Johnny Robinson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

JOHNNY ROBINSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-967

March 14, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR99-3236

HON. JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Appellant Johnny Robinson appeals from convictions in the Circuit Court of Pulaski County of improper parking and refusal to submit to a blood-alcohol test. He challenges the sufficiency of the evidence. We affirm.

On June 1, 1999, appellant was arrested by an off-duty police officer working as a security guard at Harvest Foods. He was charged in Little Rock Municipal Court with parking in a handicapped area, DWI, driving on a suspended license, and refusal to submit. Appellant was found guilty of parking in a handicapped area, driving on a suspended license, and refusal to submit, and appellant appealed the convictions to the Pulaski County Circuit Court. The charge of driving on a suspended license was dismissed prior to the trial in circuit court. The case was tried before the court.

The State's case consisted of the testimony of two witnesses - Officers Garrett and Murski. Garrett testified that he was working off-duty at Harvest Foods on June 1, 1999. He stated that he saw appellant drive a black truck and park in a handicapped spot. He recalled that appellant exited the driver's side of the vehicle and went towards the store. Garrett testified that he stopped appellant when he noticed a strong odor of alcohol on his person. Garrett administered a field sobriety test. Appellant was only able to take one of the tests because he claimed he had a pin in his leg or ankle and a metal plate in his head. Appellant failed all six points of the one test Garrett was able to administer. Garrett stated that he called for a unit to transport appellant to jail to take a blood-alcohol test. Garrett testified that he wrote appellant a ticket for driving on a suspended license and parking in a handicapped space.

Officer Murski testified that he picked appellant up at Harvest Foods and took him to the Pulaski County Jail. Murski stated that the DWI packet introduced into evidence indicated that appellant refused to take a blood-alcohol test.

Appellant called two witnesses to testify, and also testified in his own defense. Gilbert Dednar testified that appellant asked him to drive him to Harvest Foods because his feet hurt. Dednar testified that he pulled up to Harvest Foods and parked. When Dednar returned to the truck, appellant was under arrest for DWI. Dednar testified he told the officer that he drove the truck to Harvest Foods.

George White testified that he was with appellant on June 1, 1999. White stated that he was waiting on a ride when the truck pulled up. White testified that Dednar was driving and that appellant was on the passenger side.

Appellant testified in his own defense. He stated that he was not able to drive the truck on June 1st because he was taking medication and had gout and arthritis, which caused his feet to swell. He stated that he asked Dednar to drive him to the store. Appellant recalled seeing White at the store that day. Appellant testified that he told the officer that he did not drive the vehicle and the officer responded that he did not care whether he drove it or not, he was going to jail. Appellantadmitted that they parked in a handicapped space without a sticker.

Appellant's abstract does not include a motion for a directed verdict at the close of the evidence. However, the record and the State's brief reflect that after appellant testified, his counsel stated "In light of the comments I would move to dismiss. Three people -- I don't know any reason -- all three of these people would lie and say [appellant] wasn't driving?"

Appellant argues that his witnesses should be believed as opposed to the State's witnesses. His argument is without merit. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict and will affirm if the finding of guilt is supported by substantial evidence. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). Officer Garrett testified that appellant was driving the truck. Appellant and his two witnesses testified that he was a passenger in the truck. The trial court chose to believe Officer Garrett's testimony. On appeal, we do not weigh the credibility of witnesses. See Sharkey v. State, supra. Rather, we decide whether there is substantial evidence to support the trial court's findings. Appellant's argument fails because it is based on the improper assumption that this court may assess the credibility of witnesses. Id.

Affirmed.

Pittman and Hart, JJ., agree.