Larry D. Shanks v. State of Arkansas

ar04-728

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR04-728

April 27, 2005

LARRY D. SHANKS AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CR02-529-I]

V. HON. JOHN HOMER WRIGHT, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Appellant Larry D. Shanks appeals from his conviction for criminally negligent homicide in the deaths of Robert and Sandra DeClercq, and he challenges the sufficiency of the evidence. Because appellant failed to renew his motion for directed verdict at the close of the evidence, his argument was not preserved for appellate review. Therefore, we affirm.

The DeClercqs were fatally injured when a Cobalt ski boat operated by appellant crashed into the DeClercqs' party barge. Appellant was charged by criminal information on two counts of Class A misdemeanor negligent homicide pursuant to Ark. Code Ann. § 5-10-105(b)(1) (Repl. 2003).1 At trial, Mike Hale testified that he and his wife Joyce went to Lake Hamilton to ride their jet skis and to see the DeClercqs. Around 5:00 or 6:00 p.m., Mr. DeClercq wanted to show the Hales a condominium he was considering buying. The grouptook the DeClercqs' party barge, which Hale described as "pretty slow." After they viewed the condo, the DeClercqs gave the Hales a ride back to their rented condo. By this time, Mr. DeClercq was drinking his third beer. At approximately 9:00 p.m., Hale noticed a ski boat "banking around to our right, and sort of rared up a bit." Mr. DeClercq started to move the barge to the left to try to put some distance between the barge and the ski boat, as it appeared that the ski boat would pass on the right side. The distance closed very quickly, and Mr. Hale did not realize that the boats were going to hit until the last second. The collision destroyed the right side of the barge. Mr. Hale testified that the lights were on the barge when he was riding but that it was "pitch dark" after the collision. After he pulled his wife from under debris, Mr. Hale saw Mr. DeClercq in the back of the boat. Mr. DeClercq had no pulse. Then he and his wife attempted to look for Mrs. DeClercq but could not find her.

Joyce Hale's testimony was similar to her husband's. She testified that she and her husband had dinner with the DeClercqs and that, while it was beginning to get dark, the boat was lit to where they could see other boats well. She noted that Mr. DeClercq had at least three beers. She first noticed the ski boat when it was about four hundred yards away from the barge. Mrs. Hale testified:

The Cobalt seemed to straighten out, then pointed its nose toward us, and Robert moved to the left again. We weren't really afraid that it was going to hit us at that point. It looked like he was going to go down our right side. At the last second, it turned on us.

Mrs. Hale noted that the ski boat destroyed the side of the boat where the DeClercqs had been sitting. Mr. and Mrs. Hale tried to look for Mrs. DeClercq, but because no one was wearing life jackets, Mrs. DeClercq had nothing to hold her up. On cross-examination, Mrs. Hale testified that she had seen Mr. DeClercq drink in the past but had never seen him intoxicated. She had given Mr. DeClercq his sixth alcoholic drink before the impact. Mrs. Hale also testified that all of Mr. DeClercq's movements were to the left, and on recross-examination, she testified that if Mr. DeClercq had turned to the right, the barge would have been moving toward the ski boat.

Garland County Deputy Sheriff Mike Roberson assisted in the search for Mrs. DeClercq's body in Lake Hamilton. The dive team found her body on the second day of the search. It appeared that Mrs. DeClercq sank straight to the bottom of the lake after impact and that she was unconscious immediately upon impact.

Anthony Hall, appellant's neighbor, testified that he and appellant left his dock at approximately 8:00 p.m. in his white 2001 Cobalt ski boat. On the way back to Hall's dock, appellant was driving the boat, as he had done several times since Hall purchased it in January 2002. Both had been drinking beer, but Hall was unsure how many they had drunk. As a result of the accident, Hall suffered a broken back, a herniated disc, and a head injury. On cross-examination, Hall testified that he did not remember seeing the barge, with or without lights, prior to the impact. He did not know how fast appellant was driving. Hall also testified that if he had thought appellant was intoxicated, he would not have let him drive the boat.

