Latricia D. Polk v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR02-627

April 30, 2003

LATRICIA D. POLK AN APPEAL FROM ASHLEY

APPELLANT COUNTY CIRCUIT COURT

[CR01-166-2]

V. HON. SAM POPE, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Appellant Latricia Polk appeals from a jury conviction in which she was found guilty of driving while intoxicated; aggravated assault against a family member; aggravated assault; first-degree battery; first-degree domestic battery; no liability insurance; no driver's license; and no child passenger protection as a result of a two-vehicle accident. She was sentenced to twenty-seven years in prison. Appellant argues that the trial court abused its discretion when it allowed a state trooper to testify regarding the rate of speed her vehicle was traveling when the accident occurred. We find no reversible error and affirm.

On June 22, 2001, appellant was driving down Ashley County Road 17 in Ashley County, Arkansas, when her vehicle collided head on with another vehicle containing driver Robert Gray, his wife, Kimberly Gray, and their two children. Inside appellant's vehiclewere four children between the ages of five to thirteen. Upon impact of the two vehicles, everyone from appellant's vehicle was ejected. While there were no fatalities, everyone sustained some type of injury and one of the four children in appellant's vehicle and one of the Gray's children were seriously injured. Appellant was charged with (1) driving while intoxicated, Ark. Code Ann. § 5-65-103; (2) aggravated assault against a family member, Ark. Code Ann. § 5-26-306; (3) aggravated assault, Ark. Code Ann. § 5-13-204; (4) first-degree battery, Ark. Code Ann. § 5-13-201; (5) first-degree domestic battery, Ark. Code Ann. § 5-13-201; (6) no liability insurance, Ark. Code Ann. § 27-22-104; (7) no driver's license, Ark. Code Ann. § 27-16-602; and (8) no child passenger protection, Ark. Code Ann. § 27-34-104.

At trial, appellant admitted consuming alcohol prior to the accident and being legally intoxicated at the time of the collision. Officer Donham, the state trooper who investigated the accident, testified that appellant was traveling eighty-one miles per hour at the time of the accident. Appellant objected to his testimony because Officer Donham was not an accident reconstruction expert. The trial court allowed the testimony. The jury convicted appellant of the above mentioned charges and sentenced her to prison. This appeal followed. Appellant argues that Officer Donham should not have been allowed to testify about the speed her vehicle was traveling when the accident occurred. She asserts that his lay opinion was based on a computer calculation using measurements he took at the scene of the accident, and that there was no foundation laid to show the source of the computer program or its reliability or accuracy. The argument that appellant now advances was not raised tothe trial court. It is well settled that this court does not consider arguments raised for the first time on appeal. Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001). Because appellant failed to object to the reliability and accuracy of the computer program Donham used to base his opinion as to the speed of appellant's vehicle, her present argument is not preserved for appellate review. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).

To convict appellant of the underlying charges of aggravated assault against a family member, aggravated assault, first-degree battery, and first-degree domestic battery, the State was obligated to prove that under circumstances manifesting extreme indifference to the value of human life, appellant purposefully engaged in conduct creating a substantial danger of death or serious physical injury or did cause serious physical injury. See Ark. Code Ann. § 5-26-306 (Repl. 1997); Ark. Code Ann. § 5-13-204 (Repl. 1997); Ark. Code Ann. § 5-13-201 (Repl. 1997). The State's theory of guilt focused on two factors: (1) that appellant was legally intoxicated at the time she was driving her vehicle and the accident occurred, and (2) that appellant was driving her vehicle at an excessive rate of speed.

Having established that appellant was legally intoxicated at the time of the accident, the State called Donham to testify that she also was traveling at eighty-one miles per hour when the accident occurred. Appellant objected to Donham's testimony about the speed of her vehicle on the grounds that he was not an accident reconstruction expert. The State then responded that it would offer Donham as an expert for purposes of speed calculation if defense counsel requested. Over defense counsel's comments that using a calculation to figure speed does not make a person an expert, but without formally ruling that Donham wasan expert, the trial court allowed the officer to testify stating that Donham was giving an opinion about the speed of appellant's vehicle and that the officer could state that opinion and calculation. Thus, the record is not clear whether Donham was testifying as an expert witness with specialized knowledge in speed calculation or as a lay witness whose opinion was to be helpful in the determination of a fact in issue.

