concurring. I concur in the result reached and join in all but the majority’s discussion of the merits of appellant’s argument regarding the sufficiency of the evidence.
Rule 33.1 of the Arkansas Rules of Criminal Procedure (formerly Rule 36.21(b)) provides that, injury trials, any issue pertaining to the sufficiency of the evidence is waived for purposes of appeal unless preserved by timely and specific motions for directed verdict in the trial court. Over five years ago, when faced with the argument that the rule had been vitiated by inconsistent application, the supreme court acknowledged that discussing the merits of a sufficiency argument despite an appellant’s failure to preserve the issue constitutes a “deviation” from the rule. See Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992). Since that time, Collins has been cited for the proposition that, when a criminal defendant fails to preserve a sufficiency issue for appeal, the appellate court “cannot consider” the question on its merits. See Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994); Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Bealer v. State, 49 Ark. App. 119, 897 S.W.2d 577 (1995). See also Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997) (appellant’s failure to make a specific directed-verdict motion “precludes our review” of the sufficiency issue); Dulaney v. State, 321 Ark. 30, 937 S.W.2d 162 (1997) (upon appellant’s failure to make timely and specific directed-verdict motions, the supreme court is “barred from addressing” the issue).
I respectfully concur.