Ark. Code Ann. ยง 5-1-110(b)(1). The State's initial response is that Lee's double-jeopardy argument is not preserved for appeal. Citing Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001), the State asserts that because Lee's counsel made the argument before the jury convicted Lee, he failed to preserve the issue. In Brown, defense counsel argued, in directed-verdict motions, that double-jeopardy required that the State elect between first-degree battery and terroristic-act charges.
Moreover, we have made it clear that a defendant, in making his motions for directed verdict, must anticipate an instruction on lesser-included offenses and specifically address the elements of that lesser-included offense on which he wishes to challenge the State's proof in his motion. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). At the close of the State's case-in-chief, Grillot made the following argument:
We have long held that under this provision the appellant's preservation of a sufficiency-of-the-evidence challenge will fail if the appellant was ultimately convicted of a lesser-included offense but did not address the elements of this lesser-included offense when making the motion for a directed verdict. See, e.g., Brown v. State, 347 Ark. 308, 315, 65 S.W.3d 394, 398 (2001); Walker v. State, 318 Ark. 107, 108, 883 S.W.2d, 831, 832 (1994). Accordingly, "a defendant, in making his motions for directed verdict, must anticipate an instruction on lesser included offenses and specifically address the elements of that lesser included offense on which he wishes to challenge the State's proof in his motion."
Although Taylor made what he called a directed-verdict motion below, because this was a bench trial, it was technically a motion for dismissal.The controlling case is our supreme court's decision in Brown v. State , 347 Ark. 308, 65 S.W.3d 394 (2001). Similar to this case, the appellant in Brown raised a double-jeopardy argument in his motion for directed verdict.
Our courts have considered whether gunshot wounds constituted serious physical injury on several occasions. SeeBrown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). In Brown, James Brown was chasing his wife, each in their respective vehicles, when Brown shot at his wife's van, hitting it nine times and wounding her.
Relatedly, a victim's recovery from such an injury does not change the degree of injury. Brown v. State, 347 Ark. 308, 316, 65 S.W.3d 394, 399 (2001). Here, the State introduced evidence-including photographs of the wound-that McCoy suffered a four-centimeter-long laceration to his arm, which was deep enough to require multiple sutures to close.
Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). Declaring a mistrial is proper only where the error is beyond repair and cannot be corrected by any curative relief. Brown v. State , 347 Ark. 308, 65 S.W.3d 394 (2001). The judge presiding at trial is in a better position than anyone else to evaluate the impact of any alleged errors.
However, the case law cited by appellee to support the notion that some objections can not arise until after the sentencing verdicts is not applicable to this case. The two cases cited by appellee, Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001) and Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993), discuss how objections in double jeopardy situations do not arise until after the jury's verdict because a defendant can be prosecuted for multiple offenses, whereas certain multiple convictions are barred by the Double Jeopardy Clause. That analysis is clearly distinguishable from the instant case, where appellant made a proper directed-verdict motion alleging that the evidence was not sufficient to sustain a verdict for manslaughter because there was not an appropriate felony to support the manslaughter charge. He properly renewed that motion at the end of the trial, in addition to objecting to a jury instruction based on the same argument. While appellant did not seek relief by a posttrial motion or by requesting a new trial, controlling case law has only required a motion for directed verdict be made at the end of the prosecution's case, and again at the close of all the evidence, in order for issues argued at the trial court
A defendant, in making his motions for directed verdict, must anticipate an instruction on lesser-included offenses and specifically address the elements of that lesser-included offense on which he wishes to challenge the State's proof in his motion. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Since Jefferson failed to address the elements of attempted second-degree murder in his directed-verdict motion, we do not address this issue.
The trial court has wide discretion in granting or denying a motion for mistrial, and, absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). When viewing the cautionary instructions the trial court issued at the time the testimony concerning pornography was given, we hold that any potential prejudice was cured and that the trial court did not abuse its discretion in denying the motion for mistrial.