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Polk v. State4/30/2003
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Appellant Latricia Polk appeals from a jury conviction in which she was found guilty of driving while intoxicated; aggravated assault against a family member; aggravated assault; first-degree battery; first-degree domestic battery; no liability insurance; no driver's license; and no child passenger protection as a result of a two-vehicle accident. She was sentenced to twenty-seven years in prison. Appellant argues that the trial court abused its discretion when it allowed a state trooper to testify regarding the rate of speed her vehicle was traveling when the accident occurred. We find no reversible error and affirm.
On June 22, 2001, appellant was driving down Ashley County Road 17 in Ashley County, Arkansas, when her vehicle collided head on with another vehicle containing driver Robert Gray, his wife, Kimberly Gray, and their two children. Inside appellant's vehicle were four children between the ages of five to thirteen. Upon impact of the two vehicles, everyone from appellant's vehicle was ejected. While there were no fatalities, everyone sustained some type of injury and one of the four children in appellant's vehicle and one of the Gray's children were seriously injured. Appellant was charged with (1) driving while intoxicated, Ark. Code Ann. § 5-65-103; (2) aggravated assault against a family member, Ark. Code Ann. § 5-26-306; (3) aggravated assault, Ark. Code Ann. § 5-13-204; (4) first-degree battery, Ark. Code Ann. § 5-13-201; (5) first-degree domestic battery, Ark. Code Ann. § 5-13-201; (6) no liability insurance, Ark. Code Ann. § 27-22-104; (7) no driver's license, Ark. Code Ann. § 27-16-602; and (8) no child passenger protection, Ark. Code Ann. § 27-34-104.
At trial, appellant admitted consuming alcohol prior to the accident and being legally intoxicated at the time of the collision. Officer Donham, the state trooper who investigated the accident, testified that appellant was traveling eighty-one miles per hour at the time of the accident. Appellant objected to his testimony because Officer Donham was not an accident reconstruction expert. The trial court allowed the testimony. The jury convicted appellant of the above mentioned charges and sentenced her to prison. This appeal followed. Appellant argues that Officer Donham should not have been allowed to testify about the speed her vehicle was traveling when the accident occurred. She asserts that his lay opinion was based on a computer calculation using measurements he took at the scene of the accident, and that there was no foundation laid to show the source of the computer program or its reliability or accuracy. The argument that appellant now advances was not raised to the trial court. It is well settled that this court does not consider arguments raised for the first time on appeal. Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001). Because appellant failed to object to the reliability and accuracy of the computer program Donham used to base his opinion as to the speed of appellant's vehicle, her present argument is not preserved for appellate review. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).
To convict appellant of the underlying charges of aggravated assault against a family member, aggravated assault, first-degree battery, and first-degree domestic battery, the State was obligated to prove that under circumstances manifesting extreme indifference to the value of human life, appellant purposefully engaged in conduct creating a substantial danger of death or serious physical injury or did cause serious physical injury. See Ark. Code Ann. § 5-26-306 (Repl. 1997); Ark. Code Ann. § 5-13-204 (Repl. 1997); Ark. Code Ann. § 5-13-201 (
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