Full Opinion

Cite as 2026 Ark. App. 380 ARKANSAS COURT OF APPEALS DIVISION II No. CR-25-478 DENIEK MITCHELL Opinion Delivered: September 2, 2026 APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT V. [NO. 58CR-24-33] STATE OF ARKANSAS HONORABLE JAMES DUNHAM, APPELLEE JUDGE AFFIRMED CASEY R. TUCKER, Judge On January 26, 2024, the State charged Deniek Mitchell with two counts of second- degree battery pursuant to Arkansas Code Annotated section 5-13-202(a)(4) (Supp. 2023), a Class D felony. The first count was based on his striking a law enforcement officer, and the second was based on his striking a medical care provider. Mitchell also was charged with possession of marijuana and resisting arrest, both Class A misdemeanors. Following a bench trial, Mitchell was convicted of all four charges. Mitchell appeals his second-degree-battery convictions. Mitchell’s sole argument on appeal is a challenge to the sufficiency of the evidence to support these convictions. The State responds that this argument is not preserved for appellate review. We agree that Mitchell’s challenge is not preserved and affirm Mitchell’s convictions. I. Trial Mitchell’s bench trial took place on March 4, 2025. The evidence presented at trial was that on December 22, 2023, Officers Jasmine Reese and Mark Thomas of the U.S. Forest Service were driving north on Highway 7 when they encountered Mitchell driving south at twenty miles an hour over the speed limit. The officers conducted a traffic stop, which was captured on Officer Reese’s body camera. During the course of the stop, Officer Reese smelled the odor of marijuana coming from Mitchell’s car. Mitchell initially denied that he had illegal drugs in his car. When Officer Reese told Mitchell she could smell the marijuana, he admitted having it. Until this point, Mitchell was cooperative. However, when Officer Reese told him to unbuckle his seatbelt and exit his vehicle so the officers could search it, Mitchell refused, stating he has a medical condition that prevented him from doing so. He referred to his condition as functional neurological disorder and stated he needed medical personnel present before he could exit the car in case he had “a functional spasm” due to following the officers’ orders to get out of the car. The officers called for an ambulance, which they were told would take at least forty-five minutes to arrive. While awaiting the ambulance, the officers continued to request that Mitchell exit his car. Mitchell refused, instead offering to give the marijuana to the officers. He also told the officers that they could search his vehicle while he remained seated in the driver’s seat. Ultimately, the officers were required to physically unfasten Mitchell’s seatbelt and remove him from his car. While Officer Thomas was removing him from the car, Mitchell, who had been “dead weight,” tensed and began to rotate his body. His arm came up and struck 2 Officer Thomas hard on the right side of his face and eye. According to Officer Thomas, it did not feel like a glancing slap; it was affirmative contact with his face. After striking Officer Thomas’s face, Mitchell fell to the ground and continued to “spin.” Much of the officers’ struggle with Mitchell occurred in the southbound lane of Highway 7 as Mitchell fought their efforts to get him to the shoulder of the highway. Mitchell gave no articulable history about his condition and could not identify a doctor or any medical professional who had diagnosed him. Officer Thomas testified that he had pain in his right eye for several days following being struck by Mitchell. Photographs taken after the incident showed that Officer Thomas’s right eye was red and appeared irritated, and the area below his eye was red. When the ambulance arrived on the scene, Mitchell was able to get on the cot to be placed in the ambulance. At the hospital, he complained of shoulder pain, so the medical care provider ordered two x-rays. Mitchell underwent one x-ray, then refused the second. When the x-ray technicians began to leave, saying they would report that he refused the second x-ray, Mitchell agreed to undergo the second x-ray. Alisha Whitehead, an x-ray technician, tried to help Mitchell sit up in a comfortable position for the x-ray. While Whitehead was assisting him, Mitchell struck the left side of her face with his arm. Whitehead testified that she could not say whether Mitchell had intentionally struck her. However, Mitchell knew where she was standing before he struck her and did not apologize afterwards. The hospital staff cleared Mitchell to go to jail. The medical providers who