David Brady v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

DAVID BRADY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 99-992

MARCH 7, 2001

APPEAL FROM THE LEE COUNTY CIRCUIT COURT

[NO. CR 98-57]

HONORABLE HARVEY LEE YATES,

CIRCUIT JUDGE

AFFIRMED

Appellant, David Brady, was convicted by the Lee County Circuit Court of the following offenses: 1) driving while intoxicated; 2) refusing a breathalyzer test; 3) driving on a suspended license; 4) fleeing; 5) reckless driving; 6) no seat belt; 7) no vehicle license; and 8) no liability insurance.1 Appellant was sentenced to serve one day in jail with credit for time served, his driver's license was suspended for six months, and he was fined $700.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdrawal on the grounds that this appeal is without merit. Counsel's motion was accompanied by an abstract and brief referring to everything in the record that might arguably support an appeal. The Clerk of this court attempted to furnish appellant with a copy of his counsel's brief at the address counsel

provided in the Certificate of Service in the motion to be relieved. The copy of counsel's brief was returned marked, "unclaimed," and appellant has not filed a pro se list of points for appeal.

Appellant's conviction arises out of an incident which began when he ran a stop sign, fled from police, and was arrested for driving while intoxicated. There were seven adverse rulings to appellant during trial, consisting of five defense motions, one defense objection, and one State objection.

First, appellant moved for a directed verdict at the close of the State's case. This motion was denied. Second, appellant renewed his motion for directed verdict at the close of all evidence, and it was again denied. As no evidence was presented after the State rested, we will address the two adverse decisions together. A motion for directed verdict is a challenge to the sufficiency of the evidence which we consider before any other points on appeal. Dye v. State, 70 Ark. App 329, 17 S.W.3d 505 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Id. Substantial evidence is that which is of sufficient force that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). It is well settled that it is the province of the fact-finder to determine the weight of evidence and the credibility of witnesses. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999).

In this case, there was only one witness at trial, Officer Mike Kennedy. Officer Kennedy testified that he observed appellant fail to stop at a stop sign and when he tried to stop appellant, appellant sped up. Officer Kennedy testified that it took him three to five miles to stop appellant, and that appellant was traveling at a high rate of speed and partially ran off the road into a ditch. Officer Kennedy could see a beer bottle in the bed of appellant's truck. When appellant finally stopped, Officer Kennedy placed him in custody and noticed a strong odor of intoxicants on appellant's breath. Appellant's eyes were red and glassed over, and his speech was slurred. When Officer Kennedy took appellant to the Marianna police department, he read appellant his implied consent rights, which appellant signed. Appellant did not successfully blow into the breathalyzer machine. Officer Kennedy testified that appellant's vehicle was not licensed, and that appellant did not provide proof of liability insurance. Further, Office Kennedy testified that he could plainly see into appellant's vehicle and saw that appellant was not wearing a seat belt. Officer Kennedy ran appellant's driver's license through the ACIC driver's license terminal. The terminal provided Officer Kennedy with the information that appellant's driver's license was currently suspended.

Based on Officer Kennedy's testimony, the trial court had sufficient evidence to convict appellant of all offenses charged. Thus, the trial court committed no error in denying appellant's motions for directed verdict.

Third, the circuit court denied appellant's habeas corpus petition. Appellant stated in his petition that he had been convicted of the current offenses by the Lee County Municipal Court and sentenced to fifteen days imprisonment. Appellant argued that any additional sentences imposed by the Lee County Circuit Court would violate his rights under the Constitutional prohibition against double jeopardy. The court denied appellant's petition, stating that appellant may be entitled to some jail time served, but no bar to prosecution existed. Appellant is the party who appealed the case from the Lee County Municipal Court after he had been in jail for fifteen days. Double Jeopardy protects a defendant from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Zawodniak v. State, 339 Ark. 66, 3. S.W.3d 66 (1999). In this case there was nosecond prosecution as the trial by the circuit court was simply an appeal from the municipal court, thus there was just one prosecution. Therefore, the trial court did not err in denying appellant's habeas corpus petition.

Fourth, the trial court denied appellant's motion in limine to suppress the results of a breathalyzer test. Appellant argued that the twenty-minute wait rule was not followed in this case.2 However, the evidence showed that appellant was stopped at 1:30 a.m. and was under continual observation until 1:58 a.m. when appellant did not successfully blow into the breathalyzer machine. That was twenty-eight minutes. Thus, the trial court committed no error.

Fifth, appellant moved to suppress the arresting officer's videotape of the traffic stop. The trial court admitted the videotape into evidence, but granted appellant's motion to suppress as to all responses other than responses to identification questions. Thus, no error was committed.

Sixth, appellant objected on the grounds of speculation to Officer Kennedy estimating that he chased appellant for three to five miles. The trial court overruled this objection. Seventh, the State's objection was sustained when appellant inquired as to whether a breathalyzer test was performed on any passenger in appellant's vehicle. The trial court found that this line of questioning was irrelevant as it had nothing to do with the case

Both of these rulings regard the admission of evidence. We will not reverse a trial court's ruling on admission of evidence "absent an abuse of discretion; nor will we reverse absent a showingof prejudice." Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). We find no such abuse or prejudice in this case.

There were no other rulings decided adversely to appellant. Based on our review of the record and the brief presented to us, we find that there was compliance with Rule 4-3(j) and that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted and the judgment of conviction is affirmed.

Affirmed.

Griffen and Baker, JJ., agree.

1 Appellant was also found guilty of running a stop sign, but no such offense was listed in appellant's judgment and disposition order.

2 At trial, appellant argued that the arresting officer failed to allow him an alternative form of testing in addition to the breathalyzer. However, the evidence showed that appellant signed an implied consent form stating that he was aware that he could have an additional test performed. Appellant makes no other reference to this argument on appeal. As counsel's brief does address the adverse ruling toward appellant's motion in limine, and counsel briefs the argument with respect to the twenty-minute wait period, we hold that counsel's failure to brief this argument is not fatal to his motion to be relieved.