Moore v. State

Stacey MOORE v. STATE of Arkansas

CA CR 96-865                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & II
                 Opinion delivered June 25, 1997


1.   Evidence -- directed-verdict motion is challenge to
     sufficiency of evidence -- substantial evidence discussed. -- 
     A motion for directed verdict is a challenge to the
     sufficiency of the evidence; the test for determining the
     sufficiency of the evidence is whether the verdict is
     supported by substantial evidence, direct or circumstantial;
     substantial evidence is evidence forceful enough to compel a
     conclusion one way or the other beyond suspicion or
     conjecture; in determining the sufficiency of the evidence the
     appellate court reviews the proof in the light most favorable
     to the appellee, considering only that evidence which tends to
     support the verdict; the fact that evidence is circumstantial
     does not render it insubstantial.

2.   Evidence -- intent seldom provable by direct evidence --
     presumption exists that person intends natural and probable
     consequences of his acts. -- Intent or state of mind is seldom
     capable of proof by direct evidence and must usually be
     inferred from the circumstances surrounding the crime; the
     jury is allowed to draw upon its own common knowledge and
     experience to infer intent from the circumstances; because of
     the difficulty in ascertaining a person's intent, a
     presumption exists that a person intends the natural and
     probable consequences of his acts.      

3.   Evidence -- appellant's conviction supported by substantial
     evidence -- jury could have inferred that appellant's actions
     were done with purpose of causing serious physical injury. --
     Viewing the evidence in the light most favorable to the State,
     the appellate court held that there was substantial evidence
     to support the appellant's conviction; the State offered
     testimony which placed appellant at the scene of the crime
     shooting a gun in the direction of the victim; the victim was
     seen falling to the ground immediately after appellant fired
     his gun; a gun, whose size bullet fit the victim's wound, was
     recovered by appellant's brother after he had taken him to the
     bus station; testimony regarding shots being fired by the
     victim's cousin involved a .45 caliber gun to which both the
     investigating officer and the coroner testified could not have
     caused the victim's fatal wound; the State also presented
     sufficient evidence from which the jury could have inferred
     that appellant's actions were done with the purpose of causing
     serious physical injury to another person which resulted in
     the death of the victim.

4.   Evidence -- reconciling conflicts in testimony and weighing
     evidence are exclusive province of jury -- jury allowed to
     draw upon common knowledge and experience. -- Reconciling
     conflicts in the testimony and weighing evidence are matters
     within the exclusive province of the jury, and the jury's
     conclusion on credibility is binding on the appellate court;
     jurors are allowed to draw upon their common knowledge and
     experience in reaching a verdict from the facts directly
     proved. 

5.   Evidence -- admission of lay-opinion testimony not reversed
     absent abuse of discretion. --  A trial judge's decision to
     allow lay-opinion testimony under Rule 701 will not be
     reversed absent an abuse of discretion. 

6.   Evidence -- Ark. R. Evid. 701 -- intent and requirements of. -
     - Ark. R. Evid. 701 seeks to balance the need for relevant
     evidence against the danger of admitting unreliable testimony;
     in order to satisfy the first requirement of Rule 701, the
     testimony must initially pass the personal-knowledge test of
     A.R.E. Rule 602; but even if the witness does have the
     requisite personal knowledge, any inferences or opinions he
     expresses must thereafter pass the rational-connection and
     "helpful" tests of Rule 701; the rational-connection test
     means only that the opinion or inference is one which a normal
     person would form on the basis of the observed facts; he may
     express the opinion or inference rather than the underlying
     observations if the expression would be helpful to a clear
     understanding of his testimony or the determination of a fact
     in issue; if, however, an opinion without the underlying facts
     would be misleading, then an objection may be properly
     sustained. 

7.   Evidence -- testimony of lay witnesses -- when permitted. --
     Lay witnesses may be permitted to give their opinion as to the
     cause of death or other physical condition if the witness is
     qualified by experience and observation with regard to the
     subject matter.

8.   Evidence -- lay-opinion testimony -- coroner's testimony
     properly allowed -- no abuse of discretion found. -- The
     appellate court could not say that the trial court abused its
     discretion in allowing the coroner's lay-opinion testimony
     regarding his process of matching bullets to the victim's
     wound, subject to cross-examination; the coroner's testimony
     was not inconsistent with the testimony of the police officer,
     which had previously been admitted without objection.  
     