examined him told the officers that there was nothing wrong with him. 3 When officers at the jail were booking Mitchell into custody, Mitchell fell to the ground and yelled that he was having a seizure and needed medical attention. When officers attempted to get him on his feet and into a chair, he became combative, grabbing one officer’s wrist and another officer’s collar. According to Officer Thomas, Mitchell had a “significant altercation” with deputies in which he “grabbed a hold of several of them and started actively fighting” while making comments such as, “Oh, you want to fight?” Officer Thomas testified that the entire encounter with Mitchell—from the time he was stopped until he was booked—lasted approximately six hours, an unusually long time, due to Mitchell’s resistance every step of the way. Officer Thomas testified that, in his fourteen years of experience, he had dealt with people in a variety of medical crises, including seizures, and Mitchell did not appear to be in a medical crisis. Mitchell’s movements, rather than being random and spasmodic, were directly counter to Officer Thomas and what he was trying to accomplish. Mitchell would stop his movements while on the ground and make verbal threats. Officer Thomas testified that his contact with Mitchell resembled his previous encounters with other resistant suspects. At the close of the State’s case, Mitchell’s counsel moved for a directed verdict as to the two counts of battery, arguing that Mitchell had legal justification for striking the victims. His argument was that he had a medical condition that caused him to spasm when certain pressures occurred. The court denied his motion. 4 Mitchell was the sole witness to testify for the defense. He testified that he has a functional neurological disorder. He described his condition as follows: Pretty much your nervous system has two categories: conscious and subconscious. Consciously, you can do things to counteract the subconscious, but if you don’t allow the subconscious to vent and it becomes overwhelmed, then it will take over. So I had to, basically, understand that I was putting myself in compromising positions so I could continue to recover. .... I - - I always have the spasms. The - - the seizures are my subconscious trying to remove them, but there’s so much tension and stress there that it - - it can’t all be done at once. So while trying to live a normal life, I consciously put myself in compromising positions, and I had to learn to stop doing that. Mitchell testified that he has chronic back and lower-extremity pain. On cross-examination, Mitchell admitted that his medical records stated that he has substance-abuse disorder, alcohol disorder, cannabinoid disorder, posttraumatic-stress disorder, narcissistic personality disorder, and bipolar disorder. He disagreed with many of these diagnoses. Mitchell testified that his personal description of his disorder is his conscious not agreeing with his subconscious. Mitchell admitted that in a previous case, he pleaded guilty to obstructing governmental operations and criminal trespass. At the conclusion of Mitchell’s case, defense counsel did not move to dismiss or renew his motion for directed verdict. Instead, he went directly into his closing argument. The court found Mitchell guilty on all charges and sentenced him to twenty-four months’ incarceration and forty-eight months’ suspended imposition of sentence on each of the 5 battery charges. On each of the misdemeanor charges, the court sentenced Mitchell to twelve months’ suspended imposition of sentence and fined him $500. II. Preservation The rule concerning motions for directed verdict in both jury and nonjury criminal trials is Arkansas Rule of Criminal Procedure 33.1, which provides in pertinent part: (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. Ark. R. Crim. P. 33.1(b) & (c). Rule 33.1 is strictly construed. Hendrix v. State, 2014 Ark. App. 696, 450 S.W.3d 692. And a closing argument cannot serve as a motion to dismiss. Id.; see also Grube v. State, 2010 Ark. 171, 368 S.W.3d 58; McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003); Oliver v. State, 2016 Ark. App. 332, 498 S.W.3d 320. Mitchell neither renewed his motion for a directed verdict nor moved to dismiss at the close of all the evidence. Pursuant to Rule 33.1 and applicable precedent, the sufficiency- of-the-evidence issue is not preserved. Thus, we affirm without addressing the merits of Mitchell’s argument. Affirmed. GLADWIN and BARRETT, JJ., agree. 6 Robert M. “Robby” Golder, for appellant. Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee. 7