Daniel J. Modica v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

DANIEL J. MODICA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-00209

DECEMBER 8, 2004

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NO. CR 2002-748]

HONORABLE CAROL CRAFTON ANTHONY, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Daniel J. Modica, appeals his conviction for leaving the scene of an accident involving injury to a nineteen-year-old woman, her infant child, and a thirteen-year-old boy and for failure to render aid. He raises two points on appeal: (1) the trial court erred in failing to exclude testimony regarding the consumption of alcohol, and (2) the evidence is insufficient to support a judgment of guilt. We find no error and affirm.

The accident giving rise to the charges occurred on April 21, 2002. At trial, testimony was presented that appellant began drinking beer at ten or eleven in the morning with appellant's brother, Joseph Modica, and another individual. When the twelve-pack they were sharing was consumed, the three traveled in tandem in two cars to a bootlegger who sold them beer and gin, which appellant drank until dusk. Appellant drove his wife's car and Joseph drove another.

That evening, appellant and his brother were again traveling in tandem. Appellant, who was twenty-eight-years old at the time, drove three passengers. The three were a nineteen-year-old woman in the front passenger seat, her six-month old infant child who was riding in her lap unrestrained, and a thirteen-year-old boy who was sitting in the back seat of the vehicle. Appellant was racing his brother and estimated his speed to be 125 m.p.h. at one point. However, in speeding around another car, he lost control of the vehicle, skidded across the street, flipped twice, and landed upside down and hit a telephone pole. The baby was thrown from the vehicle and landed nearby on the ground. The young woman had visible, bloody injuries to her neck and leg. A month before trial, more than a year after the accident, she had a medical procedure to remove pieces of glass from her face. The teen-age boy had blood coming from his nose and the officer who examined the vehicle said there was "blood splattered about the passenger seat," as well as blood on the back seat of the vehicle and one of the rear windows. Appellant's brother arrived on the scene shortly after the accident occurred. After his brother arrived, appellant ran across the street to the car. There was testimony that appellant ran across the street to the car to get a cigarette. Further testimony was presented that appellant also said he was hurting and couldn't breathe and wanted his brother to take him and the others to the hospital. However, a bystander pulled up and stated that an ambulance was on the way. Appellant left before the paramedics arrived and never sought medical treatment in Arkansas for any injuries received, although evidence was presented that he sought treatment in Michigan where he headed immediately after the accident.

We address appellant's second argument challenging the sufficiency of the evidence first due to double-jeopardy considerations. See Whisenant v. State, 85 Ark. App. 111, ___ S.W.3d ___ (2004). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). Circumstantial evidence may constitute substantial evidence, but it must exclude every other reasonable hypothesis consistent with innocence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000); Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999) Whether the evidence excludes every other reasonable hypothesis is left to the jury to determine. Williams, supra. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr, supra. We make no distinction between direct and circumstantial evidence when reviewing the sufficiency of the evidence. Williams, supra.

Appellant argues that before leaving the scene he rendered "reasonable assistance" because he asked his brother to take the injured passengers to the hospital and did not leave until after a bystander informed them that an ambulance was on the way. He asserts that his asking his brother to take him and the injured passengers to the hospital, and then not leaving until he had been told an ambulance was on its way, satisfied any duty he had to render reasonable assistance.

Arkansas Code Annotated § 27-53-103 (Supp. 2003) provides that a driver involved in an accident has a legal duty to provide personal information and render medical aid. The statute reads as follows:

The driver of any vehicle involved in an accident resulting in injury to, or death of, any person or damage to any vehicle which is driven or attended by any person shall give his name address, and the registration number of the vehicle his driving. Upon request and if available, the driver shall exhibit his driver's license or commercial driver's license to the person struck, or the driver or occupant of, or person attending, any vehicle collided with and shall render to any person injured in the accident reasonable assistance, including the transporting, of the person to a physician, surgeon, or hospital for medical or surgical treatment if it isapparent that treatment is necessary or if transporting is requested by the injured person.

Id. (emphasis added).