     Appeal from Dallas Circuit Court; John Graves, Judge;
affirmed.
     William M. Howard, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     John E. Jennings, Judge.
     On July 30, 1995, Robyn Ross Owens was found shot to death at
the Elkþs Club in Fordyce, Arkansas.  Appellant, Stacey Moore, was
subsequently charged with first-degree murder in connection with
Owensþs death.  Moore was also charged with being a felon in
possession of a firearm.   Moore was found guilty by a Dallas
County jury of the lesser included offense of second-degree murder
and of felon in possession of a firearm and was sentenced to serve
twenty-eight years in the Arkansas Department of Correction.  On
appeal, Moore argues two points for reversal: (1) the trial court
erred in denying appellantþs motion for directed verdict; and (2)
the trial court erred in allowing the coroner to testify with
regard to the bullet wound found on the victim.  We find no error
and affirm.
     A motion for directed verdict is a challenge to the
sufficiency of the evidence.  Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).  The test for determining the sufficiency of the
evidence is whether the verdict is supported by substantial
evidence, direct or circumstantial.  Cooper v. State, 324 Ark. 135,
919 S.W.2d 205 (1996).  Substantial evidence is evidence forceful
enough to compel a conclusion one way or the other beyond suspicion
or conjecture.  Lukach v. State, 310 Ark. 119, 835 S.W.2d 852
(1992).  In determining the sufficiency of the evidence we review
the proof in the light most favorable to the appellee, considering
only that evidence which tends to support the verdict.  Brown v.
State, 309 Ark. 503, 832 S.W.2d 477 (1992).  The fact that evidence
is circumstantial does not render it insubstantial.  Payne v.
State, 21 Ark. App. 243, 731 S.W.2d 235 (1997).  
     In addition, intent or state of mind is seldom capable of
proof by direct evidence and must usually be inferred from the
circumstances surrounding the crime.  Williams v. State, 325 Ark.
432, 930 S.W.2d 297 (1996).  The jury is allowed to draw upon its
own common knowledge and experience to infer intent from the
circumstances.  Tiller v. State, 42 Ark. App. 64, 854 S.W.2d 730
(1993).  Because of the difficulty in ascertaining a personþs
intent, a presumption exists that a person intends the natural and
probable consequences of his acts.  Brown v. State, 54 Ark. App.
44, 924 S.W.2d 251 (1996).     
     In the case at bar, the State offered testimony from thirteen
witnesses.  In particular, Ms. Jonell Jenkins, the victimþs sister,
testified that she had been with her sister all day on July 29,
1995, and during the early morning hours of July 30, 1995. They had
just completed a two-week course to become certified nurseþs
assistants and were celebrating with two other friends, Melody and
Stephanie Harris.  Jenkins testified that after visiting their
cousin, Chris Ross, at his house, they decided to go to the Elkþs
Lodge.  At the Lodge, Jenkins testified that Robyn, Melody,
Stephanie, and herself, got a table, sat down, and then danced. 
Jenkins stated that after Chris Ross, who was also at the Lodge at
that time, got into an altercation with Patrick Crain, they decided
to leave the Lodge.  
     Jenkins testified that as they were driving away, they changed
their minds, and decided to go back to the Lodge to see  their
cousin, Ross.  When they arrived back at the Lodge, Jenkins stated
that appellant and another man named þPopþ were in front of the
club arguing.  According to Jenkins, Robyn got out of the car and
went back into the Lodge.  Jenkins testified that appellant was
still outside with Pop arguing when she noticed that he had a gun. 
She stated that appellant started to shoot.  She did not notice
Robyn the first time appellant was shooting; however, she testified
that the second time she saw appellant shooting, Robyn was walking
back toward the car from the Lodge.  Jenkins stated that at that
particular time she saw Robyn fall to the ground and then saw
appellant jumping the fence.  She stated that she then ran over to
Robyn and called others to help her.
     Jenkins stated that during this time people were fighting and
some more shooting had started around them.  Jenkins testified that
she, along with Chris Ross and Melody and Stephanie Harris, put her
sister in the car and took her to the hospital.  Jenkins also
testified at trial that she did not remember anyone else shooting
while appellant was shooting, which was at the time when she saw
her sister fall on the ground.  In addition to Jenkinsþs testimony,
several other State witnesses testified that they saw appellant at
the Elk Lodge when the incident occurred and saw him shooting a
gun.  The witnesses also testified that gunshots were coming from
different directions and numerous people were fighting.  One
witness, Larry Buckley, testified that he was at the Lodge around
two-thirty in the morning of July 30, 1995, and saw appellant
shooting.  Buckley also stated that he saw Ross at the Lodge with
a gun.  Patrick Strickland testified that he went to the Lodge with
Ross on the evening of July 29, 1995.  He stated that Ross had a
.45 caliber gun and tried to shoot it in the air but the gun was
jammed and would not shoot.  Strickland testified that he thought
