Pierce v. State

• Decision Date: 02 October 2000
• Docket Number: No. CA CR 01-1292.,CA CR 01-1292.
• Citation: 79 Ark. App. 263,86 S.W.3d 1
• Parties: Ben Olan PIERCE v. STATE of Arkansas.
• Court: Arkansas Court of Appeals

Page 1

86 S.W.3d 1

79 Ark. App. 263

Ben Olan PIERCE v. STATE of Arkansas.

No. CA CR 01-1292.

Court of Appeals of Arkansas, Division IV.

October 2, 2000.

Clint Miller, Deputy Public Defender, for appellant.

Mark Pryor, Att'y Gen., by: Misty Wilson Borkowski, Ass't Att'y Gen., for appellee.

TERRY CRABTREE, Judge.

In Case No. CR 00-2457, the Pulaski County Circuit Court convicted the appellant, Ben Olan Pierce, of fleeing and sentenced him as an habitual offender to three years' imprisonment in the Arkansas Department of Correction. In addition, the circuit court revoked appellant's probation in Case No. CR 98-3149 and sentenced him to forty-two months' imprisonment in the Arkansas Department of Correction, with eighteen months suspended. The trial court ran these sentences consecutively.

On appeal, appellant challenges (1) the trial court's decision to deny his motion to dismiss the fleeing charge, and (2) the circuit court's jurisdiction to modify his sentence in the probation-revocation hearing. We affirm.

At a bench trial, the circuit court convicted appellant of fleeing, a Class D felony. Ark.Code Ann. § 5-54-125 (Repl. 1997) provides in part:

(a) If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance.

. . .

(d) Fleeing by means of any vehicle or conveyance shall be considered a Class A misdemeanor.

(1) Fleeing by means of any vehicle or conveyance shall be considered a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person or persons.

Appellant argues that the trial court erred by denying his motions for dismissal because the State did not sufficiently prove that he drove his automobile in a manner that created a substantial danger of death or serious physical injury to another person.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

At trial, Officer Plunkett testified that on March 24, 2000, he activated his patrolcar siren when he observed appellant's car and another vehicle almost collide at an intersection controlled by a yield sign. When the officer activated his siren, appellant drove his green Ford Thunderbird through the intersection and turned west onto 36^th Street in Little Rock. He cut off three vehicles, and again almost caused a collision. Appellant then drove on the wrong side of the road in a no-passing zone, passing cars that were traveling west on 36^th Street. At the intersection of 36th and Whitfield Streets, Officer Plunkett drove behind appellant and activated his blue lights. Appellant accelerated down the wrong side of the road over a "blind" hill between Catherine and Potter Streets. Appellant then turned north on Tatum Street and drove through the stop signs at 32^nd and 33^rd Streets without slowing or attempting to stop. Appellant next turned east onto 29^th Street but lost control of the vehicle as he tried to turn south onto Boyd Street. Appellant's vehicle slid into a chain-link fence and toys in front of 2901 Boyd Street, where he was apprehended.

Officer Plunkett testified that appellant drove up to sixty miles per hour in a twenty-five-mile-per-hour speed zone. This chase occurred at 3:49 p.m., and a significant amount of traffic was present. Several motorists had to take evasive action to avoid colliding with appellant's vehicle.

Appellant admits that his conduct created "some danger of death or serious physical injury," but argues that it did "not create a substantial danger of death or serious physical injury to others unless [his] conduct actually cause[d] a collision." We disagree. In Weeks, supra, we held that Weeks' driving endangered the safety of the passengers of the cars that were forced off the road and of people in a convenience-store-parking lot. Although Weeks never hit anyone or anything, Weeks still operated his vehicle in a manner that created a substantial danger of death or serious physical injury to others.

In the case at bar, there was testimony that appellant ran a yield sign, narrowly escaped a collision, passed cars in a no-passing zone, drove on the wrong side of the street over a "blind" hill, ran two stop signs, lost control of his car when attempting to negotiate another turn, and as a result, slid into a chain-link fence and toys. We believe that this constitutes sufficient evidence to support appellant's conviction for fleeing because he purposely operated his vehicle in a manner that created a substantial danger of death or serious physical injury to others, and he did so under circumstances manifesting an extreme indifference to the value of human life.

For appellant's second point on appeal, he claims that the trial court lacked jurisdiction to revoke his probation in Case No. CR 98-3149. In that case, on November 13, 1998, appellant appeared in the Pulaski County Circuit Court and entered a guilty plea to a felony charge of possession of a controlled substance with intent to deliver. In the amended information that the State filed against appellant, the State alleged that appellant had committed the offense of possession of cocaine with intent to deliver on or about July 13, 1998. On December 2, 1998, the circuit court entered a judgment and disposition order against appellant, ordered appellant to enter a drug rehabilitation...