Peterson v. State
| Decision Date | 12 March 2003 |
| Docket Number | No. CA CR 02-761.,CA CR 02-761. |
| Citation | 100 S.W.3d 66 |
| Parties | Jack Jay PETERSON, Jr. v. STATE of Arkansas. |
| Court | Arkansas Court of Appeals |
Paul M. Gehring, Deputy Public Defender, Fayetteville, for appellant.
J. Leon Johnson, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., Little Rock, for appellee.
Appellant Jack Peterson, Jr., appeals from an order of the Washington County Circuit Court finding him guilty of driving while intoxicated, fifth offense, violating the implied-consent law, and revoking his suspended sentence for driving while intoxicated, fourth offense. For reversal, appellant challenges the sufficiency of the evidence to support his convictions and the revocation of his suspended sentence. Appellant also asserts that the trial court erred by allowing the jury to set his sentence by applying both the DWI sentencing enhancement provision and the general habitual offender enhancement statute. We conclude that there was sufficient evidence to support appellant's convictions and the revocation of his suspended sentence; thus, we affirm on these points. However, we agree that the court could not use the habitual offender statute in conjunction with the DWI sentencing enhancement provision, and thereby we modify appellant's sentence from fifteen to ten years' imprisonment.
The facts of this case are as follows. At around 3:30 p.m. on December 5, 2001, Sergeant Robert Sanchez of the Springdale Police Department was dispatched to investigate an altercation at Harp's North. En route, dispatch informed Sergeant Sanchez that one of the suspects had left in a white Camaro. Sergeant Sanchez observed the vehicle traveling west on Christian Street and followed the vehicle to the Union Drive Apartments. At the apartment complex, Sergeant Sanchez made contact with the driver. At trial, he identified appellant as the driver. Sergeant Sanchez suspected that appellant was under the influence of alcohol and asked for appellant's identification. At that time, Officer Jeff Taylor arrived to assist Sergeant Sanchez. Officer Taylor had appellant perform a series of field sobriety tests. After appellant failed each test, he was placed under arrest and transported to the Springdale Police Department for a Breathalyzer test. At the station, appellant refused to submit to the Breathalyzer test. He was subsequently charged with driving while intoxicated, fifth offense, and violation of the implied consent law. The State also petitioned to revoke appellant's thirty-six months' suspended sentence for driving while intoxicated, fourth offense.
At appellant's April 4, 2002, jury trial on the driving while intoxicated charge and violation of the implied consent law, the court also considered the revocation of appellant's suspended sentence. During the trial, Sergeant Sanchez testified that:
He [appellant] was pretty rattled trying to tell me about this fight and I noticed he had obviously been drinking, he had a strong odor of intoxicants coming from him and at that point I realized he was probably DWI. I think it was obvious in his demeanor that he'd been drinking. By his demeanor, I mean the way he was talking and he was extremely rattled.
Sergeant Sanchez also testified that during his contact with appellant he did not observe any drowsiness, nausea, or vomiting. He further testified that he did not have an opportunity to determine if appellant's pupils were unequal in size or whether appellant had any unusual eye movements.
Officer Taylor testified that while talking to appellant he too noticed a strong odor of intoxicants coming from appellant's person. He said that when questioned, appellant admitted to consuming two beers. Officer Taylor also testified that during his contact with appellant, he noted that appellant had slurred speech, unusual eye movement, and that he appeared confused.
Officer Taylor stated that he had appellant perform a series of field sobriety tests and that the first test was the horizontal gaze nystagmus test (HGN). Officer Taylor explained that there are six clues that he looks for during the test and that appellant failed the test after he found six of six clues. He stated that during the HGN test
Officer Taylor testified that the next test was the walk-and-turn test. He stated that he explained and demonstrated the test to appellant and that appellant said he could not perform the test even if he was sober. Officer Taylor went on to state that:
When he [appellant] started the test, he touched heel to toe, and on the fourth step he raised his arms to his side or actually about shoulder level. He was supposed to keep his arms to his side. He took ten steps instead of nine and then when he turned around he did the same thing. He took ten steps and raised his arms to his side or to his shoulders. He failed the walk and turn test in my opinion. There are eight clues we look for on that test. If they perform two of those clues they're considered failing. The clues are failing to keep balance while walking, stepping off the line, taking an incorrect number of steps, raising arms for balance, failing to touch heel to toe, performing an improper turn, failing to complete the test, or failing to take all the required steps. He took too many steps and he raised his arms to his shoulder.
Officer Taylor explained that during the walk-and-turn test the subject is allowed to raise his arms six inches.
Officer Taylor testified that prior to performing the one-leg stand test, appellant informed him that his left leg was bad and that he gave appellant the option of choosing which leg he wanted to stand on. He stated that appellant chose to stand on his left leg. Officer Taylor further stated that appellant "stood there for about three seconds and started hopping a little bit and then put his foot down and switched legs and then raised his left leg and stood on his right leg for about five seconds before putting it down again." Officer Taylor testified that because appellant hopped and put his foot down, he failed the test. Based on the totality of the circumstances, Officer Taylor stated that he placed appellant under arrest for driving while intoxicated. Officer Taylor testified that when appellant indicated he did not understand the "implied consent warning," he read the warning to appellant. He stated that after having the warning read to him several times, appellant still did not understand the warning. Officer Taylor testified that due to appellant's failure to understand, his only option was to enter a refusal into the Breathalyzer. Officer Taylor testified that he also read the "right to another test form" to appellant. He stated that appellant refused to sign the form and that he refused to initial as to whether he understood the form.
The jury returned a guilty verdict, and the court revoked appellant's suspended sentence, finding that appellant had violated the terms and conditions of his suspended sentence. He was sentenced as a habitual offender to fifteen years' imprisonment for driving while intoxicated, fifth offense, and violation of the implied consent law, and was sentenced to three years' imprisonment for the revocation of his suspended sentence. The court ran the sentences consecutively.
In his first point for reversal, appellant asserts that the trial court erred in failing to grant his motions for directed verdicts. A motion for directed verdict is a challenge to the sufficiency of the evidence. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Alexander v. State, 78 Ark.App. 56, 77 S.W.3d 544 (2002). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002). When the defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id.
Appellant challenges the sufficiency of the evidence to support his conviction for driving while intoxicated, fifth offense. He specifically asserts that there was no evidence that he was intoxicated. Pursuant to our DWI statute, a person violates the law by either operating a motor vehicle while intoxicated or operating a motor vehicle with a blood-alcohol content of eight-hundredths (0.08) or more. Ark. Code Ann. § 5-65-103 (Supp.2001); see also White v. State, 73 Ark.App. 264, 42 S.W.3d 584 (2001). Intoxicated is defined as:
influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver's...
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