Harold Stevie Robinson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

HAROLD STEVIE ROBINSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-909

MARCH 8, 2006

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, FIFTH DIVISION, [NO. CR2004-4008]

HONORABLE WILLARD PROCTOR,

JR., JUDGE

AFFIRMED

JOHN B. ROBBINS, Judge

Appellant Harold S. Robinson appeals his convictions for three counts of driving while intoxicated, as found after three bench trials in Pulaski County Circuit Court held on May 2, 2005. As to each of the convictions, appellant raises a single point on appeal, which is whether the State presented sufficient evidence that appellant was influenced by the ingestion of alcohol to the degree that his judgment was substantially impaired. We affirm his convictions.

The first trial concerned case number CR2003-3729, DWI-fifth offense, alleged to have occurred on May 30, 2003, at approximately 11:00 p.m. A Little Rock Police Department Officer, Roy Howard, testified that he was in his patrol car conducting radar tests on Arch Street when he observed a green Chevrolet Corsica pass by him at a rate well above the 40 m.p.h. speed limit. Officer Howard used his radar to determine that the car was going 56 m.p.h. With that, Officer Howard began pursuit of the Corsica, and Howard observed the car run off the shoulder of the road. Howard then activated his blue lights, but the Corsica drove on for at least four blocks, eventually stopping in the middle of the roadway. As Howard approached the vehicle, he asked the driver to exit the vehicle and provide his driver's license. Howard described the driver, later identified as appellant, as having stepped "widely away from the car." Appellant said he did not have a driver's license because it was suspended. When Howard asked appellant to perform field sobriety tests, appellant said, "Officer, I can't do that." Appellant began to back away, but Officer Howard placed appellant under arrest and into the patrol car. When appellant was read his Miranda rights, he laughed. Appellant refused to take the Breathalyzer test. The officer learned that appellant's license had been suspended for DWI. Officer Howard confirmed that he smelled a strong odor of intoxicants about appellant's person.

Appellant's counsel moved for directed verdict on the basis that there was no testimony that appellant's judgment was impaired. The trial judge denied the motion and found appellant guilty.

The second bench trial immediately followed in case number CR2004-4008, DWI-fifth offense, alleged to have occurred on July 28, 2004. A Camp Robinson Public Safety Officer, Scott Mann testified for the State that he was working that day at approximately 5:00 p.m. at the main gate area. Mann observed a vehicle that first sat in the parking area with loud music playing, and then he saw the driver back the car across two lanes of traffic and nearly hit another vehicle. Then, the vehicle was driven toward the entry gate to Camp Robinson. Mann made contact with appellant, who was the driver. Mann noticed a strong odor of what he thought was beer coming from the vehicle. Appellant would not make eye contact with Mann, and he smelled of intoxicants. Mann asked for identification, which appellant was unable to produce. Mann asked appellant to step out of the vehicle, and Mann saw that appellant was "very, very unsteady and had to grip onto the door frame to get his balance." Mann requested that appellant perform field sobriety tests, which appellant refused. Appellant then resisted attempts to be placed into custody, but this was accomplished with two officers assisting Mann. In a search of appellant's vehicle, two small bags of marijuana and a marijuana cigarette were recovered from the ashtray. In the rear seat area behind the driver's seat, a crack pipe was found. At the police station, appellant refused alcohol testing. The State and defense rested their case presentations. Thereupon, the trial court asked both counsels if they had any other statements, to which they replied "no." The trial judge then announced that he found appellant guilty of DWI-fifth offense, among other offenses. The last case to be heard was CR2004-1136, DWI-fourth offense, alleged to have occurred on July 30, 2003. A North Little Rock Police Department Officer, Mark Tozer, testified on behalf of the State. Officer Tozer came into contact with appellant that evening when he responded to a car accident at the intersection of Pershing and Main Streets in North Little Rock. Tozer noticed right away that appellant, the driver of one of the vehicles, was very unsteady on his feet and had an odor of intoxicants about his breath. Tozer asked appellant if he had been drinking, and appellant said, "yes." Tozer believed that there was also an open container inside appellant's vehicle. Appellant refused to take field sobriety tests. At the police station, appellant at first said he would take the Breathalyzer test but later refused. Officer Tozer opined that he would not have allowed appellant to operate a motor vehicle that night in the condition he was in because he would have posed a threat to himself or others on the roadway.

After the State rested, defense counsel moved for directed verdict on the basis that there was no testimony that appellant's judgment was impaired, and furthermore, he questioned the proof that appellant was even driving the car. This motion was denied, renewed, and denied again. The trial judge announced a finding of guilty on DWI-fourth offense, among other charges.

Appellant challenges the sufficiency of the evidence to support all three of his convictions. A motion for directed verdict is a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support a verdict. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Williams, supra; Ladwig, supra. In making this determination, we review the evidence in the light most favorable to the State, and consider only the evidence that supports the verdict. Williams, supra; Ladwig, supra.

At the outset, we note that appellant cannot challenge the sufficiency of the evidence to support his conviction with regard to case number CR04-4008 because he did not move for directed verdict. The failure of a defendant to move for a directed verdict at the close of the case waives any question pertaining to the sufficiency of the evidence. Ark. R. Crim. P. 33.1(2005). Therefore, we will not consider any argument pertaining to that conviction.

Moving to the other two convictions, we hold that the State presented sufficient evidence to support the convictions for DWI. The relevant statute provides that it is unlawful for a person to operate or be in actual physical control over a vehicle if he is "intoxicated." Ark. Code Ann. § 5-65-103 (Repl. 2005).1 "Intoxicated" means "influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant 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(2) (Repl. 2005). Appellant contended to the trial court and to us in his appellate brief that the State failed to prove that he was intoxicated to such a degree that his judgment was substantially altered or impaired. The State counters that the circumstantial proof shows to the contrary. We agree with the State.

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. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Opinion testimony regarding intoxication is admissible. Id. Furthermore, the refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant's fear of the results of the test and the consciousness of guilt. Id. See also Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003) (holding sufficient evidence supported DWI fifth conviction where Peterson failed the field sobriety tests and refused to submit to a Breathalyzer test, officers smelled intoxicants on appellant's person and opined that appellant was intoxicated, and appellant had four prior driving while intoxicated convictions). Compare Felgate v. State, 63 Ark. App. 76, 974 S.W.2d 479 (1998).

In case number CR2003-3729, DWI-fifth offense, appellant was accused of speeding in the area of Arch Street in Little Rock late at night. In case CR2004-1136, DWI-fourth offense, appellant was involved in an accident at an intersection in North Little Rock. In both of those cases, appellant refused sobriety testing and Breathalyzer tests. The officers involved in both cases opined that appellant was intoxicated by the smell of intoxicants emanating from appellant, and by his unsteadiness on his feet. In the accident case, appellant admitted that he had been drinking, and the officer recalled seeing an open container in his vehicle. In the speeding case, the officer additionally observed appellant driving erratically before he succumbed to the police officer's attempts to pull him over. The foregoing evidence provide sufficient evidence upon which the fact finder could conclude that appellant was intoxicated.

We affirm appellant's convictions.

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

1 The newer versions of the relevant DWI statues contain no material changes to the law in effect for the DWI crimes appellant was charged with in 2003 and 2004. Therefore, we cite to the most recent versions of the statutory provisions.