClina v. State, 354 Ark. 384, 123 S.W.3d
       5


883 (2003); Hudson v. State, 2014 Ark. App. 305).

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waived his sufficiency argument. The sufficiency argument he now presents was not

preserved.

      Affirmed.

      VAUGHT and HIXSON, JJ., agree.

      Lisa-Marie Norris, for appellant.

      Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.




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