Cite as 2026 Ark. App. 465
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-25-317
Opinion Delivered October 7, 2026
LEVI KASTL APPEAL FROM THE SCOTT
APPELLANT COUNTY CIRCUIT COURT
[NO. 64CR-23-70]
V.
HONORABLE JERRY DON RAMEY,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
BART F. VIRDEN, Judge
A Scott County jury convicted appellant Levi Kastl of first-degree criminal mischief
and theft of property, and he was sentenced as a habitual offender to an aggregate term of
twenty-five years’ imprisonment and ordered to pay restitution. On appeal, he argues that
there is insufficient evidence that he caused actual damage of more than $1,000 but less than
$5,000 to support his criminal-mischief conviction and that the wire he stole had a value of
$500 or more to support his conviction for theft of property. Because Kastl’s arguments are
not preserved for review, we affirm.
I. Jury Trial
Only a brief recitation of the trial testimony and motion content is necessary. In May
2023, an employee at Brightspeed, a utility company that provides telephone and internet
services, responded to a call about an outage and discovered a downed telephone pole. He saw axe marks at the base of the pole and noticed that copper wire was missing. A hatchet,
wire matching the wire from the pole, two Sawzalls, a blade for one Sawzall, and shears were
found in and around Kastl’s residence. In an interview with police, Kastl admitted that he
cut and stole the copper wire from the pole after it had fallen, but he denied cutting or
chopping down the pole. The State charged Kastl with first-degree criminal mischief1 and
theft of property.2
Ray Webb, a “construction FRN technician,” testified that he had been employed at
Brightspeed for about twenty-seven years and was “responsible for deal[ing] with the numbers
of what it would take to do the work on these situations.” Webb gave an itemized estimate
of about $3,369.53 to fully replace the telephone pole and wiring. Webb’s estimates included
costs for parts, labor, and contractor fees.
1
A person commits the offense of first-degree criminal mischief if he purposely and without legal justification destroys or causes damage to any property of another person. Ark. Code Ann. § 5-38-203(a)(1) (Supp. 2021). First-degree criminal mischief is a Class D felony if the amount of actual damage is more than $1,000 but $5,000 or less. Ark. Code Ann. § 5-38-203(b)(2). A person convicted of a felony offense under this section is subject to an enhanced sentence of an additional term of imprisonment of five years at the discretion of the court if the finder of fact finds that the damage to property involved the removal of nonferrous metal, as it is defined in section 17-44-101. Ark. Code Ann. § 5-38-203(d).
2
A person commits theft of property if he knowingly takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2021). Theft of property is a Class B felony if the property is utility property and the value of the property is $500 or more. Ark. Code Ann. § 5-36-103(b)(1)(D)(ii).
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When the State rested, defense counsel moved for a directed verdict as to criminal
mischief on the basis that the State had not proved that Kastl was the person who cut down
the telephone pole. As for theft of property, defense counsel said that, even though there
was his client’s statement that he had cut the wire from the pole, there was no corroborating
evidence that he cut and stole the wire.
When renewing the directed-verdict motion, defense counsel made a general renewal
of his earlier motion and then asked to reply to the State’s response. Defense counsel then
argued that there was a failure of proof on actual damage and value as to criminal mischief
and theft of property, respectively. The trial court denied the renewed motion. The jury
found Kastl guilty of both offenses.
II. Discussion
Arkansas Rule of Criminal Procedure 33.1(a) provides that in a jury trial, if a motion
for directed verdict is to be made, it shall be made at the close of the evidence offered by the
prosecution and at the close of all of the evidence. A motion for directed verdict shall state
the specific grounds therefor. Ark. R. Crim. P. 33.1(a). The failure of a defendant to
challenge the sufficiency of the evidence at the times and in the manner required 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(c). A motion for directed verdict based on
insufficiency of the evidence must specify the respect in which the evidence is deficient. Id.
A motion merely stating that the evidence is insufficient does not preserve for appeal issues
relating to a specific deficiency, such as insufficient proof on the elements of the offense. Id.
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A renewal at the close of all of the evidence of a previous motion for directed verdict
preserves the issue of insufficient evidence for appeal. Id.
