Jason Walsh v. State of Arkansas

ar04-223

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

 

DIVISION I

JASON WALSH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-223

February 9, 2005

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[CR-2003-1390-1]

HONORABLE WILLIAM A.

STOREY, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Jason Walsh, was charged with the offenses of driving while intoxicated and driving on a suspended driver's license (not DWI related). He was tried by a jury and found not guilty of the DWI charge, but guilty of the driving on a suspended license charge. He was sentenced to serve ninety days in the county jail and fined $500. In this appeal, appellant challenges the trial court's denial of his motion for directed verdict and its denial of his motion to sever the two offenses. We affirm.

At the trial of this matter, Officer Jason Eddie, a certified law enforcement officer with the Fayetteville Police Department, testified that around 12:30 a.m. on February 23, 2003, he responded to a call from his sergeant to go to "The Electric Cowboy," a bar in Fayetteville. He explained that his sergeant had received an anonymous call reporting that a maroon Corvette, with a specified tag number, had marijuana inside of it and was located at The Electric Cowboy. Officer Eddie stated that he located the car but that nobody was in it. He said that he checked the vehicle tag and then left to take care of other calls. He testified that he later returned and observed two people walk to the car. He explained that he observed appellant get into the driver's seat and a female get into the passenger's seat.

Officer Eddie testified that The Electric Cowboy is located on Sixth Street in Fayetteville and that the maroon Corvette was initially parked next to the entrance/exit, very close to Sixth Street. He said that when the car first pulled out of its parking space, it did not turn directly onto Sixth Street. Rather, he stated that the car turned south, traveling down an aisle of the parking lot; that it then turned right, or west; and that it then turned north, remaining in the parking lot the entire time. He said that the car then stopped and that the occupants switched places. He testified that when they began moving again the female was driving, and that he followed them out of the parking lot.

Officer Eddie said that he observed the car make a lane change without signaling; that his previous check of the license tag had returned a brown Oldsmobile rather than a maroon Corvette; and that he therefore made a traffic stop. He testified that he noticed an odor of intoxicating alcohol when he talked to the occupants; that he asked appellant if he had been drinking; and that appellant said yes, explaining that was the reason he had a designated driver. Officer Eddie explained that he then asked appellant to step out of the car to take some field-sobriety tests, which he did. He testified that he then charged appellant with DWI. He said that he also charged him with driving on a suspended driver's license because when he "ran him through the NCIC and ACIC it showed that his driver's license was suspended." The State then introduced as an exhibit a certified, redacted copy of appellant's driving record.

At the conclusion of the State's case, appellant made several motions, including the motion for a directed verdict with respect to the charge of driving with a suspended license. The trial court denied the motion.

Appellant then testified in his own behalf. He stated that on or about February 22, 2003, he drove from his place of work to The Electric Cowboy, where his girlfriend was. He stated that his girlfriend also had a car on the parking lot, and that she wanted to drive it rather than his Corvette because she was unfamiliar with the Corvette. He explained that he did not want to leave his car parked near the front door of the establishment because at closing time everyone gathers there. He said that they were driving his car to where her car was parked in the same lot in order to switch cars. However, he stated that as he was driving his car, he showed her how the electric seats would adjust, and that he thereby convinced her to drive his car. He testified that he never had any intention of driving the car out on the roadway, and that he did not realize the police officer was behind them until they were exiting the parking lot.

On cross-examination, appellant stated that he was aware that his driver's license was suspended; that he had a restricted license, which allowed him to drive only to and from work; that he did not work at The Electric Cowboy; and that he left his work late that night and headed to The Electric Cowboy to meet his girlfriend.

Appellant again moved for a directed verdict on the charge of driving with a suspended license. The trial court denied the motion.

We first address appellant's challenge to the sufficiency of the evidence supporting his conviction for driving on a suspended license. See Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). "Any person whose driver's license or driving privilege as a resident or nonresident has been cancelled, suspended, or revoked . . . and who drives any motorvehicle upon the highways of this state while the license or privilege is cancelled, suspended, or revoked is guilty of a misdemeanor." Ark. Code Ann. § 27-16-303(a)(1) (Repl. 2004). "`Street' or `highway' means the entire width between property lines of every way or place of whatever nature when any part is open to the use of the public, as a matter of right for purposes of vehicular traffic." Ark. Code Ann. § 27-16-205 (Repl. 2004).

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004). The test for determining sufficiency of the evidence is whether substantial evidence supports the verdict. Id. Evidence is substantial when it is forceful enough to compel a conclusion and pass beyond mere suspicion or conjecture. Id. We review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 359 (2004). Moreover, a defendant who goes forward with the production of additional evidence after a directed-verdict motion is overruled, waives any further reliance upon the former motion. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). Consequently, we decide challenges to the sufficiency of the evidence as the evidence existed at the close of the case. Id.

Appellant contends that the trial court erred in denying his motion for a directed verdict because the State did not prove (1) that he had notice of his suspension, (2) that he was driving outside the permitted purposes of his suspended license, and (3) that he was driving on a roadway. We find no error.

Following the denial of his motion for a directed verdict at the close of the State's case, appellant testified that on the night in question he was aware that his driver's license was suspended. Thus, he clearly had notice of the suspension. He also testified that the restriction on his license limited him to driving to and from work, and that on the night in question he drove from his place of work to The Electric Cowboy. This testimony established the restrictions that had been placed on his driving and the fact that he drove on public streets or highways. Finally, he testified that he did not work at The Electric Cowboy, which established that he exceeded the restrictions placed on his license by driving someplace other than home and work. Accordingly, at the close of all of the evidence there was substantial evidence to support appellant's conviction for driving on a suspended license.

