                                   Cite as 2017 Ark. App. 206


                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CR-16-880

                                               Opinion Delivered   April 5, 2017

PRESTON LEE GAMET                              APPEAL FROM THE SALINE
                                               COUNTY CIRCUIT COURT
                           APPELLANT           [NO. 63CR-15-418]
V.
                                               HONORABLE GARY ARNOLD, JUDGE
STATE OF ARKANSAS
                                               AFFIRMED
                              APPELLEE


                             DAVID M. GLOVER, Judge

       Preston Lee Gamet 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 (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

allocution. We affirm.

       On June 14, 2015, Gamet 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 Ambien and did not remember anything until he found himself

in the backseat of a patrol car.
                                  Cite as 2017 Ark. App. 206

       As his first point of appeal, Gamet 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 Gamet 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 Gamet’s physician were

admitted. According to the abstract, which is confirmed by the record, Gamet 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


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              four 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 Gamet’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, Gamet 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. 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 Gamet. 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

Gamet voluntarily told him he had been the driver of the vehicle. Officer Staten asked

Gamet if he needed medical attention, and Gamet responded that he did not. The officer

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said he noticed redness in Gamet’s eyes and the smell of intoxicants. He asked Gamet about

the intoxicants, and Gamet admitted he had been drinking. He said he then asked Gamet

how his truck got inside the house, and Gamet 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. Gamet told the officer he did not remember anything after that.

Officer Staten stated that he placed Gamet 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 Gamet at the Saline County jail; checked on the breathalyzer results, which

were over the limit; and arrested Gamet for DWI. On cross-examination, Officer Staten

acknowledged that he would not have allowed Gamet to leave the scene and that he did

not read Gamet his Miranda rights at the scene.

       Gamet 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 Gamet 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 Gamet 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

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       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. Gamet voluntarily told the officer he was the vehicle’s driver. As the officer

approached him, he noticed Gamet’s eyes were red and he smelled of intoxicants. Based on

those observations, the officer asked Gamet if he had been drinking, and Gamet admitted

he had. Officer Staten’s contact with Gamet that resulted in these statements of ownership

of the vehicle resting inside a house, acknowledgement of his drinking, and explaining the

surrounding events did not amount to a curtailment of Gamet’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 Gamet’s motion to suppress.

       For his final point of appeal, Gamet 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




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579 (2000). However, we do not reverse for failure to allow allocution where there has

been no objection to the failure below. Id.

       Here, Gamet 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, Gamet 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.

       James Law Firm, by: Bobby R. Digby II and Michael Kiel Kaiser, for appellant.

       Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.




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