Bohanan v. State

• Decision Date: 14 February 2001
• Docket Number: 00-77
• Citation: 38 S.W.3d 902
• Parties: JAMES M. BOHANAN, APPELLANT V. STATE OF ARKANSAS, APPELLEE CACR 00-77 Arkansas Court of Appeals 14 February 2001 APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT, , HONORABLE JOE MICHAEL FITZHUGH, CIRCUIT JUDGE AFFIRMED John B. Robbins, Judge. Appellant James M. Bohanan was convicted by a jury of driving while intoxicated. He was fined $500.00 and ordered to serve one day in jail, with credit for time served. Mr.aBohanan now appeals, arguing that his conviction is not supported by sufficient evidence. He also raises three evidentiary issues. We affirm. When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Jenkins v. State, 60 Ark. App. 1, 959 S.W.2d 57 (1997). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty, without resort to conjecture. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Jenkins v. State, supra. Deputy Steven Cox of the Sebastian County Sheriff's Department testified for the State. Deputy Cox stated that he was patrolling on
• Court: Arkansas Court of Appeals

JAMES M. BOHANAN, APPELLANT

V.

STATE OF ARKANSAS, APPELLEE

CACR 00-77

Arkansas Court of Appeals

14 February 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT, [NO. MC9910], HONORABLE JOE MICHAEL FITZHUGH, CIRCUIT JUDGE

AFFIRMED

John B. Robbins, Judge.

Appellant James M. Bohanan was convicted by a jury of driving while intoxicated. He was fined $500.00 and ordered to serve one day in jail, with credit for time served. Mr.aBohanan now appeals, arguing that his conviction is not supported by sufficient evidence. He also raises three evidentiary issues. We affirm.

When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Jenkins v. State, 60 Ark. App. 1, 959 S.W.2d 57 (1997). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty, without resort to conjecture. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Jenkins v. State, supra.

Deputy Steven Cox of the Sebastian County Sheriff's Department testified for the State. Deputy Cox stated that he was patrolling on December 15, 1998, at about 11:00 p.m. when he found a blue sedan parked in a driveway off of Highway 252. The driveway was the entrance to the premises of a logging company, and the vehicle was parked in front of a locked gate. Deputy Cox parked directly behind the sedan to check on the welfare of anyone who might be in it.

Upon approaching the vehicle with his flashlight, Deputy Cox observed Mr. Bohanan lying in the front seat, sleeping, with a jacket over him. He testified, "He was laying down in the front seat as if he had sat down behind the driver's side of the vehicle and just laid over." Deputy Cox also noticed a plastic bag containing several empty beer cans on the floorboard. After knocking on the window for several minutes,

Deputy Cox was finally able to awaken Mr. Bohanan. Mr. Bohanan asked for permission to relieve himself, and he was permitted to do so.

Deputy Cox questioned Mr. Bohanan about who he was, what he was doing there, and whether he had been drinking. Mr. Bohanan said that he had been in Fort Smith drinking beer and shooting pool. Deputy Cox noticed that Mr. Bohanan was staggering, had slurred speech, and smelled of alcohol. He attempted to administer sobriety tests, but appellant refused, stating "there is no use taking it, I would make a fool of myself." At that point, Mr.aBohanan was arrested and taken to the police station, where he refused a Breathalyzer test. According to Deputy Cox, the keys were in the ignition at the time of the arrest.

Karen Whitted testified for the defense. She stated that she was a close friend of Mr.aBohanan's and that she was with him in Fort Smith while he was shooting pool. She explained that she was driving his car back to Waldron and that he was a passenger. She stated that, on the way home, they got into an argument so she turned into a driveway. She testified that she took his car keys and left him there in the car, and rode home with her sister, who was following in a separate car.

On rebuttal, Officer Arlis Spearman was permitted to testify about why he called Deputy Cox to the area where appellant's car was located. Officer Spearman stated, "I was sitting at the car wash at Highway 71 and 252 when some people stopped and advised me that there was a blue four door passenger car driving erratically."

Lieutenant Gary O'Brien also testified on rebuttal. He explained how items are inventoried after an arrest. He then reviewed Mr. Bohanan's inventory list, which included a set of car keys.