Ross had gotten the gun unjammed but that he did not see him shoot
it.  Strickland also testified that he heard four or five shots but
could not tell if these shots came from the same gun.
     Chris Ross also testified at trial.  Ross stated that he shot
the gun in the air in an attempt to stop the fighting at the club. 
He claimed to only have shot the gun once.  Ross further testified
that he saw appellant shoot a gun first in the air and then in the
crowd.  Travis Bell, appellantþs brother, testified that between
4:00 and 5:00 oþclock in the morning of July 30, 1995, appellant
and his mother came by his house.  Bell stated that appellantþs
mother asked him if he could take appellant to the bus station
because she was þtired of fooling with him.þ  Bell testified that
he drove appellant to the bus station in Little Rock.  Bell claimed
that after driving appellant to the bus station he found a pistol
under the passenger seat of his car.  Bell stated that he had not
seen this pistol prior to that time and thereafter turned it over
to the police.
     Rick McKelvey, an investigator with the State Police,
testified that he was contacted on July 30, 1995, regarding a
shooting in Fordyce.  He conducted a crime scene search and
examined the victimþs body at Dallas County Hospital.  McKelvey
stated that, in the course of his investigation, he obtained a
weapon from Bell.  McKelvey identified the weapon as a nine-
millimeter pistol.  McKelvey also testified that while
interrogating appellant, appellant stated that he was at the Elkþs
Lodge on the evening in question and that he was in possession of
a small nine-millimeter pistol belonging to his cousin.  McKelvey
further stated that appellant told him he fired the gun once into
the air.  On cross-examination, when asked about the type of bullet
which caused the victimþs wound, McKelvey testified that it could
not have been caused by a .45 bullet, and was smaller than a .357
or a .38 bullet.  However, McKelvey could not identify the exact
size bullet which caused the wound below that range, other than to
state that a .45 could not have caused such a wound. 
     Charles Teppenpaw, the Dallas County Coroner, testified at
trial regarding his examination of the victim.  Teppenpaw, at the
time of the trial, had been a coroner for approximately fifty years
and had recently been appointed forensic medical examiner. 
Teppenpaw testified that appellant died of a gunshot wound which
entered her back on the right side and exited the left chest. 
Teppenpaw stated that he concentrated his examination on the
entrance and exit wounds and made a determination of what type of
bullet may have caused the wound.  Over appellantþs objection,
Teppenpaw testified as to the manner in which he made such
determination.  He stated that he carried sample bullets such as
.22s, .38s, .45s, and nine-millimeters and matched those to the
wound on the victim.  Teppenpaw testified that he tried to match
the .38, the .32, the .45, and the nine-millimeter bullet to the
victimþs wound.  He stated that, of these bullets, the only one
that he could identify to fit the victimþs wound was the nine-
millimeter bullet.
     Viewing the evidence in the light most favorable to the State,
as we must, we hold that in the case at bar there was substantial
evidence to support appellantþs conviction.  The State offered
testimony which placed appellant at the scene of the crime shooting
a gun in the direction of the victim.  The victim was seen falling
to the ground immediately after appellant fired his gun.  A gun,
whose size bullet fit the victimþs wound, was recovered by
appellantþs brother after he had taken him to the bus station.  In
addition, testimony regarding shots being fired by Ross, the
victimþs cousin, involved a .45 caliber gun to which both the
investigating officer and the coroner testified could not have
caused the victimþs fatal wound.  The State also presented
sufficient evidence in this case from which the jury could infer
that appellantþs actions were done with the purpose of causing
serious physical injury to another person which resulted in the
death of Robyn Owens. 
     Furthermore, reconciling conflicts in the testimony and
weighing evidence are matters within the exclusive province of the
jury, and the juryþs conclusion on credibility is binding on this
court.  Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). 
Jurors are allowed to draw upon their common knowledge and
experience in reaching a verdict from the facts directly proved. 
Ashley, supra.  It has also been held that the action of fleeing
from the scene of the crime is relevant to the issue of guilt. 
Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984).     
     Appellantþs second argument on appeal involves the coronerþs
testimony.  Specifically, appellant argues that it was error for
the judge to allow the coroner to testify regarding his process of
matching bullets to the victimþs wound and stating as a result that
a nine-millimeter bullet matched the victim's wound.  The coroner
was not qualified as an expert in this case.  His testimony,
therefore, falls under Rule 701 of the Arkansas Rules of Evidence. 
Rule 701 states that:
          If the witness is not testifying as an expert,
          his testimony in the form of opinions or
          inferences is limited to those opinions or
          inferences which are

