Hodge v. State, CA

• Decision Date: 22 March 1989
• Docket Number: No. CA,CA
• Parties: George J. HODGE, Appellant, v. STATE of Arkansas, Appellee. CR 88-165.
• Court: Arkansas Court of Appeals

Page 619

766 S.W.2d 619

27 Ark.App. 93

George J. HODGE, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 88-165.

Court of Appeals of Arkansas Division I.

March 22, 1989.

Scott Adams, Morrilton, for appellant.

Joseph V. Svoboda, Asst. Atty. Gen., Little Rock, for appellee.

CRACRAFT, Judge.

George J. Hodge appeals from his conviction of driving while intoxicated, fourth offense, for which he was sentenced to a term of one year in the Arkansas Department of Correction and fined $900.00. We find sufficient merit in one assignment of trial error to warrant a new trial.

Appellant first challenges the sufficiency of the evidence to support his conviction. We decide that issue before considering any alleged trial error for the reasons stated in Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the jury's verdict, without weighing it against conflicting evidence that may be favorable to the accused, and will affirm the jury's verdict if it is supported by substantial evidence. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985).

The evidence most favorable to the State shows that at approximately midnight a police officer observed a vehicle parked on the side of the road with smoke pouring out from under its hood. Upon investigation, he observed that the key was in the ignition, that the motor was running, and that the appellant was positioned with his feet on the driver's side and his body "keeled over" towards the passenger side. When the officer pulled appellant from the vehicle, appellant could not tell him his name and had no driver's license. There was a smell of alcohol about his person and other indications that the appellant was intoxicated. The officer then placed him under arrest for driving while intoxicated.

Arkansas Code Annotated § 5-65-103 (1987) (formerly Ark.Stat.Ann. § 75-2503 (Repl.1985)) declares it to be unlawful for an intoxicated person to operate or be in actual physical control of a motor vehicle. The object of this legislation is to prevent intoxicated persons from not only driving on the highways, but also from having such control over a motor vehicle that they may become a menace to the public at any moment by driving it. This statute does not require that the police officers actually see an intoxicated person drive the vehicle or exercise his control over it. In a prosecution for driving while intoxicated, actual control of the vehicle by the defendant may be proved by circumstantial evidence. Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985); Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). In Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985), the court held that evidence that an intoxicated appellant was found asleep behind the wheel of a car with the ignition key turned on is sufficient to sustain a conviction of being in control of the vehicle. Here, appellant concedes that he was intoxicated, and, as the officer testified that the appellant was found in the driver's position with the engine actually running, the jury could properly have concluded that he was in actual physical control of a motor vehicle.

Arkansas Code Annotated § 5-65-111(b)(3) (1987) (formerly Ark.Stat.Ann. § 75-2504 (Supp.1985)) provides that a person who is found guilty of driving or being in control of a vehicle while intoxicated may be sentenced to a term of not less than one nor more than six years for the fourth offense occurring within three years of the first offense. Here, there was introduced into evidence three certified copies of municipal court judgments tending to prove previous convictions of committing the offense of driving while intoxicated within the last three years. Also introduced was a certified copy of a judgment of the circuit court of Conway County, entered after the municipal court judgments, showing that appellant had appeared with his attorney and entered a plea of guilty to "fourth offense DWI." We cannot conclude from our review of the record that the evidence was not sufficient to support a finding of guilt of the underlying charge of operating or being in control of a motor vehicle while intoxicated or that appellant had previously committed the same offense on three prior occasions within three years of the offense for which he was being tried.

Appellant's defense was based on testimony that a companion, not he, had driven the vehicle to the location where the officer found it. The companion testified that, although the vehicle was owned by appellant, appellant had not driven it but was passed out on the backseat when the automobile became inoperable and "would not move" due to transmission problems. The companion testified that he left the car on the side of the road and went for help approximately an hour before the police officer made the arrest.

Over appellant's objection, the trial court instructed the jury as follows If you find that the defendant was located behind the wheel of a motor vehicle, operable or not, with the keys in the ignition and the motor running, then you will find that he is in actual physical control of a motor vehicle.

(Emphasis added). Appellant argues on appeal that the issue of whether he had driven the vehicle or was or had been in control of it within the meaning of the act was a question of fact for the jury to determine from the circumstantial evidence it had before it. He contends that it was error for the court to remove that issue from the consideration of the jury by a binding instruction. We agree that this was prejudicial error for which a new trial is warranted.

When a binding instruction contains an...