In Higgs v. Hodges, 16 Ark. App. 146, 697 S.W.2d 943 (1985), this court held that a state trooper who had investigated a car accident was qualified as an expert due to his training and experience to testify that Higgs had been driving too fast; he had observed the impact area, the debris, the position of the vehicles, and the general conditions. This court, nevertheless, held that the state trooper's testimony was inadmissible because the only basis for his conclusion that Higgs was speeding was the fact that she lost control of her car. Id. Thus, given the same facts, the jury could have arrived at a conclusion as to the speed just as well as the trooper could. Id.

Unlike in Higgs v. Hodges, Donham based his opinion of the speed of appellant's vehicle on the information, measurements, and numbers he personally collected at the scene of the accident and then used the computer program to calculate the exact rate of speed; thus, his testimony involved more than making a presumption that appellant was speeding. In Redman v. St. Louis Southwestern Ry., 316 Ark. 636, 873 S.W.2d 542 (1994), the supreme court held that under circumstances where the trial court twice sustained the objection that a state trooper was not an expert, then later allows the trooper to testify concerning the reaction time of motorists, it was not necessary that the trial court state formally that thewitness was qualified as an expert. Accordingly, Donham's opinion as to the speed at which appellant's vehicle was traveling at the time of the accident would have been admissible as expert opinion testimony.

Neither party, however, argues that Donham was testifying as an expert. Rather both arguments rest on the premise that Donham was a lay witness. Nonetheless, even if Donham did not qualify as an expert, his testimony that appellant was traveling at eighty-one miles per hour when the accident occurred was admissible as lay testimony. Under Rule 701 of the Arkansas Rules of Evidence, a witness not testifying as an expert may testify in the form of opinions or inferences which are rationally based on the perception of the witness and which are helpful to the clear understanding of his testimony or determination of a fact issue. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997). Rule 701 is not a rule against opinions, but a rule that conditionally favors them. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). A trial court's decision to allow lay-opinion testimony under Rule 701 will not be reversed absent an abuse of discretion. Id.

In order to offer opinion testimony under Rule 701, a witness first must have the requisite personal knowledge of the facts as provided under Ark. R. Evid. 602, and second any inferences or opinions expressed by the witness must pass the rational connection and helpful tests of Rule 701. Moore v. State, 58 Ark. App. 120, 947 S.W.2d 395 (1997). "The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of observed facts." Carton v. Missouri Pac. R.R., 303 Ark. 568, 572, 798 S.W.2d 674, 675 (1990) (citations omitted). A witness "may express theopinion or inference rather than the underlying observations if the expression would be `helpful to a clear understanding of his testimony or the determination of a fact in issue.'" Id. The question here then is whether Donham's testimony relative to appellant's rate of speed is rationally based on his perception.

The record reflects that Donham was the investigating officer for the accident involving the parties. He observed the scene and created a diagram of the accident which pinpointed skid marks, yaw marks, gouge marks, debris, and the location of the vehicles. At the scene, Donham located the area of impact, traced back skid marks, examined the parties' vehicles, and determined that appellant's vehicle left a sixty-two-foot yaw mark. He checked the "drag factor"of the roadway, the factor that keeps a vehicle on the road, to determine the friction of the road. Clearly, Donham had the requisite personal knowledge of the facts of this case. The record further shows that based on the information that Donham personally gathered from the accident scene, he converted it to an actual speed rating using a universal formula contained in a computer program. Although Donham used a computer program to convert the data, all the information imputed into the computer was based on facts as he had observed or perceived them. Therefore, Donham's opinion that appellant was traveling eighty-one miles per hour when the accident occurred also was admissible as lay opinion.

Additionally, we hold that, under the facts of this case, if we were to conclude that the testimony was inadmissible, the error was harmless. This court has consistently held that under the harmless-error rule, when evidence of guilt is overwhelming, and the error slight,we can declare the error to be harmless. Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998). Absent Donham's testimony that appellant was speeding, appellant admitted driving her vehicle while intoxicated, which in and of itself manifested extreme indifference to the value of human life. As a result of appellant's driving while under the influence, several people were seriously injured. Moreover, it is well established that the courts will not presume prejudice, and we will not reverse the trial court's ruling absent a showing of prejudice. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). Here, appellant made no showing of prejudice.

Accordingly, based on our review of the record, we hold that the trial court did not err in admitting Donham's testimony.

Affirmed.

Stroud, C.J., and Roaf, J., agree.