          (1) Rationally based on the perception of the
          witness; and
          (2) Helpful to a clear understanding of his
          testimony or the determination of a fact
          issue.

Ark. R. Evid. 701 (1997).  A trial judgeþs decision to allow lay-
opinion testimony under Rule 701 will not be reversed absent an
abuse of discretion.  Bridges v. State, 327 Ark. 392, 327 S.W.2d 392 (1997).  
     In Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674
(1990), the supreme court, citing Professor Weinstein, stated the
following applicable principles with regard to Rule 701:
          Rule 701 "seeks to balance the need for
          relevant evidence against the danger of
          admitting unreliable testimony.  It recognizes
          that necessity and expedience may dictate
          receiving opinion evidence, but that a factual
          account insofar as feasible may further the
          values of the adversary system. . . . `The
          opinion rule today is not a rule against
          opinions but a rule conditionally favoring
          them.'". . . 

          [I]n order to satisfy the first requirement of
          Rule 701, the testimony must initially pass
          the personal knowledge test of A.R.E. Rule
          602.  But, even if the witness does have the
          requisite personal knowledge, any inferences
          or opinions he expresses must thereafter pass
          the rational connection and þhelpfulþ tests of
          Rule 701.  "The rational connection test means
          only that the opinion or inference is one
          which a normal person would form on the basis
          of the observed facts.  He may express the
          opinion or inference rather than the
          underlying observations if the expression
          would be `helpful to a clear understanding of
          his testimony or the determination of a fact
          in issue.'"  If, however, an opinion without
          the underlying facts would be misleading, then
          an objection may be properly sustained. 

Carton, 303 Ark. at 571-72, 798 S.W.2d  at 675 (quoting 3 

Weinsteinþs Evidence  701[02] at 701-13(1987)).  

     The court has also held that lay witnesses may be permitted to
give their opinion as to the cause of death or other physical
condition if the witness is qualified by experience and observation
with regard to the subject matter.  Russell v. State, 306 Ark. 436,
815 S.W.2d 929 (1991).  In Russell, the court held that the opinion
testimony of an emergency medical technician concerning the
instrument which caused the victimþs wounds was properly admitted
pursuant to Rule 701.  The medical technician testified that in his
opinion the wounds were caused by a square-headed or Phillips head
screwdriver.  Appellant argued that because the medical technician
lacked specialized training and expertise, he should not have been
allowed to testify regarding the cause of the wounds.  The court
held that the testimony was based upon the technicianþs personal
knowledge, having previously observed wounds made by screwdrivers,
and based upon the observation of the victimþs wounds.  In
addition, the technicianþs opinion was helpful to the determination
of a fact in issue, the cause of the victimþs wounds.  Russell,
supra.
     In Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996), the
court held that the opinion testimony of a lay witness in
accordance with Rule 701 was proper.  The crime lab in Moore had
been unable to identify or eliminate the shoe print found in the
victimþs bedroom as having been made by appellantþs shoe due to the
lack of sufficient individual markings, but noted that the shoe-
sole pattern of the print was consistent with the pattern on
appellantþs shoe.  The police investigator, during direct
examination, however, testified that in his opinion the sole of
appellantþs athletic shoe matched the shoe print found on the
center of the victimþs bedroom floor.  The court held that the
trial court did not abuse its discretion in allowing the
investigatorþs testimony because, even though the investigator was
not an expert in that field, he had some experience in that area
and he was clearly testifying that the patterns matched, which was
not inconsistent with the crime lab report.  Moore, supra.
     In the case at bar, we cannot say that the trial court abused
its discretion in allowing the coroner's lay-opinion testimony,
subject to cross-examination.  The situation is essentially
analogous to that in Russell and, as in Moore, the coroner's
testimony was not inconsistent with the testimony of 
Officer McKelvey, which had previously been admitted without
objection.  
     Affirmed.
     Bird, Rogers, and Stroud, JJ., agree.
     Neal and Crabtree, JJ., dissent.


