Full Opinion

Cite as 2026 Ark. App. 428 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-25-745 CHARMANT BIROTTE Opinion Delivered September 23, 2026 APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT V. [NO. 58CR-23-523] STATE OF ARKANSAS HONORABLE JAMES DUNHAM, APPELLEE JUDGE AFFIRMED ROBERT J. GLADWIN, Judge Charmant Birotte appeals his conviction by a Pope County jury on a charge of aggravated assault. His sole argument on appeal is that there was insufficient evidence that he purposely engaged in conduct that created a substantial danger of death or serious physical injury to another person. We affirm because Birotte failed to preserve his sufficiency argument for appellate review. I. Facts and Procedural History On July 5, 2023, Arkansas State Police Trooper Ervin Clokey was conducting a traffic stop on Interstate 40 when a semitruck driven by Birotte passed his patrol vehicle. Trooper Clokey testified that the semitruck veered toward him as it passed, requiring him to lean back against his patrol car to avoid being struck. Trooper Clokey activated his lights and siren and pursued Birotte, who did not stop. Other law enforcement officers joined the pursuit. Officers deployed three sets of spike strips. Birotte avoided the first set, struck a second set, and then collided with Sergeant Rodney McNeese’s patrol vehicle. Sergeant McNeese had taken cover behind the supports of an overpass and was not injured. Birotte continued driving despite damage to his tire. After Birotte encountered a third set of spike strips and continued fleeing, officers ultimately fired into the semitruck’s engine and radiator to disable it. Birotte was tried before a jury on charges of aggravated assault, second-degree criminal mischief, and felony fleeing. At the close of the State’s case, defense counsel moved for a directed verdict, stating: Judge, at this time I’d ask for a directed verdict – that the State has failed to meet its burden as to the three charges of fleeing – they have not shown anything that shows the – the significant harm to the – the public, that he was duly – that the officer was trying to duly arrest him, they haven’t shown that he intentionally tried to hit either of the officers that the State has alleged. And there’s – as far as the testimony of the criminal mischief, the damage does not appear to – to have an exact amount. Counsel then explained his argument concerning the amount of damage supporting the criminal-mischief charge. The circuit court denied the motion and asked counsel, “[W]as there some other aspect of your motion I missed?” Counsel responded, “No.” Birotte thereafter testified in his own defense. At the close of all the evidence, defense counsel stated, “Judge, I would just renew my directed-verdict motions.” The circuit court denied the renewed motions. The jury found Birotte guilty, and he was sentenced to a 2 cumulative term of twenty-two years in the Arkansas Division of Correction pursuant to the June 24, 2025 sentencing order. A timely notice of appeal was filed on July 8, 2025, and this appeal followed. II. Discussion Birotte challenges the sufficiency of the evidence supporting his aggravated-assault conviction. Specifically, he contends that the State failed to prove that he purposely engaged in conduct that created a substantial danger of death or serious physical injury to another person. We do not reach the merits of this argument because it was not properly preserved for appellate review. Arkansas Rule of Criminal Procedure 33.1(a) (2025) requires a defendant in a jury trial who challenges the sufficiency of the evidence to move for directed verdict at the close of the State’s evidence and again at the close of all the evidence. The rule further requires that the motion “state the specific grounds therefore.” Ark. R. Crim. P. 33.1(a). A directed- verdict motion must inform the circuit court of the particular deficiency in the State’s proof, and a defendant’s failure to comply with the requirements of Rule 33.1 constitutes a waiver of any argument concerning the sufficiency of the evidence. Ford v. State, 2025 Ark. App. 459, at 5, 722 S.W.3d 530, 533–34; Ark. R. Crim. P. 33.1(c). Rule 33.1 is strictly construed, and an appellant is bound by the scope and nature of the directed-verdict motion made below. See Baker v. State, 2022 Ark. App. 392, at 2–3, 654 S.W.3d 351, 352. Birotte’s directed-verdict motion did not challenge the sufficiency of the evidence supporting his aggravated-assault conviction. Although counsel stated during the motion 3 that the State had not shown that Birotte “intentionally tried to hit either of the officers,” that statement cannot be considered apart from the context in which it was made. Counsel expressly introduced that portion of his motion by asserting that “the State has failed to meet its burden as to the three charges of fleeing.” He then separately identified criminal mischief and argued a specific deficiency in the State’s proof concerning the amount of property damage. Counsel never identified aggravated assault as a charge being challenged, nor did he argue that the State had failed to prove that Birotte purposely engaged in conduct creating a substantial danger of death or serious physical injury. Moreover, after ruling on the motion, the circuit court specifically asked counsel whether there was “some other aspect” of the motion that the court had missed. Birotte’s counsel responded, “No.” Thus, nothing in the motion apprised the circuit court that Birotte was challenging the sufficiency of the evidence supporting the aggravated-assault charge or, more specifically, the purposeful-conduct element of that offense. Rule 33.1 requires more than the use of language that might also bear upon an element of another offense. The motion must sufficiently identify the particular deficiency in the State’s proof to alert the circuit court to the issue being raised. See Long v. State, 2024 Ark. App. 98, at 4, 685 S.W.3d 280, 285. Here, counsel specifically identified the charges of fleeing and criminal mischief and articulated the alleged deficiencies in the State’s proof as to those charges. He did not do so with respect to aggravated assault. His general renewal of the earlier motions at the close of all the evidence did not expand their scope. 4 Because Birotte did not challenge the sufficiency of the evidence supporting the aggravated-assault conviction on the ground he now advances on appeal, the argument is not preserved for our review. Accordingly, we affirm without reaching the merits of his sufficiency challenge. Affirmed. THYER and MURPHY, JJ., agree. K. “Presley” Hager Turner, for appellant. Tim Griffin, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee. 5