Deshazier v. State
| Decision Date | 21 December 1988 |
| Docket Number | No. CA,CA |
| Citation | 761 S.W.2d 952,26 Ark.App. 193 |
| Parties | Harrell DESHAZIER, Sr., Appellant, v. STATE of Arkansas, Appellee. CR 88-122. |
| Court | Arkansas Court of Appeals |
Jesse L. Kearney, Pine Bluff, for appellant.
Lynley Arnett, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Harrell Deshazier, Sr., argues two points for reversal of his conviction under the Omnibus DWI Act. The first point concerns the trial court's refusal to grant appellant's motion for a directed verdict, while the second point involves the sufficiency of the evidence. Because, as we noted in Nelke v. State, 19 Ark.App. 292, 720 S.W.2d 719 (1986), a motion for a directed verdict is a challenge to the sufficiency of the evidence, we will consider the two arguments as one. Nothing appellant has advanced has persuaded us that the trial court erred.
The record reveals that appellant was arrested by Deputy Troy Keathley of the Prairie County Sheriff's Office on January 11, 1987, for driving while intoxicated. Officer Keathley, responding to an accident call, found appellant asleep, seated behind the steering wheel of his vehicle, which was in a ditch. The deputy knocked on appellant's window, and appellant immediately got out. Officer Keathley noticed the odor of alcohol on appellant and placed him under arrest for driving while intoxicated. After appellant was taken to the county jail he was given a breathalyzer test and registered .14 percent.
Appellant was convicted under the provisions of Ark.Code Ann. § 5-65-103 (1987):
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person's blood as determined by a chemical test of the person's blood, urine, breath, or other bodily substance.
This case was tried by the court without a jury. The judgment signed by the judge made the specific finding that "The State has met its burden of proof by showing the Defendant did operate or was in actual physical control of his motor vehicle with a blood-alcohol content of .14%."
Appellant admitted having driven his car into the ditch and having attempted to get it out. He was given a breathalyzer test and registered .14%. Appellant told the investigating officer that he had been run off the road and into a ditch by another driver. Appellant testified that he began drinking after the accident because he was upset. The trial court chose not to believe his testimony. A trial judge is not required to accept a criminal defendant's testimony, Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985), especially since an accused is the person most interested in the outcome of the trial, Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). In determining the issue of sufficiency of the evidence, we view the evidence in the light most favorable to the appellee, and the judgment must be affirmed if there is any substantial evidence to support the finding of the trier of fact, Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986), whether tried by judge or jury, Holmes v. State, 15 Ark.App. 163, 690 S.W.2d 738 (1985).
On the facts, we find this case very similar to Altes v. State, supra. In that case the court said:
The circumstantial evidence is that Altes was drunk, standing by his truck with the motor running and the door open. He confessed he was driving the truck when it went into the ditch. On appeal the test is whether there is substantial evidence to sustain the conviction. [Boone] v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Circumstantial evidence can be substantial evidence. Coleman v. State, 283 Ark. 359, 676 S.W.2d 736 [1984]. The evidence must present proof so that the finding does not rest on conjecture. Rode v. State, 274 Ark. 410, 625 S.W.2d 469 (1981). Altes' story might be true; however, the trial court found it false. We are unable to say there is no substantial evidence to support that finding.
Affirmed.
There were only two witnesses at the trial in this case. Officer Keathley testified that at about 7:00 a.m. on January 11, 1987, he received a call reporting an accident in Ulm, Arkansas. When he arrived at 8:30 a.m., he found Deshazier asleep behind the wheel of his car, which had run off the road. The engine was off and the officer testified he did not know where the keys were. He arrested Deshazier because he smelled alcohol on him and in the vehicle.
Officer Keathley testified that it was 10:00 a.m. when he returned with Deshazier to the county jail to give him a breathalyzer test. He testified that he determined from his own observation that Deshazier's car was not operational. He said that when he arrived on the scene, a tow truck operator told him that he had seen Deshazier's car there at about 5:00 a.m. He testified that Deshazier told him he started drinking after the accident.
In denying the defendant's motion for directed verdict the trial court said:
Defendant is not required, of course, to prove that he was not operating the vehicle. The burden is on the prosecution to do that. However, the motion is denied because Act 549 provides either operating or in control of the vehicle. The evidence thus far is that the defendant was the only occupant in the vehicle, sitting behind the wheel, therefore, he was in control as far as the motion is concerned.
After the motion was denied, Deshazier testified that he was employed both as the manager of a liquor store in Pine Bluff and as a train master for St. Louis Southwestern Railroad in Memphis, Tennessee. He testified that he closed the liquor store at about midnight, took a nap, and left for Memphis at about 3:00 a.m., the morning of the accident. He said that he was run off the road by an on-coming vehicle and hit a culvert. According to Deshazier, this occurred at about 4:00 a.m. He said the accident tore the drive shaft out of the vehicle and jerked the left axle completely out from under it. He testified that he had not been drinking prior to the accident. He was required to be at work at Memphis at 7:00 a.m. and said he never came to work drunk. He had brought a pint of liquor with him from the liquor store to give to his crew members after they got off duty. He said that after...
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