Springston v. State,

Richard SPRINGSTON v. STATE of Arkansas

CA CR 97-539                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
               Opinion delivered February 25, 1998


1.   Evidence -- sufficiency of -- factors on review -- In
     reviewing the sufficiency of the evidence on appeal, the
     appellate court views the evidence in the light most favorable
     to the State and affirms if the verdict is supported by
     substantial evidence; substantial evidence is evidence which
     is of sufficient force and character that it will, with
     reasonable certainty, compel a conclusion one way or the other
     without resort to speculation or conjecture; the appellate
     court need consider only testimony that supports the verdict
     of guilt. 

2.   Automobiles -- DWI -- circumstantial evidence may be
     sufficient to prove person in actual physical control of
     vehicle. -- Ark. Code Ann.  5-65-103(a) does not require law
     enforcement officers to actually witness an intoxicated person
     driving or exercising control of a vehicle; the State may
     prove by circumstantial evidence that a person operated or was
     in actual physical control of a vehicle; circumstantial
     evidence may constitute substantial evidence when every other
     reasonable hypothesis consistent with innocence is excluded. 

3.   Jury -- not required to believe accused's version of events. -
     - A jury is not required to believe the accused's version of
     events because he is the person most interested in the outcome
     of the trial; a jury may consider and give weight to any false
     and improbable statements made by an accused in explaining
     suspicious circumstances.

4.   Automobiles -- DWI -- verdict supported by substantial
     evidence. -- Where appellant was discovered walking away from
     a one-vehicle accident involving his own truck for which he
     possessed the keys in his pocket; where there was testimony
     that appellant had been driving his truck not long before his
     encounter with the police; and where the jury was entitled to
     disregard appellant's story that someone else had been driving
     the truck, particularly in light of the deputy's testimony
     concerning his efforts to locate that person, who was nowhere
     to be found, the appellate court found that there was
     sufficient evidence from which the jury could properly infer
     that appellant was operating the vehicle at the time the
     accident occurred;  

5.   Evidence -- balancing of probative value against prejudice --
     left to sound discretion of trial court. -- The balancing of
     probative value against prejudice is a matter left to the
     sound discretion of the trial court, and its decision will not
     be reversed absent a showing of manifest abuse; the prejudice
     referred to in Ark. R. Evid. 403 denotes the effect of the
     evidence on the jury, not the party opposed to it.

6.   Evidence -- DWI -- tape provided evidence of essential element
     of case -- no abuse of discretion found in admittance. -- 
     Since intoxication was an essential element DWI, evidence that
     showed the demeanor of the accused at or near the time of the
     offense was highly relevant; the fact that the taped evidence
     may have also portrayed the appellant in an unfavorable light
     did not constitute the kind of unfair prejudice that would
     require its exclusion at trial; appellant's claim of prejudice
     was weakened by the fact that his own counsel made references
     to the tape as being favorable to the defense in arguments
     before the court; no abuse of discretion was found; the
     conviction for DWI was affirmed.


     Appeal from Greene Circuit Court; David Goodson, Judge;
affirmed.
     Chet Dunlap, for appellant.

     Winston Bryant, Att'y Gen., by:  Mac Golden, Asst. Att'y Gen.,
for appellee.

