Reep v. State

Cite as 2016 Ark. App. 21ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-140
Opinion Delivered January 13, 2016
JAMES MIKEL REEP APPEAL FROM THE SALINE
APPELLANT COUNTY CIRCUIT COURT
[NO. 63-CR-14-443]
V.
HONORABLE GARY ARNOLD,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant James Reep appeals his conviction of driving while intoxicated (DWI), sixth
offense. He argues on appeal that the evidence was insufficient (1) to convict him of DWI,
and (2) to conclude that this was his sixth offense. We find no error and affirm.1
On June 1, 2014, Officer Chris Runnels of the Benton Police Department observed
appellant driving on the wrong side of the road. According to Officer Runnels, appellant was
in his lane, facing him head on, and he had to activate his blue lights. At that time, appellant
“slowly crept forward” and went around Officer Runnels’s patrol car, nearly clipping the rear
of the car. Officer Runnels made a u-turn and attempted to stop appellant. Appellant tried
to turn into the Pilot Travel Center, but missed the driveway, nearly ran into a ditch, and had
1
This is the second time this case has been before us. We initially ordered rebriefing
due to deficiencies in appellant’s brief, abstract, and addendum. See Reep v. State, 2015 Ark.
App. 538.
Cite as 2016 Ark. App. 21to correct himself. Appellant pulled to the gas pumps and contact was made by Officer
Runnels. Officer Runnels noticed that appellant smelled of alcohol. Appellant was asked to
step out of the car and had to use his hands on the door and side of the car in order to keep
his balance. An opened can of beer was observed in the center console and an unopened
thirty-pack of beer was in the back. Appellant denied having anything to drink, but Officer
Runnels stated that it was “very apparent. . . that he [appellant] had been drinking because
of the odor and how he was standing and swaying.” Appellant was administered field-sobriety
tests, which consisted of (1) horizontal-gaze-nystagmus test, (2) a walk-and-turn test, and (3)
a one-leg-stand test. Appellant failed all three tests. In fact, Officer Runnels had to stop the
final test for fear that appellant would fall and hurt himself. Appellant was placed under arrest
and taken to the police department. While at the police station, appellant consented to take
a breath test to determine his blood-alcohol content. Appellant was found to have a blood-
alcohol level of .26. Appellant was charged with violating Arkansas Code Annotated section
5-65-103.2
Appellant’s bench trial took place on October 31, 2014. Officer Runnels testified
about his encounter with appellant on the night of June 1. During his testimony, a video of
the stop was shown. Additionally, the results of appellant’s blood-alcohol test were admitted
into evidence without objection. Appellant made a motion for directed verdict3 at the
conclusion of the State’s case. In the motion, appellant stated that there was “no evidence of
2
(Supp. 2015).
3
Because this was a bench trial, appellant’s directed-verdict motion was actually a
motion to dismiss. See D.F. v. State, 2015 Ark. App. 656, ____ S.W.3d ____.
2
Cite as 2016 Ark. App. 21certification of the machine or the officer to give the test.” The court found that the evidence
was more than sufficient, and in fact, that it was overwhelming, to support the charge.
Appellant was found guilty of DWI.
The sentencing phase of appellant’s trial took place on November 4, 2014. During this
phase, appellant’s prior convictions for DWI were admitted into evidence without objection.
Appellant was sentenced based on DWI, sixth offense, to three years in the Regional
Correctional Facility, followed by two years’ suspended imposition of sentence. Appellant
filed a timely notice of appeal.
A motion to dismiss at a bench trial is identical to a motion for directed verdict at a
jury trial in that it is a challenge to the sufficiency of the evidence.4 The test for determining
sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports
the verdict.5 Substantial evidence is evidence of sufficient certainty and precision to compel
a conclusion one way or the other and pass beyond mere suspicion or conjecture.6 On appeal,
this court views the evidence in the light most favorable to the verdict, and only evidence
supporting the verdict will be considered.7
Under Ark. Code Ann. § 5-65-103, it is unlawful for any person who is intoxicated
to operate or be in actual physical control of a motor vehicle, or for any person to operate or
4
Gill v. State, 2015 Ark. 421.
5
Id.6
Id.7
Id.3
Cite as 2016 Ark. App. 21to be in actual physical control of a motor vehicle if at that time the alcohol concentration in
the person’s breath or blood was 0.08 or more.
For his first point on appeal, appellant argues that the State failed to produce evidence
of the machine being certified or that the officer was qualified to give the breath test.
Although appellant made a motion to dismiss based on the lack of evidence of certification,
he did not object to the test results being admitted into evidence. Furthermore, our court has
held that the reliability of a machine goes to the weight and credibility of the evidence, which
was within the purview of the court.8 Additionally, the statute provides two different ways
to prove the offense.9 Here, even if the test result was eliminated, the evidence was sufficient
to support the conviction: appellant was driving in the wrong lane and nearly hit Officer
Runnels’s patrol car when appellant attempted to go around it; appellant missed the driveway
of the gas station nearly running into a ditch and had to correct himself; appellant smelled of
alcohol and could not stand or walk without swaying; there was an open can of beer in the
center console of appellant’s car; and appellant failed all three field-sobriety tests.10 Therefore,
we affirm appellant’s conviction of DWI.
Next, appellant argues that the State failed to prove that this was his sixth offense.
Under Ark. Code Ann. § 5-65-122, a sixth or subsequent offense of DWI occurring within
8
See Perrigen v. State, 2015 Ark. App. 42.
9
See Porter v. State, 356 Ark. 17, 145 S.W.3d 376 (2004).
10
The entire encounter was captured on video.
4
Cite as 2016 Ark. App. 21ten years of a prior offense is a Class B felony.11 The State contends that this argument is not
preserved for appeal. We agree. Appellant never objected to this conviction being counted
as his sixth one in a ten-year period before the trial court. This court does not consider
arguments made for the first time on appeal.12
Affirmed.
GRUBER and HIXSON, JJ., agree.
Ogles Law Firm, P.A., by: John Ogles, for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
11
This statute was repealed by Acts of 2015, No. 299, § 6, eff. July 22, 2015.
12
Lewis v. State, 2014 Ark. App. 136.
5