Williams v. State
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CACR 08-1413
Opinion Delivered
JAMES O. WILLIAMS
APPELLANT
V.
September 2, 2009
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT,
[NO. CR-2007-641-T]
HONORABLE GRISHAM PHILLIPS,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
M. MICHAEL KINARD, Judge
James O. Williams appeals from his convictions for first-offense driving while
intoxicated (DWI) (Ark. Code Ann. § 5-65-103), refusal to submit to a chemical test (Ark.
Code Ann. § 5-65-205), and contempt of court. Following a jury trial, he was sentenced
to six months’ imprisonment in the county jail for DWI and thirty days for contempt, to
be served consecutively. A $1000 fine was imposed. He asserts the following two points
on appeal: (1) the trial court erred in permitting his prior refusal-to-submit violations to
be admitted into evidence during the sentencing phase of the trial; (2) the trial court erred
in finding him guilty of criminal contempt without first obtaining a knowing, intelligent,
and voluntary waiver of his right to a trial by jury. We affirm.
On December 8, 2006, appellant was arrested in Saline County. He was found
guilty in Saline County District Court, Benton Division, of driving with a suspended
license due to DWI, a violation of the Omnibus DWI Act (first offense), disorderly
conduct, and refusal to submit to a chemical test. Appellant appealed to the Saline County
Circuit Court, where he received a trial de novo in front of a jury,1 which found him
guilty of DWI (first offense) and refusal to submit to a chemical test.
Because of
statements made by appellant during a discussion of an appeal bond, the circuit court
found appellant to be in contempt of court and sentenced him to an additional thirty days’
imprisonment in the county jail. Appellant timely filed a notice of appeal.
Appellant does not challenge the sufficiency of the evidence. Briefly, the facts are
these. Deputy Ted Berg of the Saline County Sheriff’s Department was working DWI
task force around 1:30 a.m. on December 8, 2006. Officer Berg testified that he noticed a
vehicle pulling out onto the road that did not have a license plate light on the rear, so he
turned around to follow it. The suspect, appellant, pulled over before Officer Berg had
turned on his blue lights; he got out of his vehicle and placed his hands on his vehicle
before Officer Berg could get out of his patrol car. Upon exiting his patrol car, Officer
Berg could smell the odor of intoxicants coming from appellant. The first thing appellant
said was that he was “not taking none of [Officer Berg’s] tests.” Appellant in fact refused
both the breathalyzer and field sobriety tests, and Officer Berg placed him under arrest.
Officer Berg testified that in addition to the strong odor of intoxicants, appellant had
slurred, slow speech and was “very uncooperative” at the jail.
The charges of driving with a suspended license due to DWI, disorderly conduct, and defacing
objects of public respect (less than $500) were nolle prossed.
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Appellant’s first point on appeal is that the trial court erred in permitting his prior
violations to be admitted into evidence during the sentencing phase of the trial. Appellant
contends that while the statute concerning sentencing evidence allows evidence of a
defendant’s prior felonies and misdemeanors to be admitted during the sentencing phase, it
does not authorize prior violations to be admitted. Arkansas Code Annotated section 1697-103 (Repl. 2006) provides in pertinent part:
Evidence relevant to sentencing by either the court or a jury may include, but is not
limited to, the following […]:
(2) Prior convictions of the defendant, both felony and misdemeanor. The jury may
be advised as to the nature of the previous convictions, the date and place thereof,
the sentence received, and the date of release from confinement or supervision
from all prior offenses;
....
(5) Relevant character evidence;
(6) Evidence of aggravating and mitigating circumstances. The criteria for departure
from the sentencing standards may serve as examples of this type of evidence[.]
(Emphasis added.) In the case at hand, the judge allowed into evidence, over the defense’s
objection, a hand-written document summarizing appellant’s previous convictions, which
included two prior refusal-to-submit convictions. The exhibit listed the following: (1) a
4/22/99 conviction for refusal to submit to a chemical test; (2) 5/10/99 convictions for
DWI and refusal to submit to a chemical test; (3) a 7/26/03 conviction for DWI; (4)
4/19/04 convictions for possession of methamphetamine (“C” felony), unauthorized use
of another person’s property to facilitate a crime (“B” felony), and possession of drug
paraphernalia (“C” felony); (5) an 11/15/07 conviction for DWI.
