Brown v. State, M-77-718

Decision Date11 September 1978
Docket NumberNo. M-77-718,M-77-718
Citation584 P.2d 231
PartiesJohnny Wilborn BROWN, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

CORNISH, Judge:

Appellant, Johnny Wilborn Brown, hereafter referred to as defendant, was convicted in a nonjury trial in the Pontotoc District Court, Case No. CRM-77-190, for Driving Under the Influence of Intoxicating Liquor, contrary to 47 O.S.1971, § 11-902. Punishment was assessed at ten (10) days in jail and a Three Hundred Dollar ($300.00) fine.

James Fox, Ada police officer, testified that at about 3:30 a. m. on April 2, 1977, he investigated an accident, wherein a red 1975 Chevrolet had hit a parked car, knocking it into a sign and causing extensive damage. Officer Fox stated that when he first arrived on the scene, the defendant was near the red Chevrolet but not inside. Subsequently, the defendant walked around in the street, holding his hand to his chest, and at one point sat behind the wheel of the vehicle. During this time, Officer Fox asked the defendant several questions concerning the accident. The defendant replied that while driving he lost control of his car, went off the road and struck a parked car. The officer noted that defendant had a strong odor of alcohol on his breath and was unsteady on his feet.

Ada Police Chief Richard Gray administered the breathalyzer test to the defendant and testified that the result indicated 0.15% Blood-alcohol content.

The defendant demurred to the State's evidence and offered no evidence of his own.

Defendant's first assignment of error is that the trial court improperly permitted Chief Gray to testify as to the results of the breathalyzer test when no proper foundation had been laid. In Westerman v. State, Okl.Cr., 525 P.2d 1359 (1974), this Court held that 47 O.S.1971, § 759, requires that the State prove that the rules promulgated by the Board of Chemical Tests for Alcoholic Influence have been complied with, prior to the admission of the results of a breathalyzer test. Defendant contends this was not done with regard to the "periodic maintenance requirement," as set out in Westerman v. State, supra.

The evidence revealed that while Chief Gray had the required permit to administer the test, he was not qualified to perform the periodic maintenance. However, a subordinate, Lieutenant Barrett, was so qualified, but was on vacation at the time of trial and did not testify. In lieu of his testimony, the State introduced a "maintenance logbook" containing entries by Lieutenant Barrett and another similarly qualified officer, indicating when and what maintenance had been performed. Chief Gray testified that the logbook is required to be kept by law, that he periodically checked it to insure that the maintenance of the breathalyzer device was being performed, and that he had personally assured himself that Lieutenant Barrett had the proper qualifications and credentials for performing such maintenance.

This Court notes after examining a copy of the logbook, that the notations contained therein indicate that the maintenance performed was in compliance with the rule promulgated by the Board of Chemical Tests for Alcoholic Influence, Rule 1B. See, Westerman v. State, supra. Defendant does not contest the accuracy of the notations, nor does he contend that Lieutenant Barrett was not qualified to perform the maintenance task. In Westerman, it was said that although the State bears the burden of proof, "(t)his proof can be established without the necessity of calling the Supervisor who performed the required maintenance, if it can be shown through other testimony that there was compliance of all regulations." 525 P.2d at 1361, 1362. Further, in Oklahoma Department of Public Safety v. Robinson, Okl., 512 P.2d 128, 134 (1973), the Oklahoma Supreme Court stated:

"A record of primary facts, made by a public officer in the performance of official duty may be competent prima facie evidence of the existence of such primary facts. . . . " (Citations omitted)

Here, Lieutenant Barrett, a state officer, performed certain maintenance and recorded this fact in a record required to be kept by law. Chief Gray, who testified at trial, had the primary responsibility to see that this was done. We conclude Chief Gray's testimony laid an adequate foundation for the admissibility of the logbook into evidence. The entries in the logbook indicate the maintenance was performed. Therefore, the requirement of Westerman, that the State prove the rules and regulations have been complied with, has been satisfied. Defendant's first assignment of error is without merit.

Defendant's second and third assignments of error contest the sufficiency of the evidence under two propositions. First, defendant contends the State failed to prove the corpus delicti of the crime, such as would justify the admission of the statements made by the defendant. Second, he argues that the State's case was entirely based upon circumstantial evidence and was not such as would exclude every reasonable hypothesis except that of guilt.

Since we agree with defendant's second proposition, we find it unnecessary to decide the first. However, for the sake of argument, we will assume that the State adequately proved...

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5 cases
  • State v. Smith, 271PA84
    • United States
    • North Carolina Supreme Court
    • December 4, 1984
    ...People v. Freeland, 118 Misc.2d 486, 460 N.Y.S.2d 907 (1983); State v. Walker, 53 Ohio St.2d 192, 374 N.E.2d 132 (1978); Brown v. State, 584 P.2d 231 (Okla.1978); State v. Smith, 66 Or.App. 703, 675 P.2d 510 (1984); Commonwealth v. Sweet, 232 Pa.Super. 372, 335 A.2d 420 (1975); State v. Rob......
  • State v. Ruiz
    • United States
    • Court of Appeals of New Mexico
    • August 18, 1995
    ...Safety, 589 So.2d 529, 533 (La.Ct.App.1991); State v. Mendieta, 20 Ohio App.3d 18, 484 N.E.2d 180, 182-83 (1984); Brown v. State, 584 P.2d 231, 233 (Okla.Crim.App.1978). Nevertheless, Defendant contends: "While Christian may establish that a 'scientific report' is not always inadmissible in......
  • State v. Blackman
    • United States
    • Nebraska Supreme Court
    • July 2, 1998
    ...State v. Blackman, 6 Neb.App. 294, 572 N.W.2d 101 (1997) (citing Coleman v. State, 704 S.W.2d 511 (Tex.App.1986); Brown v. State, 584 P.2d 231 (Okla.Crim.App.1978); State v. Clark, 130 Vt. 500, 296 A.2d 475 (1972)). However, our prior decisions establish that circumstantial evidence may be ......
  • State v. Blackman, A-97-105
    • United States
    • Nebraska Court of Appeals
    • December 23, 1997
    ...accident, despite uncontested testimony that defendant was intoxicated when police found defendant at accident scene); Brown v. State, 584 P.2d 231 (Okla.Crim.App.1978) (that defendant was intoxicated when assisted at scene of accident was insufficient to sustain conviction in absence of ev......
  • Request a trial to view additional results
1 books & journal articles
  • The offense
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • March 31, 2022
    ...must be of such a nature “as to exclude every other reasonable hypothesis save that of the guilt of the accused …” Brown v. State , 584 P.2d 231 (Okla. Crim. App. 1978). See also Douthit v. State , 739 S.W.2d 94 (Tex.App.—San Antonio 1987). In Douthit , three occupants of a car were rear-en......

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