     Judith Rogers, Judge.
     Richard Springston brings this appeal from his first-offense
conviction of driving while intoxicated for which he was sentenced
to fourteen days in jail, fined $500, and his driver's license was
suspended for thirty days.  For reversal, he contends that there is
no substantial evidence to support the jury's verdict of guilt and
that the trial court erred in allowing the admission of a videotape
into evidence.  We find no merit in the issues raised and affirm.
     First, appellant challenges the sufficiency of the evidence. 
Arkansas Code Annotated  5-65-103(a) (Repl. 1993) provides that it
is unlawful for any person who is intoxicated to operate or be in
actual physical control of a motor vehicle.  
     In reviewing the sufficiency of the evidence on appeal, we
view the evidence in the light most favorable to the State and
affirm if the verdict is supported by substantial evidence.  Brown
v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996).  Substantial
evidence is evidence which is of sufficient force and character
that it will, with reasonable certainty, compel a conclusion one
way or the other without resort to speculation or conjecture. 
Christian v. State, 54 Ark. App. 191, 925 S.W.2d 428 (1996).  We
need consider only that testimony that supports the verdict of
guilt.  Ricks v. State, 316 Ark. 604, 873 S.W.2d 808 (1994).
     Greene County Deputy John Purcell testified that he was
employed by the Arkansas State Police on May 21, 1995, and that at
around 3:10 p.m. he was called upon to investigate an accident at
the intersection of Highways 351 and 358.  About three-quarters of
a mile away from the intersection, he observed a man, the 
appellant, attempting to walk on the shoulder of the road.  Deputy
Purcell testified that appellant "wasn't doing too good," and that
he was staggering, stumbling and "lurching around," meaning that  
he was walking sideways as if he might fall onto the roadway. 
Purcell stopped to determine what the problem might be, and as he
came close to the appellant, he smelled the strong odor of an
alcoholic beverage about the appellant's person.  At around 3:20
p.m., he placed appellant under arrest for public intoxication,
handcuffed him, read him his rights, and placed him in the patrol
car.  Purcell then proceeded to the intersection where he found a
pick-up truck nosed off into a ditch.  He said that it crossed his
mind that appellant might have been the driver of the truck, so he
ran a check on the vehicle's license plate and learned that the
truck belonged to the appellant.  Keys found in appellant's pocket
fit the ignition of the truck.  
     Later, Purcell took appellant to the Paragould Police
Department for a breathalyzer test.  Purcell testified that
appellant was obnoxious, a bit threatening, and uncooperative.  He
said that appellant was firm in his conviction that he would take
a test for public intoxication, but not for DWI.
     On cross-examination, Purcell further testified that appellant
had told him that a man named Phil Vincent had been driving the
truck at the time of the accident, and that Vincent had climbed a
fence and had walked in the other direction across a field. 
Purcell said that he made his way up and down the road looking for
this person.  He checked with passers-by to see if they had met
anyone on foot and spoke with a farmer who had not seen anyone in
his field.  He said that his investigation produced no evidence,
other than appellant's word, that Phil Vincent had been with
appellant in the truck.
     Dewayne Johnson of the Paragould Police Department testified
that appellant was brought to him for a breathalyzer test.  He said
that appellant was uncooperative and refused to acknowledge that he
understood his rights under the implied consent law.  Johnson
testified that appellant kept stressing the point that he was not
driving a vehicle and thus would not state that he understood the
obligation to take the test.  He said that appellant told him that
he would take a test if charged with public intoxication, but not
if the charge was DWI.  A videotape of these discussions was
introduced and played for the jury over the appellant's objection.
     The State also presented the testimony of Kenneth Wilburn,
appellant's neighbor.  He testified that he saw appellant and
another man get into separate vehicles that afternoon at around
2:00 p.m.  He said that they left in a hurry, that the wheels of
both vehicles were spinning, and that they drove erratically up a
hill.  Wilburn testified that this was not too unusual because
there was loose gravel on the hill but that he had, nevertheless,
been concerned.  He later noticed that several young trees to the
side of the road had been run over.
     Appellant's argument is that the State failed to prove that he
either operated or was in actual physical control of a vehicle.  He
relies chiefly on our decision in Cook v. State, 37 Ark. App. 27,
823 S.W.2d 916 (1992).  There, the appellant was one of a group of
individuals associated with a vehicle that had struck a tree.  The
officer had not seen the appellant driving the vehicle, and we
concluded that the evidence was not sufficient to sustain a finding
that appellant operated or was in physical control of the vehicle. 