For his remaining point of appeal, appellant contends that the trial court erred in denying his motion to sever the DWI charge from the charge of driving with a suspended license, which he raised both before and after the trial began. The decision to sever offenses is discretionary with the trial court. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002). We affirm the trial court's denial of a motion to sever if the offenses at issue were part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Id. We find no abuse of discretion in the trial court's denial of appellant's motion.

Rules 21.1 and 22.2 of the Arkansas Rules of Criminal Procedure provide:

Rule 21.1. Joinder of offenses.

Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:

(a) are of the same or similar character, even if not part of a single scheme or plan; or

(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Rule 22.2. Severance of offenses.

(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.

(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:

(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or

(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense.

Appellant acknowledges that he was not "absolutely entitled to severance under 22.2(a)[.]" He also acknowledges that the two offenses with which he was charged arose out of the same incident. He contends, however, that he sought to sever the offenses because he wished to testify about his manner of driving in the parking lot because "he had important testimony to give about the motivation for his manner of driving in the parking lot that night (on the DWI charge), and no other witness could have testified to his thought processes." He further explains that "he wished to avoid testifying about whether he knew his license was suspended, because his counsel knew that the State could not prove that the appellant had received notice of the suspension of his driver's license, unless the appellant himself testified that he knew his license was suspended." He contends that once the trial court denied his motion to sever, he had to choose whether to remain silent as to both counts, or to testify as to both counts, or to testify as to the DWI count and invoke his right to remain silent as to the driving on a suspended license count, risking the likely prejudice that invoking the right would create in the jurors' minds.

We do not find appellant's argument convincing. While he argues that no other witness could testify about his "thought processes" concerning why he was driving on the parking lot that night, he never explains why his girlfriend could not have offered similar testimony. For example, it seems that she would have known her car was on the same parking lot, that she initially did not want to drive the Corvette because she was unfamiliar with it, that they were driving to her car in order to switch cars, that on the way to her car she learned how to adjust the seats on the Corvette, that she was then willing to drive it, and that they never had any intention of leaving the parking lot with appellant at the wheel.

In addition, while it is true that the Office of Driver Services "shall notify the licensee in writing" upon the suspension of his or her license, Ark. Code Ann. § 27-16-907 (c)(1) (Repl. 2004), such notice is not an element of the offense of driving on a suspended license as set out in Arkansas Code Annotated section 27-16-303 ( Repl. 2004) (quoted previously). Moreover, to the extent that appellant might be asserting a lack of knowledge, he obviously cannot do so because it is clear from his own testimony that he did have knowledge of the suspension. Furthermore, even though the two offenses involved separate elements of proof, as asserted by appellant, they arose out of the same conduct, and "the same body of evidence would be offered to prove each offense." See Kemp v. State, supra.

Finally, we do not find the legal authority cited by appellant to be persuasive either. The cases he cites are distinguishable from the instant case. For example, aside from the fact that most of the cases deal with federal rules and case law, the offenses in several of the cited cases did not arise out of the same conduct, while the offenses in the instant case did. Cross v. United States, 335 F.2d 987 (D.C. Cir. 1964), involved two robberies that were committed over two months apart; United States v. Ragghianti, 527 F.2d 586 (9th Cir. 1976) involved two bank robberies that occurred four days apart; and Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), involved five sex offenses against separate victims at different locations over a one-year period of time and they were not part of a single scheme or plan.

Moreover, United States v. Best, 235 F. Supp. 2d 923 (N.D. Ind. 2002), involved eleven separate counts of drug and firearm offenses, including firearms murder in furtherance of a drug trafficking crime where the government was seeking the death penalty. The federal district court in Best recognized that a defendant "bears a heavy burden of showing prejudice from the joinder of two or more counts." Id. at 927. The court also acknowledged that the defendant could assert his alibi defense without taking the stand -- -- "by adducing documentary evidence and witness testimony in an attempt to demonstrate that he was elsewhere during the murder," but stated that "a defendant's testimony in his own trial is unique and inherently significant." Id. at 929. The district court, in exercising its discretion, concluded that the defendant had satisfied his burden and agreed that "Defendant should be allowed -- -- without risking cross-examination on the drug-related counts -- -- to present his own uniquely compelling testimony in support of his alibi defense to the count which, after all, could result in imposition of the death penalty." Id. at 930. The possibility of the death penalty alone in the Best case distinguishes it from the case at hand.

Finally, while United States v. Jordan, 112 F.3d 14 (1st Cir. 1997), involved counts of wire fraud, money laundering, and tax evasion that stemmed from one scheme, Jordan was also able to establish "a strong showing of prejudice" caused by the joinder of the offenses. The Jordan court recognized the unique circumstances of the case and concluded that only Jordan could supply testimony of his subjective belief in order to produce a "good faith" defense to the tax charges. The court rejected the government's contention that Jordan's subjective belief was adequately before the jury in the form of his statement on his amended tax form that the income was not taxable. It also rejected the government's contention that Jordan could have proffered the testimony of his bankruptcy attorney as an effective substitute for his own testimony. The court concluded, therefore, that the joinder of the offenses likely had the effect of eviscerating Jordan's planned defense to the tax charges.

As discussed previously, appellant's contention here that no other witness could testify about his thought processes concerning why he was driving on the parking lot that night was simply not convincing. Neither does such testimony compare with that of an alibi defense in a death-penalty case or present other unique circumstances. In short, we hold that the trial court did not abuse its discretion in denying appellant's motion to sever the two charges.

Affirmed.

Pittman, C.J., and Baker, J., agree.