                  Olly Neal, Judge, dissenting.


     Because the majority has chosen to ignore the patent
unfairness of convicting an accused person based on wholly
unreliable and unsubstantiated opinion testimony, I must dissent.
The inherent prejudice in this case is obvious.  No witness saw
appellant shoot the victim.  No evidence was introduced tending to
connect the weapon appellant admitted he fired into the air and the
wound that caused the victimþs death.  There was evidence that
other weapons were fired around the time the victim was shot. 
Noticeably absent are ballistic evidence or other competent
forensic evidence connecting the appellant and his gun to the
crime.
     Although the trial court based its admissibility ruling on the
fact that the coroner was never qualified as an expert, he noted
the coronerþs fifty years of experience when he decided to allow
him to testify.  The supreme court has recognized that in some
instances, the rational basis for qualifying a lay opinion as
reliable is little different from the evidence requisite to showing
that the witness is an expert in his field of knowledge.  See
Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), and Gruzen v.
State, 276 Ark. 149, 634 S.W.2d 92 (1982).  It follows that it is
not acceptable to þgloss-overþ the reliability requirement by using
Ark. R. Evid. 701 to admit unreliable expert testimony as a lay
opinion.  See Williams v. Southwestern Bell Tel. Co., 319 Ark 626,
893 S.W.2d 770 (1995).
     As the majority writes, quoting from Carton v. Missouri Pac.
R.R., 303 Ark. 568, 798 S.W.2d 674 (1990), in addition to
establishing the reliability of a lay opinion, the State must show
that the opinion would be helpful to the trier of fact in
understanding the witness's testimony.  The lay witness must be
qualified by experience and observation as to the subject matter. 
Tallant v. State, 42 Ark. App. 150, 865 S.W.2d 24 (1993).  And the
testimony must not be overly prejudicial.  Ark. R. Evid. 403.
     In Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991), the
supreme court noted two limitations on lay opinions: (1) the
witness must have firsthand knowledge, and (2) the testimony must
help resolve some issue in the case.  If attempts are made to
introduce meaningless assertions which amount to little more than
þchoosing up sides,þ exclusion is called for by the rule.  Felty
(citing Advisory Committeeþs Notes to Federal Rule 701).  The rule
was deciphered more clearly in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).  There, where the issue was whether the trial
court erred in refusing to admit the results of DNA testing where
the reliability of the testing process had not been established,
the court adopted the þrelevancy standard.þ  The relevancy approach
requires that the trial court conduct a preliminary inquiry which
must focus on (1) the reliability of the novel process used to
generate the evidence, (2) the possibility that admitting the
evidence would overwhelm, confuse or mislead the jury, and (3) the
connection between the novel process evidence to be offered and the
disputed factual issues in the particular case.  Id. at 186. 
Although Prater involved the admissibility of expert testimony, its
rule should be applied in the present case, because the standard
would be essentially the same for establishing the reliability of
the coronerþs testimony if he were qualified as an expert.  See
Gruzen, supra. 
     Here, the coroner testified that he determined that the victim
had been killed by a nine-millimeter bullet by a forensically novel
process of placing several different-sized bullets in the fatal
wound and eliminating all but one, based on the way the bullet fit
the hole in the victimþs body. It cannot be argued that this
process has ever been recognized as an accurate means of
determining the instrumentality of death, and it in no way relates
to the commonly used method of ballistic examinations.  The trial
court cited only the coronerþs fifty years' experience in
determining the cause of death, and made no inquiry as to whether
the coroner had the ability to properly explain the ramifications