Mr. Bohanan first argues that the verdict was not supported by substantial evidence. Arkansas Code Annotated section 5-65-103 (Repl. 1997) provides that it is unlawful for any person who is intoxicated to operate or be in actual control of a motor vehicle. A vehicle's operability is relevant to the issue of actual physical control; it is possible for a vehicle to be so incapable of operation that subsequent control of it would fall outside the purview of the statute. Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989). Mr. Bohanan does not argue that there was insufficient evidence of his intoxication. Rather, he argues that there was insufficient proof that he was in control of the vehicle. He notes that he was not seen driving the vehicle and submits that there was no evidence showing that the car was even operable, as the police apparently never tried to start the car. Appellant asserts that, because the State failed to prove that he had driven the car, or that it was capable of operation, his DWI conviction should be reversed.

Mr. Bohanan's sufficiency argument is without merit. It is well settled that the State may prove physical control of a vehicle through circumstantial evidence. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). The supreme court has held that evidence that an intoxicated person was asleep behind the wheel of a car with the key in the ignition was sufficient to show the person accused was in control of a vehicle. Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985). Similarly, we have held that evidence that an intoxicated person was asleep or "passed out" in the front seat of a vehicle with the lights on and motor running was sufficient to show the person was in control of a vehicle. Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988). Here, there was evidence that Mr.aBohanan was asleep in the front seat, as if he had been in the driver's seat and then lay over, and the keys were in the ignition. In addition, he admitted that he had been drinking and shooting pool miles away, and given that he was the only person in the car, the jury could have reasonably concluded that he must have driven there. There was sufficient evidence to establish that he was in control of the car.

Similarly, there was circumstantial evidence that the vehicle was operable. In Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985), the supreme court held there was circumstantial evidence that appellant had been operating his truck, which was stuck in the median, because appellant told the police he was coming from Jonesboro. In the instant case, Mr. Bohanan was the only person near the car, the keys were in the ignition, and he said he had been in Fort Smith drinking beer earlier. The circumstantial evidence excludes every other reasonable hypothesis other than the jury's conclusion that the car was capable of operation, and that Mr.aBohanan was in control of it while intoxicated.

Mr. Bohanan next argues that the trial court erred in admitting his statements to the police because he was not Mirandized before being questioned and making incriminating statements. In Shelton v. State, 287 Ark. 322, 699 S.W.2d 728(1985), the supreme court announced:

It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a degree associated with formal arrest. A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.

Id. at 328-29, 699 S.W.2d at 731 (quoting Berkemer v. McCarty, 486 U.S. 420 (1984)). In this case, the police officer pulled up behind appellant's vehicle, which blocked him in because he was in front of a locked fence. Then the police officer shined a flashlight in his car and knocked on the window until he woke up. Under these circumstances, appellant contends that a reasonable man would believe he was in custody, and thus that his subsequent confessions should have been suppressed.

The trial court did not err in admitting the incriminating statements. In Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992), we held that Miranda warnings were not required during a police officer's investigation of an accident. In that case, the officer smelled alcohol on appellant and knew he was going to arrest him, and asked appellant if he had been driving. Appellant's affirmative response was held admissible because at the time appellant had insufficient reason to believe he was in custody.

Miranda warnings are not required if the police questioning is simply investigatory. Cook v. State, supra. In the present case, the officer had not yet decided to arrest Mr. Bohanan when asking about his identification and whether he had been drinking. These were investigatory questions which might have, and did, lead to an arrest. But when the questions were asked he was not "in custody," and would not have reasonably thought that he was under arrest. This was a traffic investigation, for which Miranda warnings are not initially necessary. Mr. Bohanan attempts to distinguish this case because the officer blocked him in when he parked behind him. However, he was blocked in only because he decided to park in front of a locked gate, and he would have been allowed to leave but for the eventual determination that he was intoxicated. The trial court's decision to admit the statements was not erroneous.

Mr. Bohanan next argues that the trial court erred in not suppressing evidence collected by the police because the police lacked reasonable suspicion to justify a stop of his vehicle. The evidence showed that, on the night at issue, a couple stopped into a gas station and told Officer Spearman that a reckless/drunk driver, driving a light blue car, was in a ditch a few miles away on Highway 252. The couple asked if the man needed a ride, but he refused, and the couple told the officer that they "didn't know what was wrong...