Michael Dillon v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MICHAEL DILLON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-917

FEBRUARY 8, 2006

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION,

[NO. CR04-4687],

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Michael Dillon was convicted in a bench trial of driving while intoxicated. He was subsequently ordered to pay $250 in fines, together with court costs, and he received a one-day sentence of imprisonment in the Pulaski County Jail. His sole contention on appeal is that the evidence was insufficient to show that he was in actual control of a vehicle within the meaning of our DWI statute, Ark. Code Ann. § 5-65-103 (Supp. 2003). We affirm.

At trial, Deputy John Howard testified that, around 3:00 a.m. on April 27, 2004, he received a call to an accident at the location of Noble Road and Batesville Pike in Pulaski County. When he arrived at the scene, he made contact with Dillon, who was walking approximately a quarter of a mile from the accident. Howard said that he found Dillon's vehicle, a red Ford pickup truck, on Noble Road. According to Howard, the truck had been "wrecked" and was "off the road against a tree." Howard also said that emergency personnel were already on the scene when he arrived and that the ambulance was "creeping down" Noble Road following Dillon.

Howard stated that, when he asked Dillon what had happened, Dillon said that he was coming from a club in the area and that he was driving. According to Howard, Dillon also admitted that he had been drinking. Howard testified that Dillon said he was "driving his truck pretty fast" when he "lost control of it" and "struck a tree." Howard said that Dillon smelled of intoxicants, and that no one other than Dillon, police, and emergency personnel were at the accident scene. On cross-examination, Howard said that he did not see Dillon behind the wheel of the truck.

Deputy Mark Swagerty testified that he was also on duty around 3:00 a.m. on the morning of the accident. He said that he came into contact with Dillon about a "quarter-mile [to a] half-mile down the road" from the accident scene. Swagerty stated that Dillon was "ranting and raving" and "saying that he was drunk." Swagerty said that Dillon told him that he was coming home from a strip club and "had a wreck." According to Swagerty, Dillon also talked about "flying" in his truck.

Swagerty said that Dillon was walking between his (Dillon's) truck and his residence, which was also located on Noble Road. According to Swagerty's testimony, Dillon told officers that he was driving 100 miles per hour, missed the curve, and hit a tree. Swagerty also said that Dillon admitted to drinking at the club. In addition, Swagerty testified that Dillon had bloodshot eyes, that he was staggering and unsteady on his feet, that he smelled of intoxicants, and that his speech was slurred. Swagerty said that, based upon these observations, he administered field sobriety tests and later arrested Dillon for driving while intoxicated.

During cross-examination, Swagerty pointed out that the accident report said "subject stated he was drunk and wrecked." Swagerty claimed that this meant that Dillon was driving, and Swagerty opined that, based upon the information that Dillon gave at the scene, it was not possible that someone else was driving. Swagerty admitted that he did not see Dillon behind the wheel.

On re-direct examination, Swagerty said that there was no one other than Dillon, police officers, and emergency personnel at the accident scene. He also made reference to the Arkansas Motor Vehicle Collision Report on the accident, which stated that Dillon told Swagerty that he was driving and that he lost control of his vehicle prior to the accident.

Dillon then moved for a directed verdict on the grounds that the State failed to prove that he was in control of the vehicle. The court denied the motion.

David Duran, a friend of Dillon's, testified for the defense. He said that, just before 1:00 a.m. on the morning of the accident, Dillon called him at home and said that he had too much to drink and did not want to drive his vehicle. Duran stated that Dillon asked him to come and pick him up at a strip club. Duran said that he arrived at the club around 2:00 a.m., that he saw Dillon sitting in the passenger seat of his pickup truck, and that there was a "young lady" sitting in the driver's side.

Duran testified that Dillon said that the lady was going to drive him home. Duran said that the woman "looked like she was fine," so he went home. He also said that Dillon was "not in operation of the vehicle" when Duran saw him. According to Duran, Dillon's truck and another car, which looked like a Camaro, pulled out of the parking lot of the strip club en route to Dillon's house. Duran said that Dillon was not operating the truck.

Dillon then testified in his own defense. He denied being in physical control of his vehicle after leaving the strip club. He said that he went to the club, had some drinks, and called Duran around 12:45 a.m. or 12:50 a.m. He claimed that he waited for Duran until approximately 2:00 a.m. and then "figured he wasn't going to show up," so he "got into the passenger's side with a girl [he] met at the club." According to Dillon, the girl said that she would drive him home and that her friend would follow. He said that when Duran showed up, he asked if Duran wanted to come over to his house, but Duran said no and went home.

