Thomas Kidwell v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-787

February 23, 2005

THOMAS KIDWELL

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM POLK COUNTY CIRCUIT COURT

[NO. CR 2003-195]

HONORABLE JERRY WAYNE LOONEY, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellant Thomas Kidwell was charged with the offense of fleeing, a Class D felony, and driving while intoxicated, an unclassified misdemeanor. A jury found Kidwell guilty of driving while intoxicated and the lesser-included offense of fleeing, a Class A misdemeanor. The trial court sentenced him to twelve months' imprisonment in the Polk County Jail on each count to run concurrently. Kidwell appeals his conviction on two grounds: (1) that the trial court erred in denying his motion for mistrial and (2) that there was insufficient evidence to support his fleeing conviction.

On December 21, 2003, at approximately 12:30 a.m., Deputies Godfrey and Peeples of the Polk County Sheriff's Department were traveling northbound on Highway 71 in Hatfield. After Deputy Godfrey saw a 1987 Pontiac 6000 run a stop sign, he decided to observe the car. The car crossed Highway 71. Deputy Godfrey turned off Highway 71 behind the car. The car was traveling over the speed limit and made an erratic right turn, meaning the car had to cross both lanes of the road to get back into its own lane. Deputy Godfrey tried to gain speed on the car, and the car ran another stop sign. Another car that was traveling on this road had to stop to keep from hitting the Pontiac.

Deputy Godfrey turned on his blue lights and sirens to initiate a traffic stop. The driver, Kidwell, did not stop. The car made another erratic turn onto a county road. Deputy Godfrey notified dispatch that he was in pursuit of a car. After the dispatch notification, the cars traveled for approximately one mile. According to the testimony of Deputy Godfrey, Kidwell at times was traveling at a top speed of approximately seventy miles per hour. The car began to slide off the road and narrowly missed hitting two telephone poles. The car traveled fifty feet through a ditch while running over fifty to sixty feet of fence and knocking fence posts in the air. The car came to an abrupt stop after it hit a corner fence post. Kidwell had two female passengers in the car. Deputy Godfrey arrested Kidwell immediately upon his exit from the car. At the jail, Kidwell failed two field-sobriety tests, and his blood-alcohol concentration was .09.

Kidwell argues that there was insufficient evidence to support his fleeing conviction.1 Kidwell does not challenge the sufficiency of the evidence with respect to his conviction for driving while intoxicated. The trial court denied Kidwell's timely motions for a directed verdict.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). In reviewing a challenge to the sufficiency of the evidence, this court will view evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Simmons v. State, ___ Ark. App. ___, ___ S.W.3d. ___ (Dec. 8, 2004). Substantial evidence must be forceful enough to compel a conclusion beyond suspicion and conjecture. Williams, supra. Circumstantial evidence may constitute substantial evidence to support a conviction. E.g., Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).

"If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance." Ark. Code Ann. § 5-54-125(a) (Repl. 1997). Arkansas Code Annotated section 5-2-202(1) (Repl. 1997) provides that "[a] person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result."

We have considered the evidence that supports Kidwell's conviction. Deputy Godfrey testified that the pursuit of Kidwell lasted no more than two minutes. Deputy Godfrey identified Kidwell as the person who did not stop when he turned on his blue lights and siren to initiate a traffic stop. Kidwell traveled at high rates of speed as law enforcement officers pursued him. Deputy Godfrey testified that Kidwell met a car on the highway while he was driving erratically. There were two passengers in Kidwell's car. Kidwell admitted that he ran two stop signs and that he had outstanding arrest warrants at the time of the pursuit. Deputy Godfrey testified about the brightness of his lights and the loudness of his sirens, and he stated that he did not believe that Kidwell did not see him during the pursuit. The pursuit ended when Kidwell ran his car into a ditch from a county road. This amounts to substantial evidence that, in an effort to avoid being arrested by law enforcement officers, Kidwell purposely drove his car in a manner that created a substantial danger of death or serious physical injury to other persons and manifested an extreme indifference to the value of human life. See Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002) (holding that there was sufficient evidence to convict appellant of fleeing when there was testimony that appellant ran a yield sign, narrowly escaped a collision, passed cars in a no-passing zone, drove on the wrong side of the street over a "blind" hill, ran two stop signs, lost control of his car when attempting to negotiate another turn, and as a result, slid into a chain-link fence).

Kidwell denied that he fled from the officers, but the jury was not required to believe his self-serving testimony. See Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). The jury was free to believe all or part of any witness's testimony and could resolve questions of conflicting testimony and inconsistent evidence by choosing to believe the State's accounts of the facts rather than Kidwell's. See Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Viewing the evidence in the light most favorable to the State and considering evidence that supports Kidwell's conviction, substantial evidence exists to convict Kidwell of fleeing.

A trial court has broad 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. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003). A mistrial is a drastic remedy and should be declared when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when it cannot be cured by an instruction. Id, 118 S.W.3d 542.

At trial, the prosecutor asked the deputy to describe Kidwell's behavior and mental state during Kidwell's transportation to the police station. The deputy replied, "He was visibly upset, he was crying. He stated that he was sorry ... that he'd run and he asked about the passengers in the car." Kidwell's attorney immediately objected to the deputy's testimony regarding Kidwell's statements to the deputy. Kidwell's attorney stated that he did not know about these statements and did not have an opportunity to file a motion to suppress the statements, and he asked the trial court to strike the statements from the record. The prosecutor stated that he did not know that the deputy was going to mention any statements made by Kidwell and that he found out about the statements contemporaneously with Kidwell's attorney. The judge, prosecutor, and Kidwell's attorney had an extensive conversation on how to handle the fact that the jury heard these statements. Kidwell's attorney made a motion for a mistrial. The trial court denied the motion because the statements "were not prejudicial at this point and ... [no] damage was done." The judge also said, "I think probably the wiser thing is simply to ignore it and not make a big deal to the jury about it and go on from here and let it go at that." At the end of the State's case in chief and the close of all the evidence, the trial court also denied Kidwell's renewed motions for mistrial.

For his argument, Kidwell relies on Arkansas Rule of Criminal Procedure 17.1, which states that the prosecuting attorney should disclose to the defense counsel, upon proper request, the substance of any oral statements made by the defendant. Ark. R. Crim. P. 17.1(a)(ii). The trial judge stated that the best thing to do would be to ignore the deputy's statement so that the jury would not focus their attention on the statement. Kidwell never requested a curative instruction after the trial court denied his motion for mistrial. It is a defendant's duty to request a curative instruction, and an appellate court will not determine that the trial court's decision to deny a mistrial motion was an abuse of discretion where an admonition to the jury could have cured the situation but no such admonition was requested. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). The trial judge agreed with Kidwell, ruled that the statement was inadmissible, and offered to tell the jury to disregard the testimony. Kidwell's attorney never requested a curative instruction before or after his motion for a mistrial. An admonition to the jury could have cured the situation, but it was Kidwell's duty to ask for it. Kidwell never followed up on his motion to strike the statements. Accordingly, the trial court did not abuse its discretion in denying Kidwell's motion for mistrial.

Affirmed.

Robbins and Griffen, JJ., agree.

1 Because of double jeopardy considerations, we are required to address challenges to the sufficiency of evidence before considering any argument asserting trial error. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 359 (2004).