On appeal, Kastl argues with respect to his criminal-mischief conviction that the State
failed to prove actual damage of more than $1,000 but $5,000 or less; instead, Kastl claims
the State relied entirely on speculation and Webb’s estimates. Kastl points out, however, that
Webb did not go to the scene and did not know exactly how much wire was missing. He
further notes that Webb did not have any invoices and that the pole and wire had not been
replaced, so “one is left to guess what the actual cost to replace it actually is.” As for his theftof-property conviction, Kastl argues on appeal that the State failed to prove that the wire he
took from the downed pole had a value of $500 or more. Kastl argues that the only evidence
came from Webb, who did not know how much wire was missing and had not yet replaced
the wire, so the jury was left with Webb’s speculation and conjecture about its value.
Kastl, however, failed to make these specific arguments in his initial directed-verdict
motion following the State’s case-in-chief. The failure to make motions for directed verdict
with specificity regarding the sufficiency issue on appeal equates to the motion never having
been made. Maxwell v. State, 373 Ark. 553, 285 S.W.3d 195 (2008). This is so even in
situations where the motion is specific at the close of all of the evidence but not at the close
of the State’s case. Id. In Maxwell, the supreme court declined to reach the issue of sufficiency
of the evidence as to whether the State proved the victim suffered a “serious physical injury,”
an element of proving unlawful discharge of a firearm from a vehicle. Although Maxwell
mentioned “serious physical injury” in passing during his initial directed-verdict motion, it
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was only in his renewed motion at the close of all of the evidence that he expanded on the
argument, referencing the victim’s immediate release from the hospital the same morning as
the incident. Because his initial motion had not been specific, Maxwell’s argument about
serious physical injury was not preserved.
In Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430, Taffner was convicted of rape and
second-degree sexual assault. At the close of the State’s case, he moved for a directed verdict
with respect to the charge relating to one of his victims, arguing that she was not a credible
witness. At the close of all of the evidence, Taffner renewed his motion for a directed verdict,
and his attorney specifically said that he was raising a new argument: that the State had failed
to prove that his alleged touching of the victim involved forcible compulsion. On appeal,
Taffner argued that the State failed to offer substantial evidence of forcible compulsion. Our
supreme court said that, when Taffner failed to raise his argument on forcible compulsion
in his initial directed-verdict motion and instead raised it as a “new argument” in his renewed
directed-verdict motion, the matter was not preserved for review.
Likewise, in Featherston v. State, 2024 Ark. App. 207, 687 S.W.3d 150, a drugconviction case, Featherston did not raise any argument regarding constructive possession of
drug paraphernalia in his initial directed-verdict motion; rather, he argued that the State
failed to prove that a pipe contained methamphetamine residue and, therefore, could have
been used to legally smoke tobacco or marijuana. When Featherston renewed his motion at
the close of all of the evidence, he specifically challenged the sufficiency of the evidence
related to the constructive possession of drug paraphernalia. We held that, because
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Featherston did not argue constructive possession in his initial directed-verdict motion at
the close of the State’s case-in-chief, his argument was not preserved for appellate review. See
also Gladden v. State, 2025 Ark. App. 78, 706 S.W.3d 741 (holding that Gladden, who raised
in his initial directed-verdict motion only the sexual-assault victim’s failure to make a positive
identification of him, failed to preserve argument regarding his status as caretaker or as
otherwise having position of trust or authority over victim because he did not raise that
argument in his directed-verdict motion at the close of the State’s case-in-chief; rather,
Gladden made that argument for first time after defense had rested and, therefore, waived
argument for appellate review).
Here, Kastl challenged specific elements of criminal mischief and theft of property—
the amount of damage and the value of stolen property, respectively—for the first time in his
renewed motion for directed verdict at the close of all of the evidence. No mention was made
of these elements in Kastl’s initial directed-verdict motion following the State’s case-in-chief.
This was not sufficient to preserve his arguments for appellate review. See, e.g., Taffner, supra.
Because Kastl’s challenge to the sufficiency of the evidence has been waived, we affirm his
convictions without addressing the merits.
Affirmed.
KLAPPENBACH, C.J., and ABRAMSON, J., agree.
Thompson Law Firm, PLLC, by: Theodis N. Thompson Jr., for appellant.
Tim Griffin, Att’y Gen., by: Dalton Cook, Ass’t Att’y Gen., for appellee.
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