Jim Alguire testified that he and his family were on Lake Hamilton on July 22, 2002. He testified that he was coming from Lakeland Point when he saw a white ski boat coming from behind him. He saw two people in the boat, one standing up driving and the other in the passenger area. The boat slowed to go under the Hwy. 7 South bridge, then accelerated again. He lost sight of the boat soon after. Alguire testified that his wife later heard someone screaming. He turned off his boat and heard a lady's voice coming from his left. He looked and saw a party barge with no lights on. As he approached the barge, a lady on the boat told him that they had been hit by a boat and had one dead and one missing. On cross-examination, Alguire testified that, when he was first aware of the ski boat, he just saw the red and green lights in the front and that the driver was standing up, probably to get a better lookout. He did not see the party barge until after the impact.

Todd Green was working at Kahuna Bay Boat and Jet Ski Rental on the day of the accident. He testified that at 9:00 p.m., he used a rental boat to tow a Cobalt ski boat to his dock. Green stated that the two men in the boat appeared to be intoxicated and that "I saw a bunch of silver cans floating around the boat, and the men seemed to not know what was going on." Green remembered that appellant stumbled on one of the officer's feet when he got off the boat. On cross-examination, Green testified that he was unaware that Hall had a broken back or concussion and that he did not notice any injuries to either of the two men.

Garland County Sheriff's Deputy Charles Kirk testified that he was called to the scene of the boating accident. He noticed that when appellant got off the boat, he appeared to be intoxicated, had a strong odor of alcohol on his breath, was unsteady on his feet, and had glassy, bloodshot eyes. Kirk testified that appellant did not appear to have any visible injury and that appellant said he was not hurt. He did not arrest appellant at the time because investigators were at the scene.

Chris Fennewald testified that he was at Lake Hamilton with friends when he saw the accident. Immediately after the accident, he and his friends went to the party barge. The barge was stuck in reverse gear and going in circles. When they went to the ski boat, "the first thing out of the guy's mouth was, like, `what did I do?'" Fennewald testified that the men on the ski boat seemed to be intoxicated.

Garland County Sheriff's Deputy Neil Parliament asked appellant to go to the hospital after the accident. He advised appellant of his rights, and appellant agreed to go to the hospital. At the time, Parliament smelled alcohol on appellant's breath. Parliament noted that appellant had a head injury and that appellant refused medical treatment but that someone had put a bandage on his head. While at the hospital, Parliament administered several field sobriety tests, which appellant failed. In Parliament's opinion, appellant was intoxicated. While appellant had previously consented to a blood test, he later refused on the advice of his attorney.

Tod Johnson testified as an expert in the field of boating accident reconstruction. He testified that the barge had its lights on at the time of the impact. He presented several diagrams at trial. The diagrams showed that the party barge rotated as the ski boat went down the side because the barge was lighter than the ski boat. Once the ski boat hit the barge and started coming down the side, the barge rotated and created a ramping situation. The barge was initially pushed into the water due to the ski boat's weight, but then came back to the surface, pushing the front of the ski boat up further. Regarding the "rules of the road," Johnson testified that one must turn to starboard (the right) to avoid a collision. The exception to this general rule is that one can move to the left if turning to the right would put one in more harm's way. Based upon his observations and statements from witnesses, Johnson opined that the operator of the ski boat was at fault. On cross-examination, Johnson testified that boaters have the right to expect that other boaters will be operating according to the rules and to expect that others will not operate a boat after having five or six drinks of alcohol. The fact that Mr. DeClercq was drinking did not factor into his analysis, and he could not say whether Mr. DeClercq's drinking possibly contributed to the accident. He opined that Mr. DeClercq was trying to avoid an accident and that Mr. DeClercq did not fail to keep a proper lookout.

Betty Partridge, appellant's fiancée, testified in appellant's defense. She testified that on July 22, 2002, she was with appellant for most of the day. Hall came by and offered to take appellant home. Partridge testified that appellant left at about 6:45 p.m. and that he had no alcohol at that point. Later that night, she learned that appellant was in the hospital. Appellant was in bed for two weeks because of his injuries.

