Sparks v. State, CA
| Decision Date | 24 August 1988 |
| Docket Number | No. CA,CA |
| Citation | 756 S.W.2d 911,25 Ark.App. 190 |
| Parties | Frank Elmo SPARKS, II, Appellant, v. STATE of Arkansas, Appellee. CR 87-230. |
| Court | Arkansas Court of Appeals |
Ray Hartenstein, Little Rock, for appellant.
Steve Clark, Atty. Gen., Little Rock, for appellee.
This appeal comes to us from Pulaski County Circuit Court, First Division. Appellant, Frank Elmo Sparks II, appeals his conviction of operating a motorboat while intoxicated. We affirm.
A felony information was filed August 6, 1986, charging appellant with manslaughter, a violation of Arkansas Code Annotated § 5-10-104 (1987) (formerly Ark.Stat.Ann. § 41-1504 (Repl.1977)) and driving a boat while intoxicated, a violation of Arkansas Code Annotated § 27-101-202(7) (1987) (formerly Ark.Stat.Ann. § 21-229(b) (Repl.1968)). These charges resulted from a jet boat accident which occurred on the Little Maumelle River on May 9, 1986, in which the passenger in the boat driven by appellant died from injuries sustained when the boat hit a tree. A jury trial was held May 4, 1987, wherein appellant was found not guilty of manslaughter and guilty as charged for driving a boat while intoxicated for which he was sentenced to ten (10) days in jail and a $500.00 fine.
As his only point for reversal, appellant asserts that the trial court erred in denying his motions for a directed verdict in that there was not sufficient evidence to support a conviction for driving a boat while intoxicated. We disagree.
Arkansas Code Annotated § 27-101-202(7) requires that:
No person shall operate any motorboat or vessel or manipulate any water skis, aquaplane, or similar device while intoxicated or under the influence of any narcotic drug, barbiturate, or marijuana or while under any physical or mental disability so as to be incapable of operating the motorboat or vessel safely under the prevailing circumstances.
In this case, the jury was instructed on the definition of "intoxication" as defined in Arkansas Code Annotated § 5-65-102 (1987) (formerly Ark.Stat.Ann. § 75-2502(a) (Supp.1985)) as:
(1) "Intoxicated" means 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 reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians;
Appellant asserts that there was insufficient evidence presented at trial to establish that he was intoxicated. The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). On appeal in a criminal case, whether tried by a judge or jury, we will affirm if there is substantial evidence to support the finding of the trier of fact. Gullett v. State, 18 Ark.App. 97, 711 S.W.2d 836 (1986). Substantial evidence is that evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another; it must force the mind to pass beyond suspicion or conjecture. Jimenez v. State, 12 Ark.App. 315, 675 S.W.2d 853 (1984). The appellate court need only consider testimony lending support to the jury verdict and may disregard any testimony that could have been rejected by the jury on the basis of credibility. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
At trial, appellant successfully objected to an instruction regarding the presumptions a jury may or may not make based upon the blood alcohol content in a person's blood, urine, breath, or other bodily substance as set out in Arkansas Code Annotated § 5-65-206 (1987) (formerly Ark.Stat.Ann. § 75-1031.1 (Supp.1985)). Appellant alleges that the presumptions do not apply since this is not a motor vehicle case. On appeal, appellant argues that, without these presumptions, the State should have produced an expert witness to explain the legal significance of appellant's blood alcohol level to the jury. Appellant asserts that the blood alcohol content is meaningless without such testimony. We disagree. Expert testimony explaining the meaning of blood alcohol content is not required to prove intoxication. In fact, one may be convicted of driving while intoxicated without the use of a blood alcohol test. See, e.g., Whaley v. State, 11 Ark.App. 248, 669 S.W.2d 502 (1984).
Here, not only did the jury have the benefit of knowing that appellant's blood alcohol content was 0.16% two and one-half hours after the accident, it was also presented with ample other evidence from which it could have concluded that appellant was guilty of driving his boat while intoxicated.
Although there was conflicting evidence in the case at bar, reviewing the...
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