Flemons v. State (Majority)
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Cite as 2013 Ark. App. 280 ARKANSAS COURT OF APPEALS DIVISION IV xo. CACI\12-736 opinion Delivercd AARON ANTHONY FLEMONS APPELLANT MAY 1, 2013 APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. CR-1 1-e871 V. STATE OF ARKANSAS APPELLEE HONORABLE JAMES O. COX, JUDGE AFFIRMED BILL H. WALMSLEY, Judge Appellant Aaron Anthony Flemons appeals his convictions for fleeing apprehension and leaving rhe scenc of a personal-injury accident. For his sole point on appeal, he argues rhat there was insuflicient evidence [o support his convictions. We afErm. A jury rrial was held onJune 19,2A12. Corporal Dwight Lee of the Arkansas State Police testified that, on the night o[scpternber 30, 2011, hc was conciucting a sobriery chcckpoint wirh Troopcrs Billy Turnipseed and IJrandon Margis at Intersrate 540 Northbound at Grand Avenue in Scbastian Counry. All three officen were wearing uniforms and reflective vests, and the blue lighrs on their vehicles were activated. The officers were asking drivers for their ciriver's licenses and asking whether they had been drinking. Lec resrified that appellant camc through rhe checkpoint driving a four-door 2003 Ponriac Grancl Am. Lee said that with the street lights, the lights fronr other cars, and the tights from the officers' cars, he was able to see clearly into appellant's vehicle. He saw a woman in the passenger seat and rwo young children in the back seat. Lee asked appellant for his driver's license, and appellant stated that he did not have it with him. Lee then instructed appellant to move to the right shoulder. Appellant pulled over and Lee began walking to him, but appellant then sped off. All three ofEcers ran to their vehicles and began pursuing appellant. Turnipseed was the first officer in pursuit. He testified that he never lost sight of appellant's vehicle and that he drove berween 70 and,80 miles per hour to keep up with appellant. The speed limit on Grand Avenue is 35 miles per hour. Appellant drove through fwo red lights, weaved in and out of traffic, ran a stop sign, and crashed into a light pole. 'When Tumipseed got to the vehicle, no one was in the driver's seat and the driver's door was partially cracked. Turnipseed testified that he never got a look at the driver. 'When Lee approached, he heard the woman passenger screaming in pain, but appellant was not at the accident scene. After the accident, Lee obtained appellant's name and picture identification, and he confirmed that appellant was the driver. Lee testified that he was one hundred-percent sure that appellant was the driver who sropped at the checkpoint and then fled. Appellant moved for a directed verdict on the fleeing charge, arguing that there was no testimony that the driver of that vehicle knew that his apprehension was imminent. On the charge of leaving the scene of a personal-injury accident, appellant argued that the testimony of Lee alone was insufficient to establish that appellant was the operator of that -2- vehicle. The jury found appellant guilry of both charges, and he was sentenced to fifteen years' imprisonment for each conviction. Appellant filed a timely notice of appeal. The test for determining the sufficiency of the evidence is whether the verdict supported by substantial evidence, direct or circumstantial. Pierce u. State,79 is Ark. App.263, 86 S.W.3d 1 (2002). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjectwe. Id. In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State, considering only that evidence which tends to support the verdict. Id. If a a person knows that his or her immediate arrest or detention is being attempted by duly authorized law-enforcement officer, it is the lawful dury of the person to refrain from fleeing, either on foot or by means of any vehicle or conveyance. Ark. Code Ann. $ 5-54-1.25(a) (Supp. 201,1,). Fleeingby means of any vehicle or conveyance is considered a Class D felony life, if under circumstances a person purposely operates manifesting extreme indifference to the value ofhuman the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. $ 5-54-125(dX2). The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the accident or as close chereto as possible, but shall then immediately return to and in every event sha-ll remain at the scene of the accident until he or she has firlfilled the requirements of S 27-53-103, which include giving his or her name and address and rendering reasonable assistance to any person injured. Ark. Code Ann. $ 27-53-101(a)(t) (Repl. 2010); Ark. Code Ann. $ 27-53-103(a) -3- (Repl. 2010). Appellant claims that there was insufficient evidence to support his convictions because the State did not prove that he was the driver of the vehicle in question. He argues that Lee was rhe only witness to identift him as the driver and that this identification was based only on a ten-second encounter with the driver at the checkpoint location in the dark. Appellant's argument is preserved only for his conviction for leaving the scene of a personal-injury accident. He did not challenge his identity in his directed-verdict motion for the fleeing-apprehension charge. A party cannot change the grounds for a directed-verdict motion on appeal, but is bound by the scope and nature of the argument presented at trial. Auery u. State,93 Ark. App. 112,277 S.W.3d 1,62 (2005). As the State contends, Corporal Lee's testimony was substantial evidence that appellant was the driver of the vehicle. Lee spoke with the driver at the checkpoint, and even though the encounter lasted only a few seconds, he recognized appellant saw appellant's as as the driver when he later picture. There was no evidence contradicting Lee's identification of appellant the driver at the checkpoint, and Tumipseed testified that he never lost sight of appellant's vehicle during the chase. Thus, there can be no inference that appellant was nor still the driver at the time of the accident. The jury is the sole judge ofthe credibiliry ofthe wirnesses and the weight to be given their restimony. Carner u. State,355 Ark. 82, 131 S.W.3d 734 (2003). Corporal Lee's testimony provided sufficient evidence, and we affirm appellant's convictions. Affirmed. -4- Cite as 2013 Ark. App. 280 GLOVER and WHITEAKER, JJ., agree. Lesley Freeman Burleson, for appellant. Dustin McDaniel, Att y Gen., by: Karen Virginia Wallace, Ass t Att y Gen., for appellee. -5-
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