Albert L. Holmes v. State of Arkansas

Annotate this Case
ar05-145

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ALBERT L. HOLMES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-145

AUGUST 31, 2005

APPEAL FROM THE MISSISSIPPI

COUNTY CIRCUIT COURT,

CHICKASAWBA DISTRICT,

NO. CR-04-53(RW)]

HONORABLE RALPH EDWIN

WILSON, JR., JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Albert L. Holmes was convicted in a bench trial of fourth-offense DWI. He was sentenced to one year in a regional punishment facility to be followed by a three-year suspended imposition of sentence. Mr. Holmes now appeals from his DWI conviction, arguing that there was insufficient evidence to support the decision.

In reviewing a challenge to the sufficiency of the evidence, we affirm if, viewing the evidence in the light most favorable to the State, there is substantial evidence to support the conviction. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.

Officer Jeremy Ward testified that he was patrolling in Blytheville on the evening of December 5, 2003, and that he stopped a vehicle being driven by Mr. Holmes. Officer Ward stated that he initiated the stop because he knew that Mr. Holmes was driving on a suspended license, and also because the vehicle license had restricted tags due to a prior

DWI. Officer Ward stated that he approached Mr. Holmes and upon making contact smelled a strong odor of intoxicants. Officer Ward observed that there was a passenger seated next to Mr. Holmes.

Officer Ward asked Mr. Holmes to step out of the vehicle, and he proceeded to perform three sobriety tests. According to Officer Ward, the first test he performed was the HGN test, which Mr. Holmes failed. The next test was the one-leg stand test, where the person stands with his arms at his sides and raises one foot six inches off the ground and counts to thirty. Officer Ward testified that "Mr. Holmes was wobbling as he performed the test and he had to put his foot down several times," and that he completed the test but failed it. The final sobriety test was the walk-and-turn test, which is performed by taking nine heel-to-toe steps forward, turning around, and walking back in the same fashion. Officer Ward stated, "He did complete it, but he took steps off line and was also wobbling as he performed that test."

Officer Ward testified that, after Mr. Holmes failed the tests, he arrested him for suspicion of DWI. Mr. Holmes was transported to the police station, where he refused to submit to a Breathalyzer test. On cross-examination, Officer Ward testified that, on the evening of his arrest, Mr. Holmes stated that he was not drunk and had only had a couple of beers.

For reversal of his conviction, Mr. Holmes argues that there was no substantial evidence that he committed DWI. Mr. Holmes was convicted under Ark. Code Ann. § 5-65-103(a) (Supp. 2003), which provides, "It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle." Mr. Holmes contends that the State failed to offer substantial proof that he was intoxicated under the definition set out in Ark. Code Ann. § 5-65-102(1) (Repl. 1997),which provides:

(1) "Intoxicated" means 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[.]

In support of his argument, Mr. Holmes notes that Officer Ward did not observe weaving, speeding, or other actions that would indicate an impairment prior to stopping the vehicle. Mr. Holmes further asserts that, while Officer Ward indicated he smelled an odor of alcohol during the stop, there was no testimony as to the origin of the smell. Mr. Holmes submits that the odor could have come from the other passenger or a spilled drink in the automobile.

Mr. Holmes maintains that, while there was testimony that he failed sobriety tests, Officer Ward failed to testify as to the significance of failing the tests. He further asserts that Officer Ward failed to give the opinion that he was intoxicated, and gave no testimony about slurred speech or unsteadiness on his feet other than failing the sobriety tests. On the evening at issue, Mr. Holmes only admitted to having a couple of beers.

Mr. Holmes argues that the evidence in the record is sparse, and left the trier of fact to speculate as to whether he was influenced to a degree where his motor skills and judgment were substantially altered and resulted in a clear and substantial danger of physical injury or death to himself or others. Thus, he contends that his DWI conviction must be reversed.

Mr. Holmes's challenge to the sufficiency of the evidence is without merit. The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). In this case Officer Ward smelled alcohol and, contrary to Mr. Holmes's argument, Officer Ward indicated it was emanating from Mr. Holmes because he testified, "And in talking to him, that's when I noticed the odor of intoxicants." Moreover, Officer Ward testified that Mr. Holmes refused to take a blood-alcohol test, which is admissible on the issue of intoxication and may indicate the defendant's fear of the results of the test and consciousness of guilt. See Peterson v. State, supra.

In addition to the above factors, the State offered proof that Mr. Holmes failed three sobriety tests, and that this provided the suspicion by Officer Ward that he was intoxicated. In Felgate v. State, 63 Ark. App. 76, 974 S.W.2d 479 (1998), we held that the failure of three sobriety tests was evidence of intoxication, notwithstanding the fact that the arresting officer could not remember the specifics about the tests and did not specifically testify that he thought the appellant was intoxicated. In affirming the appellant's conviction in Felgate v. State, supra, we also relied on the fact that the appellant admitted he had consumed alcohol (one mixed drink) on the night of his arrest. Similarly, in the instant case, Mr. Holmes provided inculpatory evidence by his admission to the police that he had been drinking.

The evidence viewed in the light most favorable to the State showed that Mr. Holmes smelled strongly of alcohol; failed three sobriety tests; refused to take a Breathalyzer test; and admitted he had been drinking beer. We hold that this amounted to substantial evidence to support the trial court's finding that Mr. Holmes was intoxicated and committed the offense of driving while intoxicated.

Affirmed.

Pittman, C.J., and Vaught, J., agree.