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Campbell v. State4/23/2003
NOT DESIGNATED FOR PUBLICATION
A jury sitting in the Pulaski County Circuit Court convicted the appellant, Jeannie Campbell, of driving while intoxicated, refusing to take a breath test, and careless driving and sentenced her to pay a $1,000 fine plus court costs and to perform forty hours of community service. On appeal, she claims that the trial court abused its discretion by allowing the prosecuting attorney to cross-examine her about a prior DWI conviction. We affirm.
At trial, Pulaski County Sheriff's Deputy R. Sturd testified that he initially observed appellant weaving within her lane. As he continued to observe her, she left her lane and went to the right, came back into her lane and then went onto the shoulder. While she remained on the shoulder, Deputy Sturd initiated a traffic stop. He testified that, upon reaching appellant, she smelled of intoxicants and, when he requested that she move to the back of the car, she was "very unsteady" on her feet. He then performed three field sobriety tests on appellant. She failed all three tests. On the horizontal-gaze-nystagmus test, appellant failed six out of six clues that the police use to determine intoxication. On the walk-and-turn test, which consists of nine steps down and nine steps back, appellant failed to execute the proper heel- to-toe method on seven of the nine steps on the way down and on eight of the nine steps on the way back. On the final test, the one-leg stand test, appellant attempted to stand on one foot with the other foot six inches off of the ground for roughly thirty seconds. She made three attempts with her best attempt lasting only four seconds. After being arrested, appellant refused to take a blood-alcohol content test.
Appellant asserts that the trial court abused its discretion by allowing the State to violate Arkansas Rule of Evidence 609 when it cross-examined her about a prior DWI conviction. That rule states: For purposes of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment. Ark. R. Evid. 609 (2002).
An appellant may not change the basis of an objection on appeal. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Instead, appellant is bound by the scope and nature of the arguments made at trial. Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Here, appellant failed to object below on the grounds that Arkansas Rule of Evidence 609 prohibited the State from cross-examining her about her previous DWI conviction. Instead, she initially objected on the generic ground of the State's question being "chicanery at its worst." Then she asked the court whether it was going to let the State impeach her "on a conviction that occurred after this [arrest]." After appellant answered the State's question, she renewed her objection and called for a mistrial stating, "What he just said is a mistrial. He has asked her if she pled guilty to being intoxicated, and then he brought in the date. And that's mistrial, Judge."
At trial, appellant never mentioned Rule 609 or suggested that her conviction should not be the basis for cross-examination because it was merely a misdemeanor. Instead, appellant's concern was that the DWI occurred after the incident that was being tried. Similarly, in Green v. State, supra, the supreme court held that a defendant who objected to the admission of a misde
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