Stewart v. State
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Cite as 2010 Ark. App. 584
ARKANSAS COURT OF APPEALS
DIVISION IV
CACR09-1357
No.
Opinion Delivered
MELVYN STEWART
APPELLANT
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
[No. CR-09-133-2]
HONORABLE PHILLIP H.
SHIRRON, JUDGE
V.
STATE OF ARKANSAS
September 15, 2010
APPELLEE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Melvyn Stewart was convicted by the Hot Spring County Circuit Court of driving
while intoxicated (second offense) and refusal to submit to a chemical test. On appeal, Stewart
argues only that the State presented insufficient evidence supporting the driving-whileintoxicated conviction.1 We affirm.
On January 2, 2009, at approximately 4:11 p.m., Rockport Police Officer Nathan
Thomason was on patrol and noticed an expired license plate on a blue Jeep Liberty. After
Stewart makes two conclusory statements in the introductory portions of his brief
without accompanying argument. First, his point on appeal states that the trial court erred in
“increasing jail time” from seven to thirty days. Second, his statement of the case asserts that
he appeals his refusal-to-submit conviction. Mere conclusory statements in a point for appeal
constitute a waiver, and the issue will not be addressed on appeal. Estacuy v. State, 94 Ark.
App. 183, 188, 228 S.W.3d 567, 571 (2006). We also apply this holding to conclusory
statements in the statement of the case.
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Cite as 2010 Ark. App. 584
confirming with police dispatch that the license plate was expired, Officer Thomason stopped
the vehicle. The officer obtained the driver’s license and proof of insurance from the driver
and identified him as Stewart. While speaking with Stewart, the officer smelled a strong odor
of intoxicants and observed that Stewart’s eyes were red and watery. Officer Thomason called
Arkansas State Police Trooper Zack Owens to the location to perform a portable breath test
(PBT) on Stewart. Trooper Owens testified that he also observed Stewart to have bloodshot
and watery eyes and that he could smell the odor of intoxicants from Stewart’s mouth when
he blew into the PBT. After the PBT was performed, Officer Thomason was unable to
perform additional sobriety tests because Stewart became agitated and because of his close
proximity to the highway. Stewart was arrested. According to Officer Thomason, while in
custody Stewart refused to submit to blood-alcohol-content testing. Both Officer Thomason
and Trooper Owens testified that it was their opinion that Stewart’s condition precluded him
from safely operating a motor vehicle. Following the testimony of Officer Thomason and
Trooper Owens, the State rested. Stewart elected not to testify. The trial court found Stewart
not guilty of driving with a suspended license but found him guilty of the remaining two
charges.
On appeal, Stewart argues that there was insufficient evidence to support the
conviction for driving while intoxicated. In reviewing the sufficiency of the evidence on
appeal, we view the evidence in the light most favorable to the State and affirm if the verdict
is supported by substantial evidence. Springston v. State, 61 Ark. App. 36, 38, 962 S.W.2d 836,
838 (1998). Substantial evidence is evidence of sufficient force and character that it will, with
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Cite as 2010 Ark. App. 584
reasonable certainty, compel a conclusion one way or the other without resort to speculation
or conjecture. Springston, 61 Ark. App. at 38, 962 S.W.2d at 838. We need consider only that
testimony that supports the verdict of guilt. Id., 962 S.W.2d at 838.
The statute prohibiting driving while intoxicated, Arkansas Code Annotated section
5-65-103 (Repl. 2005), states that it is unlawful and punishable for any person who is
intoxicated to operate or be in actual physical control of a motor vehicle. “Intoxicated” is
defined as “influenced or affected by the ingestion of alcohol . . . 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). Proof of the offense
requires a showing that a defendant had “actual physical control of the vehicle while
intoxicated” but does not require a showing that the defendant “was driving the vehicle or
driving the vehicle in a hazardous or negligent manner.” Stewart v. State, 2010 Ark. App. 9,
at 2, ___ S.W.3d ___ (citing Beasley v. State, 47 Ark. App. 92, 96, 885 S.W.2d 906, 908
(1994)). Further, a conviction for driving while intoxicated is not dependent upon evidence
of blood-alcohol content in view of sufficient other evidence of intoxication. Mace v. State,
328 Ark. 536, 540, 944 S.W.2d 830, 833 (1997). 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, 202, 987
S.W.2d 694, 698 (1999); Blair v. State, 103 Ark. App. 322, 327, 288 S.W.3d 713, 717 (2008).
Opinion testimony regarding intoxication is admissible. Johnson, 337 Ark. at 202, 987 S.W.2d
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Cite as 2010 Ark. App. 584
at 698. Finally, 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.,
987 S.W.2d at 698.
In the case at bar, Officer Thomason witnessed Stewart driving the Jeep Liberty. Both
Officer Thomason and Trooper Owen testified that they observed Stewart to have bloodshot
and watery eyes. They both smelled the odor of intoxicants on Stewart’s breath and person.
Officer Thomason stated that Stewart became agitated and uncooperative when field-sobriety
tests were being attempted. Further, there was evidence admitted that Stewart refused to take
the blood-alcohol test once in custody. We hold that this evidence is more than sufficient to
support the conviction for driving while intoxicated.
Affirmed.
PITTMAN and HART, JJ., agree.
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