Jayson Campbell v. City of Alma

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

JAYSON CAMPBELL

APPELLANT

V.

CITY OF ALMA

APPELLEE

CACR02-295

November 13, 2002

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. MC 2000-41]

HON. FLOYD G. ROGERS,

JUDGE

AFFIRMED

The appellant in this case was arrested after two women delivered his car keys to the police station. One of the women said that she had seen him drunk and driving erratically earlier that morning, and the other woman confirmed that they had removed the keys from his vehicle when they found him a short distance away, passed out behind the wheel. The police officer investigated and found appellant asleep at the wheel of his vehicle, smelling of intoxicants and vomit. Appellant was arrested, tried, and convicted of driving while intoxicated, first offense. This appeal followed.

For reversal, appellant contends that the trial court erred in ruling as a matter of law that appellant was in actual control of his vehicle at the time of his arrest, that the evidence

was insufficient to support his conviction, and that the testimony of his former fiancée was inherently lacking in credibility. We affirm.

Appellant's first argument misstates the facts and is irrelevant. There is no indication that the trial judge, who heard the facts in this non-jury trial, ruled or believed that appellant was in control of his vehicle "as a matter of law." Whether or not appellant was in actual physical control of his vehicle while intoxicated was a fact question, see Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989), and there is nothing in the record to indicate that the trial judge treated this as anything other than a fact question.

Furthermore, whether appellant was in control of the vehicle "at the time of his arrest" is irrelevant; the only pertinent question is whether the evidence supports a finding that appellant was at some time in actual physical control of the vehicle while intoxicated. See Ark. Code Ann. § 5-65-103 (Repl. 1997). Law enforcement officers need not actually witness an intoxicated person driving or exercising control of a vehicle in order to prove that the defendant was in actual control of the vehicle while intoxicated; instead, the State may prove by circumstantial evidence that a person operated or was in actual physical control of a vehicle. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Testimony of witnesses other than police officers may provide evidence that the defendant was actually operating the vehicle. See id.

Our standard of review regarding the sufficiency of the evidence to support a criminal conviction is well-settled:

On appeal in criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the state and affirm if there is any substantial evidence to support the trial court's judgment. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Because evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred.

Ryan v. State, 30 Ark. App. 196, 199, 786 S.W.2d 835, 837 (1990) (citations omitted).

In the present case, there was testimony that, on September 1, 2000, Brandy Jones saw appellant in a parked vehicle. He appeared to have been vomiting and was apparently passed out. She testified that she observed beer bottles on the floor of appellant's vehicle. She woke him and spoke to him. He replied angrily and drove away erratically and without headlights, stopping a short distance away. Brandy and a friend subsequently returned to appellant's car, observed that he had again passed out, and removed the keys from the ignition. They then delivered the keys to a police officer. The officer testified that the women appeared at the police station at 12:50 a.m. on September 1, delivered appellant's keys, and told him that there was a person passed out in the roadway. The officer went to the location given by the two women, and observed appellant behind the wheel of his car, in a "comatose" state, with a strong odor of vomit and intoxicants emanating from the vehicle. He woke appellant with difficulty, determined that he was intoxicated, arrested him, and transported him to the police station. There, a breathalyzer test was conducted at 2:18 a.m. that indicated that appellant's blood alcohol level was .156%. Despite appellant'sargument that no time frame was provided, the fact-finder could conclude that all of the pertinent events happened within the span of a single hour, based on the testimony that appellant was observed driving erratically on September 1 and that, before one hour of that day had passed, the police officer found him behind the wheel, passed out, smelling of intoxicants and vomit. We hold that appellant's conviction is supported by substantial evidence.

Appellant also contends that the testimony of Brandy Jones should not be considered. He argues that, because she had a previous, unpleasant romantic involvement with appellant, we should discount her testimony and hold as a matter of law that it lacked credibility. We cannot do so. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Kay v. State, 46 Ark. App. 82, 877 S.W.2d 957 (1994).

Affirmed.

Griffen and Neal, JJ., agree.