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Appellant argues that his two prior refusal-to-submit convictions should not have
been allowed into evidence, as they were neither felonies nor misdemeanors, which are
specifically allowed into evidence under the statute. Appellant correctly argues that refusal
to submit to a chemical test is a “violation” because no term of imprisonment or
confinement is authorized upon conviction. See Ark. Code Ann. § 5-1-108(b) (Repl.
2006).2 Appellant characterizes this point as one of statutory interpretation to be reviewed
de novo; the State cites to case law stating that a circuit court’s decision to admit evidence
in the penalty phase of a trial is reviewed for abuse of discretion. We apply an abuse-ofdiscretion standard to a trial court’s decision to admit evidence in the penalty phase of a
trial. See Crawford v. State, 362 Ark. 301, 208 S.W.3d 146 (2005).
Appellant contends that if the legislature had intended for violations to be admitted
during the sentencing phase of the trial, “it would have plainly so stated.” Appellant’s
argument ignores that the statute expressly states that admissible evidence is not limited to
the types of evidence listed. Furthermore, it would be contrary to common sense to allow
all other types of criminal convictions except “violations.” We will not interpret a statute,
even a criminal one, so as to reach an absurd conclusion that is contrary to legislative
intent. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003).
Our supreme court has stated that “[t]his statutory scheme [of section 16-97-103]
simply allows the jury or court to exercise its discretion in considering all evidence
relevant to sentencing.” Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997). The
Ark. Code Ann. § 5-65-205 (Supp. 2007) provides that upon refusal to submit to a chemical test a
person’s driving privileges will be suspended.
2
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Arkansas Rules of Evidence apply during the penalty or sentencing phase of trial. Buckley
v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Relevant evidence is evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence. Ark. R.
Evid. 401. Pursuant to section 16-97-103, certain evidence is admissible at sentencing that
would not have been admissible at the guilt phase of the trial. Buckley, supra. Evidence of
uncharged and subsequent misconduct has been held admissible as relevant to sentencing.
See, e.g., Rhodes v. State, 102 Ark. App. 73, 281 S.W.3d 758 (2008) (fifteen-year-old girl’s
testimony that she also had been raped by appellant–for which appellant was not on trial–
was admissible during penalty phase of trial as relevant evidence of appellant’s character);
Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998) (finding no error in trial court’s
admission of prior uncharged misconduct during sentencing phase); Crawford, supra
(evidence of subsequent drug offenses admissible during sentencing).
Past criminal
behavior proven by a preponderance of the evidence may be considered by a sentencing
court even where no conviction resulted. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392
(2000). Thus, a broad range of evidence has been held to be admissible during the
sentencing phase of trials. The evidence of appellant’s prior convictions for refusal to
submit to a chemical test was relevant to his sentencing as either character evidence or
aggravating circumstances.
We hold that admitting appellant’s prior refusal-to-submit
violations was not an abuse of the circuit court’s discretion.
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After sentencing, the trial court raised the issue of setting an appeal bond.
Appellant inquired whether he was going to have the same lawyer on appeal and told the
judge twice “you must of lost your mind” to “saddle” him with the same lawyer on
appeal. The court held him in contempt of court and assessed an additional thirty-day
sentence for the contempt. Appellant’s second point on appeal is that the trial court erred
in finding him guilty of criminal contempt without first obtaining a knowing, intelligent,
and voluntary waiver of his right to a trial by jury. However, the point is moot, as
appellant concedes in his brief that he has already served his sentence for the criminal
contempt. The general rule regarding contempt orders is that where the terms of a
contempt order have been fulfilled, the issue of the propriety of the contempt order is
moot. Swindle v. State, 373 Ark. 518, 285 S.W.3d 200 (2008). We decline to address
appellant’s point under either of the two exceptions to the mootness doctrine. Id.
Affirmed.
HENRY and BAKER, JJ., agree.
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