Dillon claimed that when he left the club, a "young lady" was driving his truck. He also claimed that, after the accident, the "young lady" got out of his truck and left the scene with her friend, who was following in a Camaro. He denied telling officers that he was in control of the vehicle at the time of the accident. He also said that he never told the officers about the girls or the Camaro after the accident.

Dillon renewed his motion for a directed verdict, which was again denied. The trial court subsequently found Dillon guilty of driving while intoxicated.

Arkansas Code Annotated section 5-65-103(a) makes it unlawful "for any person who is intoxicated to operate or be in actual physical control of a motor vehicle." On appeal, Dillon claims that the State failed to prove that he was in "actual physical control" of his automobile within the meaning of this statute.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Marshall v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Jan. 18, 2006). Evidence, direct or circumstantial, is sufficient if it is substantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. This court will only consider evidence that supports the verdict. Id.

Circumstantial evidence can support a finding of guilt in a criminal case if it excludes every other reasonable hypothesis consistent with innocence. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Whether circumstantial evidence excludes every hypothesis consistent with innocence is for the factfinder to decide. Id. Upon review, an appellate court must determine whether the factfinder resorted to speculation and conjecture in reaching its decision. Id.

To support his contention that the evidence was insufficient to support his conviction, Dillon argues that there is evidence from Duran that directly rebuts the State's circumstantial evidence; thus, he claims that "it cannot be said with any possible degree of reasonable certainty, that the state ruled out every reasonable hypothesis." He also claims that, in view of Duran's unbiased testimony that a young lady was driving the car, every other reasonable hypothesis is not excluded. Citing Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), Dillon asserts that "only implication or conjecture puts [him] behind the wheel," but direct evidence "puts him in the passenger seat."

Furthermore, citing Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985), Dillon argues that there are three ways to prove operation of a motor vehicle for purposes of the DWI statute: (1) observation by the officer; (2) evidence of intent to drive after the moment of arrest; and (3) a confession by the defendant that he was driving. He claims that, in this case, there is no evidence of observation by the officer that he (Dillon) was driving or of his intent to drive after the moment of arrest; he further argues that the trial court should not have considered his "confession" that he was driving, in view of the situation and the fact that the confession was made "out of court while he was dazed from a wreck and extremely intoxicated."

To support this argument, Dillon points out that he was extremely intoxicated (almost double the legal limit), that he had sustained a hit to his head, and that officers admitted that he was "ranting and raving and drunk." He also cites Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973) (which internally quotes People v. Schompert, 226 N.E.2d 305 (N.Y. 1967)), for the proposition that his intoxicated "confession" was not sufficiently reliable to allow it to be the sole evidence upon which the conviction stands. In addition, he points to Ark. Code Ann. § 16-89-111(d), which provides that "[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed." Claiming that "there was no other proof that the offense was committed here" and that Duran's testimony "totally rebuts" the testimony of the officers, Dillon argues that the State did not prove its case beyond a reasonable doubt and asks this court to reverse his conviction.

We agree with the State that substantial evidence supports Dillon's conviction for driving while intoxicated. First, Dillon's arguments that his "confession" was unreliable and was not corroborated are not preserved for appeal because they were not raised as part of his directed-verdict argument below. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004) (recognizing that an appellant is bound by the scope and nature of the arguments made at trial). Furthermore, to prove actual control within the meaning of Ark. Code Ann. § 5-65-103(a), there is no requirement that an officer actually witness an intoxicated person driving or exercising control of a vehicle, see Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994), and statements by an appellant admitting that he was driving constitute substantial evidence that he exercised control over the vehicle. See Azbill, supra (recognizing that there are three ways to prove operation of a motor vehicle for purposes of the Arkansas DWI statute, one of which is through a confession by the defendant that he was driving).

Here, the evidence viewed in the light most favorable to the State reveals that Dillon stated at the scene that he was "driving his truck pretty fast" when he "lost control of it" and "struck a tree." Officer Swagerty specifically testified that Dillon told officers he was driving 100 miles per hour, missed the curve, and hit a tree. This was clearly sufficient to support Dillon's conviction. Though Dillon claims that Duran's "unbiased testimony" that Dillon was not driving was sufficient to rebut the State's evidence, the trial court was free to reject Duran's testimony and to believe the State's account of the facts. See Ross, supra. We therefore hold that the evidence was sufficient to support Dillon's conviction for driving while intoxicated, and we affirm the decision of the trial court.

Affirmed.

Hart and Neal, JJ., agree.