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ARKANSAS COURT OF APPEALS DIVISION III No. CR-13-948

Opinion Delivered MAY 14, 2014

WALLACE E. HUDSON, JR. APPEAL FROM THE WHITE APPELLANT COUNTY CIRCUIT COURT [NO. CR-13-115] V. HONORABLE ROBERT EDWARDS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

DAVID M. GLOVER, Judge

On May 4, 2012, appellant Wallace Hudson was stopped, arrested, and charged with

failure to maintain liability insurance (later amended to failure to provide proof of insurance),

driving left of center, and driving while intoxicated. Hudson was found guilty in district

court of all three offenses. He appealed to circuit court, where he was again convicted of all

three offenses in a bench trial. On appeal, Hudson argues that there was insufficient evidence

to support the circuit court’s finding that he was intoxicated based his admission that he had

taken his prescription medication (oxycodone) thirty minutes prior to being stopped.

However, this issue is not preserved for appellate review.

In a bench trial, a motion for dismissal shall be made at the close of all evidence and

shall state the specific grounds for dismissal. Arkansas Rule of Criminal Procedure 33.1(b)

(2013). A defendant’s failure to challenge the sufficiency of the evidence at the time and in Cite as

the manner specified in Rule 33.1(b) constitutes a waiver of any question pertaining to the

sufficiency of the evidence to support the judgment. Arkansas Rule of Criminal Procedure

33.1(c). Rule 33.1 is strictly construed. McClina v. State,

,

(2003).

Here, though Hudson’s counsel and the prosecuting attorney both made closing

arguments to the circuit court, Hudson’s counsel never moved for a dismissal of the charges.

Our supreme court has held that a challenge to the sufficiency of the evidence made during

a closing argument, instead of at the close of the evidence, does not preserve a sufficiency

argument for appellate review.

Because there was no motion to dismiss, Hudson has

waived any argument pertaining to the sufficiency of the evidence to support his conviction

for driving while intoxicated.

Affirmed.

GLADWIN, C.J., and HIXSON, J., agree.

Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.

Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., and Richmond Giles,

Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission

to the Bar of the Arkansas Supreme Court under the supervision of Darnisa Evans Johnson,

Deputy Att’y Gen., for appellee.

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