The Arkansas Supreme Court in Barnhill v. State, 247 Ark. 28, 444 S.W.2d 97 (1969) held that there was substantial evidence to support a conviction for this same offense. Although his identity was known and others were rendering aid, there was evidence that Barnhill hurriedly left the scene of the accident before an injured person was removed. Id. Contrary to appellant's assertion, Barnhill interprets Ark. Code Ann. § 27-53-103 as requiring more than just knowledge that others are assisting the victims.

In view of the testimony describing the injuries to the passengers of appellant's car and the description of his leaving the scene before the arrival of emergency personnel to aid those in need of medical attention, the jury's determination that appellant did not render "reasonable assistance" before leaving the scene of an accident resulting in injury is supported by substantial evidence.

Appellant also argues that the trial court erred in failing to exclude testimony regarding the consumption of alcohol. He claims that the consumption of alcohol is irrelevant to the charges. He relies upon Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987) (superseded by statute as stated in Aka v. Jefferson Hospital Assoc., 344 Ark 627, 42 S.W.3d 508 (2001) with regard to defining a fetus as a person) (reducing the sentence to the minimum the jury could have set for the conviction of manslaughter for the death of an unborn fetus, holding that trial court improperly allowed the State to introduce evidence involving a graphic and detailed explanation of the death of a fetus because such vivid and detailed explanation could have improperly influenced the jury in the sentencing), and upon Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978) (holding that the trial court correctly excluded testimony regarding the presence of alcohol in car of the victim of a negligent homicide when there was no evidence that alcohol contributed to the accident).

In making this argument, appellant proposes that the only purpose for which the State introduced this testimony must have been to inflame the jury and demonstrate that the appellant must have been acting irresponsibly after the accident because he was acting irresponsibly before the accident. We reject that proposition. Under the res gestae exception, separate and isolated crimes or facts may be shown to fully illustrate the circumstances connected with the charge being tried. When acts are intermingled and contemporaneous with one another, they may be proven as a part of the whole criminal scene. E.g., Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

The purpose of presenting testimony about appellant's alcohol consumption, which occurred immediately prior the accident, was for the jury to understand the facts surrounding the accident and appellant's motive for leaving the scene of the accident. See Barrett v. State, ___ Ark. ___, 199 S.W.3d 485 (2003) (upholding admission of testimony of past history of drug abuse, as well as specific drug and alcohol use both before and after the commission of the murder for which accused was charged); Gaines v. State, 340 Ark. 99, 8 S.W.2d 547 (2000) (holding that even though drug use was not an element of arson, it was shown to put the jury in possession of the entire transaction where accused under the influence of drugs repeatedly returned to the area of the intended arson and gave drugs in return for delivery of a dollar's worth of gasoline).

Although driving while intoxicated is not an element of the crime charged, the circuit court properly allowed its admission because it was intermingled and contemporaneous with the crime and is evidence of appellant's motive in leaving the scene. The State is entitled to introduce evidence of circumstances that explain the act, show a motive, or illustrate the accused's state of mind. Hudson v. State, 85 Ark. App. 85, 146 S.W.3d 380 (2004). The admission or rejection of evidence of other crimes is left to the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of discretion. Id. Here, appellant's consumption of alcohol was admissible under Rule 404(b) where it was independently relevant to his motive for fleeing the scene of the accident without rendering reasonable medical assistance.

Appellant also argues that even if the evidence of the alcohol consumption was admissible, its probative value was outweighed by its prejudicial effect. The standard of review for a court's refusal to exclude evidence on the basis of unfair prejudice is abuse of discretion. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001). The fact that evidence is prejudicial to a party is not in itself, reason to exclude evidence. The danger of unfair prejudice must substantially outweigh the probative value of the evidence. Id. Given the proximity in time from when appellant consumed alcohol to when the accident occurred from which he left the scene, any alleged unfair prejudice to appellant did not substantially outweigh the probative value of the testimony.

As for appellant's allegation that the jury's sentence is evidence that the jury was angry and wanting to punish him for the consumption of alcohol, we note that testimony regarding the reckless nature of appellant's racing the car, his lack of concern for the young mother, infant, and boy injured in his vehicle, his leaving the scene and subsequent leaving of the State are sufficient to refute appellant's assertion that the sentence itself proves unfair prejudice resulting from the evidence of the consumption of alcohol.

Accordingly, we find no error and affirm.

Griffen and Crabtree, JJ., agree.