The State submitted the deposition testimony of William Dobson, a marine accident investigator and reconstructionist specializing in inland waterways and small watercraft. He began his investigation on August 3 by taking photographs and measurements as well as considering the Hales' statements. Dobson believed that speed was a factor in the accident. He had no opinion about how fast the ski boat was traveling when the Hales first spotted it, but he believed that the ski boat had to have been traveling over thirty miles per hour in order to go over the party barge. In his investigation, Dobson did not see anything that would have obscured visibility when the boats became visible to each other.

Dobson opined that appellant was one hundred percent at fault; however, if it were proven that appellant was not under the influence of alcohol at the time of the accident, his opinion might change. He placed none of the fault on Mr. DeClercq. Dobson thought that Mr. DeClercq had .06 grams of alcohol in his blood and did not know that the actual measurement was .13 grams. Dobson noted that if the measurement were accurate, then Mr. DeClercq would have been legally intoxicated; however, that would not change his opinion that Mr. DeClercq had no responsibility for the accident. Later in the deposition, Dobson testified that a collision still would have occurred had Mr. DeClercq turned right instead of left and that Mr. DeClercq would have put his party barge in more danger had he turned right.

Appellant submitted the deposition testimony of William Kyle, lead inspector for Marine Consulting, Inc. Kyle testified that the initial point of impact was the ski boat striking the party barge's starboard side. The second point was between the ski boat's starboard-side bow and the barge's starboard-forward bow. Based upon his investigation and statements by the Hales, he testified that Mr. DeClercq was obligated to yield the right-of-way to the ski boat. He stated, "they should have turned to the right, slowed down, gone to neutral or gone in reverse in order not to cross the path of the Cobalt."

Appellant also presented the deposition testimony of Robert Charlesworth, former marine patrol supervisor with the Garland County Sheriff's Office. He went to the scene of the accident the night after it happened. He saw debris in the water, ten to twelve beer cans, styrofoam, and a life preserver, but no boats. He first assisted in the search for Mrs. DeClercq. Then, he went to the Kahuna Bay docks, where he found both boats. He opined that the ski boat had the right-of-way based on the Federal Rules of Navigation, and that the standard procedure is for a boat to turn to the right to avoid a collision. He did not know whether the ski boat turned or attempted to turn to the right.

After considering the testimony, the trial court, sitting without a jury, found appellant guilty of two counts of negligent homicide. The court sentenced appellant to twelve months' imprisonment on each count with the sentences to be run concurrently. This appeal followed.

For his sole point on appeal, appellant argues that the trial court erred in finding him guilty of negligent homicide. Specifically, he argues that the State failed to prove beyond a reasonable doubt that he was negligent, as defined in Ark. Code Ann. § 5-2-202 (Repl. 1997). However, appellant's argument is not preserved for appellate review. Rule 33.1 of the Arkansas Rules of Criminal Procedure (2004) provides, in pertinent part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. . . .

Here, the trial court considered deposition testimony from three witnesses: one for the State and two for appellant. Although Partridge testified immediately after Johnson, the trial court did not consider the State's case closed until it had read the deposition testimony of the State's expert witness. Appellant made his motion for directed verdict at this point. Neither the State nor appellant objected to this procedure, and it is not an issue before us on appeal.

However, after the trial court denied his motion for directed verdict, appellant presented deposition testimony of two witnesses and then closed his case without renewing his motion for directed verdict. Under Rule 33.1, failure to renew a directed-verdict motion waives the question of sufficiency of the evidence. See also McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003). Appellant's failure to renew his motion precludes us from addressing his argument. Accordingly, we affirm his conviction.

Affirmed.

Gladwin and Baker, JJ., agree.

1 Appellant was originally charged under subsection (a) of the statute, which provides that a person commits negligent homicide if he or she negligently causes the death of another person as a result of operating a vehicle, an aircraft, or a watercraft while intoxicated or with a blood-alcohol level of .08. Negligent homicide under that subsection is a Class C felony. See Ark. Code Ann. § 5-10-105(a)(2). Consequently, to the extent that the State argued in its brief that appellant was guilty under this subsection, that argument is misplaced.