Alton Lavern Brunson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

ALTON LAVERN BRUNSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-253

December 23, 2002

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT

[NO. CR-2001-04]

HON. F. RUSSELL ROGERS,

JUDGE

AFFIRMED

The appellant in this criminal case was charged with driving while intoxicated, fourth offense. After a bench trial, the trial judge found appellant guilty of DWI, third offense. Appellant was fined $2,500.00 and sentenced to one year in jail. From that conviction, comes this appeal.

For reversal, appellant contends that the trial court erred in denying his motion for a directed verdict. We affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Roach v. State, 30 Ark. App. 119, 783 S.W.2d 376 (1990). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the appellee; we consider only the evidence tending to support the verdict and affirm if there is substantial

evidence to support the finding of the trier of fact. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other without resort to suspicion or conjecture. Id.

Arkansas Code Annotated § 5-65-103(a) (Repl. 1997) makes it unlawful for any person who is intoxicated to operate or be in actual physical control of a motor vehicle. "Intoxicated" means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver's reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians. Ark. Code Ann. § 5-65-102(1) (Repl. 1997). The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Opinion testimony regarding intoxication is admissible. Id.

Viewing the evidence, as we must, in the light most favorable to the appellee, the record shows that appellant was observed by Officer Moses Turner of the DeWitt Police Department on November 2, 1999, at 2:45 a.m. Officer Turner noticed appellant's vehicle approaching him in a ziz-zag manner, using approximately seventy percent of the roadway. Officer Turner followed the vehicle for a few blocks before stopping it. As he exited his police car and approached the vehicle he had stopped, Officer Turner noticed that the driver was appellant. Officer Turner smelled a strong odor of alcohol on appellant and asked appellant to step out of his vehicle. As he did so, appellant had to use the door of his vehicleto maintain his balance and to "keep from staggering any more than he already was." Officer Turner checked and found that appellant's driver's license was suspended and that he was wanted for fleeing, so he ordered appellant to take a seat in the police car. Appellant held on to the fender of his truck as he walked back to Officer Turner's police car. When he arrived at the police station, appellant wobbled as he walked. Officer Turner stated that, during his contact with appellant, appellant exhibited all the signs of being intoxicated: he smelled strongly of alcohol, was unsteady on his feet, his eyes were bloodshot, his speech was slurred, and he had a heavy tongue. Officer Turner opined that appellant was too intoxicated to operate a vehicle. He based this opinion on his experience as a law enforcement officer and on his experience with appellant. Officer Turner testified that he had come into contact with appellant at least one hundred times in twenty years, and had seen appellant "sober, intoxicated, and in-between." Officer Turner stated that there was "no doubt in [his] mind that [appellant] was intoxicated."

Appellant contends that this evidence is insufficient to show that he was intoxicated. We do not agree. Although no valid breathalyzer results were obtained, a DWI conviction is not dependent upon evidence of blood-alcohol content in view of sufficient other evidence of intoxication. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). Nor was the police officer's failure to perform field-sobriety tests fatal. Although such tests may have provided additional evidence of appellant's coordination or lack thereof, this would merely have been cumulative to the police officer's testimony regarding appellant's unsteadiness and lack of coordination. Given this evidence, the evidence of the officer's familiarity with appellant,and the officer's definite opinion that appellant was intoxicated, we hold that there was substantial evidence to show that appellant was intoxicated. See Johnson v. State, supra.

Affirmed.

Hart and Bird, JJ., agree.