Deneice Carter v. City of Fort Smith

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

DENEICE CARTER

APPELLANT

V.

CITY OF FORT SMITH

APPELLEE

CACR03-00416

April 28, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. MC 02-85]

HON. J. MICHAEL FITZHUGH,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Sebastian County jury found Deneice Carter guilty of driving with a suspended license, and she was sentenced to ten days in jail. Appellant raises several points on appeal to this court: (1) the trial court erred in using the same prosecutor in all of her cases because the prosecutor had information that was not made known to her through discovery; (2) the trial court erred in allowing the testimony of Officer Scott Campbell because he was not credible and his answers were only vague recollections; (3) the trial court erred in permitting Officer Dewey Young's testimony to continue due to inconsistencies regarding his version of events; (4) the trial court erred when no action was taken by it after being notified by defense counsel of improper remarks made by a juror; (5) the trial court erred when it did not recognize her action as being her only alternative in an emergency situation. We affirm.

Officer Dewey Young of the Fort Smith Police Department testified that on April 8, 2002, he was on patrol when he saw appellant's vehicle as it passed through a stop sign going approximately 20 to 25 miles per hour. Officer Young conceded that appellant, after being pulled over, seemed to be in a hurry because she was speaking so fast. He stated that she advised him that her license was suspended. Officer Young testified that he confirmed through the dispatch that her license was indeed suspended and learned that it was suspended for "DWI .15 or more." Officer Young stated that appellant explained to him that her father was ill and might need to be taken to the hospital. He stated that he offered to call an ambulance to respond to her father's medical emergency but that appellant declined. He stated that, once appellant was in custody, he allowed her passenger to walk the remaining distance, which amounted to a block or two, to check on appellant's father. Officer Young stated that the passenger returned after approximately ten to fifteen minutes with appellant's father. He said that appellant's father got out of the van he had driven and began ranting and raving that the officers were harassing his daughter. Officer Young stated that appellant's father never asked for any medical assistance and that there was, in fact, no discussion about an emergency situation. Officer Young also recalled that appellant's father did not appear to be in any distress or discomfort from being ill.

Officer Scott Campbell testified that he stood back to the side while Officer Young and appellant were speaking. He said that appellant was upset and crying but that he did not recall whether she explained to Officer Young that there was an emergency situation. Officer Campbell testified that there did not appear to be any emergency with regard to appellant's father because of his demeanor at the scene.

Judy Milosav, a counselor at the Department of Finance and Administration-Driver's Services, testified that a person with his first DWI who registers less than .15 can apply for restricted driving privileges during his period of suspension. She stated that, although her records indicated that appellant had applied for such a permit, she was rejected because she had registered over .15.

Crystal Ensey, the sister of appellant's boyfriend, testified that on the day in question she received a call from appellant's father asking her to relay a message to appellant, who did not have a phone. Ensey stated that she did not have a car, so she walked the five or six blocks to appellant's house to tell her that her father needed to go to the hospital.

Robert Pulliam, appellant's father, testified that he was having chest pains on the day in question and explained that his wife could not be left alone because of her health condition. Pulliam testified that he needed appellant to stay with her mother because he had been told that an ambulance could not transport both of them. He stated that he did not call for an ambulance because he had called on other occasions and no one had responded. Pulliam conceded that he did not go to the hospital following the incident.

Appellant explained that she panicked when she got the news about her father and did not know anyone who could drive for her. She testified that she explained the emergency situation to Officer Young and that, when her father arrived, he told the officer he was having chest pains and that he needed her to stay with her mother. Appellant testified that the officer told her father that his condition was not the officer's concern. Likewise, Brian Cantrell, appellant's boyfriend and the passenger in her car that day, testified that he told Officer Young that appellant's father was ill but that Officer Young told him, "I don't want to hear that."

Any person whose privilege to operate a motor vehicle has been suspended or revoked under the provisions of the Omnibus DWI Act, who shall operate a motor vehicle in that state during the period of such suspension or revocation, shall be imprisoned for ten days and may be assessed a fine of not more than $1,000. Ark. Code Ann. § 5-65-105 (Supp. 2003).

On appeal from a criminal conviction, we review the sufficiency of the evidence prior to the consideration of trial errors. Scott v. State, 77 Ark. App. 329, 82 S.W.3d 170 (2002). We determine the sufficiency of the evidence by viewing the evidence adduced at trial in the light most favorable to appellee, and the judgment is affirmed if there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of sufficient force and character as to compel a conclusion one way or the other with reasonable and material certainty. Id.

We first consider appellant's second, third, and fifth arguments as they seem to challenge the sufficiency of the evidence. These arguments focus on the credibility of certain witnesses. This court does not attempt to weigh the evidence or assess the credibility of witnesses. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). That lies within the province of the trier of fact. Id. A jury is free to believe all or part of a witness's testimony. Id. Moreover, inconsistent testimony does not render proof insufficient as a matter of law, and one eyewitness's testimony is sufficient to sustain a conviction. Id. The jury obviously believed the officers' testimony over that of appellant and her witnesses in presenting a choice-of-evils defense. Because the jury was entitled to make such credibility determinations, we affirm on these points.

In what is listed as her first argument on appeal, appellant cites Ark. R. Crim. P. 19.2 but does not present any convincing argument regarding an alleged discovery violation by the State. We will not consider an argument where it is not apparent without further research that the argument is well taken. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000).

Finally, appellant argues that the trial court erred when it took no action after defense counsel notified the court that the foreman of the jury stated to another juror that, "The law is the law so we don't have to hear any witnesses[;] the case is already decided." Appellant does not reference a page number in her abstract demonstrating that this objection was made and, indeed, we find no such objection in the record. Accordingly, we cannot reach the merits of appellant's allegation. See Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).

Affirmed.

Bird and Roaf, JJ., agree.