of his þfindingsþ or whether he could relate them to the disputed
factual issue of whether appellant fired the bullet that killed the
decedent.  Because there was no evidence that any of the shooters
at the scene except appellant possessed a nine-millimeter, the
obvious conclusion that would be drawn from the coronerþs testimony
in this particular case is that the appellant did, in fact, fire
the fatal shot.  The coronerþs opinion amounted to þlittle more
than choosing up sides,þ and therefore should have been excluded.
     Some cases that further illustrate the error of the courtþs
ruling are Houston v. State, 321 Ark. 598, 906 S.W.2d 286 (1995); 
Young v. State, 321 Ark. 225, 871 S.W.2d 373 (1994); Palmer v.
State, 315 Ark. 696, 870 S.W.2d 385 (1994); and Brenk v. State, 311
Ark. 579, 847 S.W.2d 1 (1993).  In all of these cases, the court
dealt with the issue of whether the results of luminol testing, an
unrecognized scientific test for the presence of blood, was
admitted in error.  The Supreme Court concluded in each that,
because the procedure did not distinguish between human and other
type blood, without additional test to confirm that the blood found
was human blood, admitting the results were per se misleading and
overly prejudicial.  In Houston in particular, the supreme court
noted that luminol testing can return a þfalse positive,þ and for
that reason, declared the results irrelevant without "additional
factors that relate the evidence to the crime."  In the present
case, the exact calibers of the weapons present at the murder scene
were never established, but there was testimony that in addition to
the nine millimeter, a .38, a .357 and a .45 were fired.  It is
widely recognized among firearm experts that the .38, .357, .380
and the .9 millimeter are all in the same class of weapons and the
cartridges are substantially the same in diameter.  In fact, the
.380 and the .9 millimeter are exactly the same diameter.  Because
the coronerþs þballistic testingþ consisted only of inserting a
bullet into the wound to determine the nature of the projectile
that caused it, the similarity between bullets could just as easily
result in a þfalse positive.þ  Without further testing to confirm
his results, the possibility that the jury could have been misled
by the coronerþs testimony is infinite.  See also Ferrell v. State,
supra (Ark. Sup. Ct. recognized that difference between certain
handgun barrel diameters are so slight that the difference can not
be discerned by casual observation).
     This case is somewhat different than Russell v. State 306 Ark.
436, 815 S.W.2d 929 (1991), upon which the majority relies for its
decision.  There, although, based upon his experience, an emergency
medical technician was allowed to give his opinion that the
victimþs wounds were caused by a screwdriver, the opinion was a
general one with less potential to mislead the jury.  He was not
allowed to speculate as to what type screwdriver caused the wound
and there was eyewitness testimony that the appellant had in fact
stabbed the victim with a screwdriver.  In the case at bar, the
coroner was qualified, to give his opinion that the decedentþs
wound was caused by a bullet, but he had no experience in
ballistics that would provide an ample basis for his opinion that
the bullet was of a particular caliber.  Also, unlike the Russell
case, there was no eyewitness testimony to corroborate the
coronerþs conclusion.
     In summation, the trial courtþs decision to allow the coroner
to give an opinion that the victimþs wound was caused by a nine
millimeter bullet was erroneous because (1) the State failed to
establish that the test procedure was reliable; (2) the testimony
was overly prejudicial; (3) the coronerþs testimony was misleading;
and (4) there was no evidence tending to link the coronerþs
þfindingsþ to appellant, and it was therefore irrelevant.  See also
Middleton v. State, 29 Ark. App. 83, 780 S.W.2d 581 (1989)
(officerþs testimony fixing appellantþs alcohol level at specific
level based on physical test held inadmissable and manifestly
prejudicial).
     I am authorized to state that Judge Crabtree joins in this
dissent.