
    2017 Ark. App. 206
    Preston Lee GAMET, Appellant v. STATE of Arkansas, Appellee
    No. CR-16-880
    Court of Appeals of Arkansas, DIVISION I.
    Opinion Delivered April 5, 2017
    
      James Law Firm, by: Bobby R. Digby II, Little Rock, and Michael Kiel Kaiser, for appellant.
    Leslie Rutledge, Att’y Gen., Little Rock, by: Pamela Rumpz, Little Rock, Ass’t Att’y Gen., for appellee.
   DAVID M. GLOVER, Judge

| ¶ Preston Lee Garnet was tried by a Saline County Circuit Court jury and found guilty of the offenses of DWI—first offense, an unclassified misdemeanor, and criminal mischief in the second degree, a Class D felony. He raises three points on appeal: 1) there was insufficient evidence for his two convictions; 2) the trial court erred in finding that he was not “in custody” for the purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and in admitting his initial statements to law enforcement following the accident; and 3) the trial court committed reversible error by failing to give him a meaningful opportunity for allo-cution. We affirm.

On June 14, 2015, Garnet was driving his truck when it struck several houses on a street in Saline County. His blood-alcohol level was tested at .09 after the incident. At trial, he testified he had taken an Am-bien and did not remember anything until he found himself in the backseat of a patrol car.

laAs his first point of appeal, Garnet contends that neither of his convictions are supported by substantial evidence because a) there was insufficient evidence he possessed the culpable mental state required for conviction under the DWI statute in effect at the time of the incident; b) there was insufficient evidence of actual damages for him to be convicted of criminal mischief in the second degree as a Class D felony; and c) there was insufficient evidence he committed a voluntary act by driving his car. We are unable to address the merits of these arguments because they were not properly preserved.

After Garnet had renewed both of his motions for directed verdict, he asked for, and was given permission to “reopen very quickly and introduce [his] Exhibit No. 1, the medical records.” There was no objection, and the medical records from Garnet’s physician were admitted. According to the abstract, which is confirmed by the record, Garnet did not then renew his motions for directed verdict. That failure is fatal to his sufficiency challenges.

In Davis v. State, 2009 Ark. 478, at 5-6, 348 S.W.3d 553, 557, our supreme court explained:

This court has had occasion to rule that a renewal of a motion for directed verdict made after the jury has been charged or instructed is not timely. This court has also had occasion to rule that a renewal of a motion for directed verdict made at the conclusion of the defendant’s case-in-chief followed by a failure to renew after the State presents rebuttal evidence operates as a waiver. However, we have not previously had before us a case such as the present one where a defendant failed to renew his motion after reopening his own case to admit additional documents into evidence.
We conclude that the reasoning we applied in Christian is likewise applicable here. The plain language of Rule 33.1 requires that the motion be renewed at the close of all the evidence. The failure to do so operates as a waiver of any question relating to the sufficiency of the evidence to support the jury’s verdict. We interpret Rule 33.1 strictly. Appellant’s failure to renew his motion for directed verdict at the close of all the evidence, after he reopened his case to admit | /our documents into evidence, therefore operates as a waiver of his challenge to the sufficiency of the evidence to support the jury’s verdict.

(Emphasis added.) (Citations omitted.) The Davis case dictates the outcome of this issue. We are unable to address the merits of Garnet’s arguments because he waived the issues when he failed to renew his directed-verdict motions after reopening the case to introduce the medical records.

For his second point of appeal, Garnet contends the trial court erred in denying his motion to suppress, particularly in finding he was not “in custody” for the purposes of Miranda, supra, and allowing the State to admit the statements he made to a law-enforcement officer immediately following the incident. We disagree,

In reviewing a trial court’s denial of a suppression motion, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the trial court. Wells v. State, 2017 Ark. App. 174, 518 S.W.3d 106. We defer to the trial court’s superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.

Officer Eric Staten testified at the suppression hearing on June 20, 2016. He explained he was a patrol officer for Shannon Hills on June 14, 2015, and he responded to a vehicular collision on Skyline Drive, where he made contact with Preston Garnet. Upon arriving at the scene, Officer Staten saw a truck inside a house. He stated that several people were standing around, but no one was in the vehicle by the time he arrived. He said that Garnet voluntarily told him he had been the driver of the vehicle. Officer Staten asked Garnet if he needed medical attention, and Garnet responded that he did not. The officer 14said he noticed redness in Garnet’s eyes and the smell of intoxicants. He asked Garnet about the intoxicants, and Garnet admitted he had been drinking. He said he then asked Garnet how his truck got inside the house, and Garnet told him, he was returning from the grocery store when he saw some headlights coming toward him, and he tried not to hit the oncoming headlights. Garnet told the officer he did not remember anything after that. Officer Staten stated that he placed Garnet in the patrol car for his safety and asked a deputy to take him to the Saline County Detention Center for a breath-alcohol test. He later made contact with Garnet at the Saline County jail; checked on the breathalyzer results, which were over the limit; and arrested Garnet for DWL On cross-examination, Officer Staten .acknowledged that he would not have allowed Garnet to leave the scene and that he did not read Garnet his Miranda rights at the scene.

Garnet testified at the suppression hearing. He said he did not remember telling the officer that he was the one driving the truck and that all he really remembered was from the time he was in the back of the police car forward.

The statements Garnet sought to suppress were his admissions that he was the driver of the vehicle, that he had been drinking, and that he was trying to avoid oncoming headlights. The trial court concluded that Garnet was not in custody at the time he gave those statements, that the officer was conducting a preliminary investigation at the scene, and that the motion to suppress should be denied.

Rule 3.1 of the Arkansas Rules of Criminal Procedure provides,

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to | ¿property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

Lawful detention under Rule 3.1- does not curtail a person’s freedom of action to a degree associated with a formal arrest such that a Miranda warning is required. Wells, supra.

Here, Officer Staten was called to a scene where a vehicle had plowed into several houses. Garnet voluntarily told the officer he was the vehicle’s driver. As the officer approached him, he noticed Garnet’s eyes were red and he smelled of intoxicants. Based on those observations, the officer asked Garnet if he had been drinking, and Garnet admitted he had. Officer Staten’s contact with Garnet that resulted in these statements of ownership of the vehicle resting inside a house, acknowl-edgement of his drinking, and explaining the surrounding events did not amount to a curtailment of Garnet’s freedom of action to a degree associated with a formal arrest so as to require a Miranda warning. There is no basis for reversing the trial court’s denial of Garnet’s motion to suppress.

For his final point of appeal, Garnet contends the trial court committed reversible error by failing to give him a meaningful opportunity for allocution. We disagree.

Arkansas Code Annotated section 16-90-106 (Repl. 2016) provides in part that a defendant appearing for judgment must be asked by the trial court if he has any legal cause to show why judgment should not be pronounced against him. The failure to allow defendant to do so can amount to reversible error. Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000). However, we do not reverse for failure to allow allocution where there has been no objection to the failure below. Id.

Here, Garnet did not object to the trial court’s failure to ask him if he had any legal cause to show why judgment should not be pronounced against him. Consequently, in the absence of a proper objection to the trial court, we will not reverse on this basis. Id. Furthermore, Garnet testified at his sentencing hearing and therefore suffered no prejudice from the trial court’s failure to specifically ask him if he had any legal cause to show why judgment should not be pronounced against him. See Hill v. State, 331 Ark. 312, 962 S.W.2d 762 (1998).

Affirmed.

Hixson and Brown, JJ., agree.  