Billie Baxter v. State of Arkansas

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ar04-759

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

BILLIE BAXTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-759

June 22, 2005

APPEAL FROM THE CLARK

COUNTY CIRCUIT COURT

[CR-03-136]

HONORABLE JOHN ALEXANDER

THOMAS, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Billie Baxter was convicted in Clark County Circuit Court of DWI-fourth offense. He was sentenced to one year's imprisonment in the Arkansas Department of Correction; one year of community service; and fined $1000. Baxter now appeals that conviction to this court, arguing that the trial court erred in denying his motion for directed verdict. We affirm his conviction.

When an appellant challenges the sufficiency of the evidence to support a conviction on appeal, this court's test is whether there is substantial evidence to support the verdict. Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. In determining whether it is substantial, evidence is viewed in the light most favorable to the State, considering only the evidence that supports the verdict. Id.

The State called one witness, Officer Nathan Thomason of the Caddo Valley Police Department. Officer Thomason testified that he stopped Baxter's vehicle a little after midnight on July 2, 2003, because Baxter flashed his bright lights at Thomason, he crossed over the yellow line after he passed Thomason, and he then continued to drive down the middle of the highway. Thomason said that as he approached the car, Baxter got out without being asked and stumbled into the road; that he, Thomason, could smell the odor of intoxicants; and that Baxter's eyes were bloodshot, watery, and red. He further stated that Baxter was having trouble standing on his own and had to use his car to support himself.

Thomason asked Baxter to perform several field-sobriety tests; Baxter performed the "ABC" test to Thomason's satisfaction, but he had trouble with the "finger-to-nose" test. Thomason testified that Baxter had trouble following instructions on how to do that test; that he seemed disoriented and confused; that on his first attempt to touch his nose, Baxter touched between his eyes; that on his second attempt, Baxter touched under his right eye; and that during the test, Baxter began leaning forward and Thomason had to catch him. At the end of direct examination, the prosecutor asked Thomason if he had formed a conclusion based upon his observations and the field-sobriety tests he had conducted. Thomason responded that he had formed a conclusion, stating, "Concluded that he was intoxicated - he appeared to be intoxicated." Thomason testified that he felt Baxter was too unsafe to try any more field-sobriety tests on the side of the road because he was already having trouble following the instructions on the other tests. On cross-examination, Thomason admitted that a field-sobriety test does not determine intoxication, and failing a field-sobriety test does not necessarily mean that a person was intoxicated.

It is unlawful "for a person who is intoxicated to operate or be in actual physical control of a motor vehicle." Ark. Code Ann. § 5-65-103(a) (Supp. 2003). "Intoxicated" is defined as "influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver's reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians." Ark. Code Ann. § 5-65-102(1) (Repl. 1997).

A DWI conviction is not dependent solely upon blood-alcohol content. See Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004); Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995); White v. State, 73 Ark. App. 264, 42 S.W.3d 584 (2001). An officer's observations can constitute competent evidence to support a conviction for DWI. See Johnson v. State, 337 Ark. 196, 987 S.W.2d 694; White v. State, supra. Opinion testimony regarding intoxication is admissible. See Johnson v. State, supra; Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997).

In the present case, Baxter seizes on the fact that the officer stated that Baxter "appeared" to be intoxicated and argues that such a characterization is not sufficient to support his conviction for DWI. We disagree. Officer Thomason specifically testified that he concluded that Baxter was intoxicated. Furthermore, Officer Thomason testified about Baxter crossing over the yellow line and driving down the middle of the highway; that Baxter "stumbled" out of his car and into the road; that Baxter smelled of intoxicants and his eyes were bloodshot and watery; that Baxter had to use his car to hold himself upright; and that Baxter could not perform the finger-to-nose field-sobriety test. All of this evidence, when viewed in the light most favorable to the State, supports Baxter's DWI conviction.

Affirmed.

Griffen and Roaf, JJ., agree.