The State maintains that the facts of this case compare more
favorably with those found in our decision in Neble v. State, 26
Ark. App. 163, 762 S.W.2d 393 (1988).  In that case, witnesses
heard an accident near their home, and they went to the scene where
they discovered a vehicle that had come to rest in a ditch after
tearing down some fifty to sixty feet of a fence.  The vehicle was
unoccupied, and the witnesses contacted a deputy who lived nearby
when they were unable to locate the driver.  The deputy and other
law enforcement officers arrived and began looking for the driver. 
During the search, the officers learned that the vehicle was
registered in the appellant's name, and they received a report that
a man, later identified as the appellant, had come to the deputy's
home and had told the deputy's wife that his car had broken down. 
The appellant had left by the time the deputy arrived at his home,
but he was eventually found lying face down in a ditch three
hundred feet from the wrecked vehicle.  When questioned, the
appellant told an officer that he had not been driving the vehicle
but that the driver was a man named "Bill," whom he had met at a
tavern.  On this evidence, we held that the jury, without 
speculating, could have concluded that the appellant was driving
the vehicle when the accident occurred.   
     Turning to the case at hand, we first observe that the statute
does not require law enforcement officers to actually witness an
intoxicated person driving or exercising control of a vehicle. 
Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994); Hodge v.
State, 27 Ark. App. 93, 766 S.W.2d 619 (1989).  It is well-settled
that the State may prove by circumstantial evidence that a person
operated or was in actual physical control of a vehicle.  
Wetherington v. State, supra; Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985).  Circumstantial evidence may constitute
substantial evidence when every other reasonable hypothesis
consistent with innocence is excluded.  Yocum v. State, 325 Ark.
180, 925 S.W.2d 385 (1996).  The question of whether the 
circumstantial evidence excludes any other hypothesis consistent
with innocence is for the jury to decide.  Key v. State, 325 Ark.
73, 923 S.W.2d 865 (1996).  Our responsibility, as the reviewing
court, is to determine whether the jury verdict is supported by
substantial evidence.  Wetherington v. State, supra.
     We hold that the verdict is so supported.  Appellant was
discovered walking away from a one-vehicle accident involving his
own truck for which he possessed the keys in his pocket.  There was
testimony that appellant had been driving his truck not long before
his encounter with the police.  And, the jury was entitled to
disregard appellant's story that someone else had been driving the
truck, particularly in light of Deputy Purcell's testimony
concerning his efforts to locate that person, who was nowhere to be
found.  A jury is not required to believe the accused's version of
events because he is the person most interested in the outcome of
the trial.  Reams v. State, 45 Ark. App. 7, 870 S.W.2d 404 (1994). 
See also Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985); Neble
v. State, supra.  In addition, a jury may consider and give weight
to any false and improbable statements made by an accused in
explaining suspicious circumstances.  Reams v. State, supra.  We
think there is sufficient evidence from which the jury could
properly infer that appellant was operating the vehicle at the time
the accident occurred. 
     In his next point, appellant contends that the trial court
abused its discretion in allowing the jury to view the videotape
filmed at the Paragould Police Department.  He argues, in reference
to Rule 403 of the Arkansas Rules of Evidence, that the probative
value of the tape was substantially outweighed by the danger of
unfair prejudice.  He contends that the tape was overly prejudicial
in that he was shown in handcuffs and because it depicted him as
being angry and argumentative, using profanity, and refusing the
breathalyzer test.  We cannot agree.
     It has repeatedly been held that the balancing of probative
value against prejudice is a matter left to the sound discretion of
the trial court, and this decision will not be reversed absent a
showing of manifest abuse.  Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996).  The prejudice referred to in Rule 403 denotes the
effect of the evidence on the jury, not the party opposed to it. 
Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).  Since
intoxication is an essential element of the crime in this case,
evidence that shows the demeanor of the accused at or near the time
of the offense is highly relevant to that issue.  The fact that the
evidence may have also portrayed the appellant in an unfavorable
light does not constitute the kind of unfair prejudice that would
require its exclusion at trial.  We also have some difficulty in
accepting appellant's claim of prejudice when we consider that
appellant contended that the tape was favorable to his defense in
his arguments before the court in his motion for a directed verdict
and before the jury in his closing statement.  We find no abuse of
discretion.
     Affirmed.
     Robbins, C.J., and Crabtree, J., agree.