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Sidney v. Walters3/20/1997
THOMAS F. BRYANT, Judge.
This appeal is brought by defendant-appellant Dale M. Walters from a judgment of the Sidney Municipal Court.
On January 9, 1996, Walters was stopped after the officer observed him driving erratically. The officer conducted a field test and arrested Walters for driving under the influence of alcohol. Walters refused a chemical test.
On April 30, 1996, this case was heard before a jury. On May 2, 1996, the jury returned a verdict of guilty. Walters filed his notice of appeal on May 30, 1996.
Walters makes the following assignments of error:
"The trial court erred in not taking corrective action when the prosecutor engaged in misconduct in her cross-examination of Walters concerning witnesses not called, including suggestions of what that potential testimony might have been.
"The trial court erred in not taking corrective action when the prosecutor engaged in misconduct by arguing that Walters' failure to call witnesses was because that testimony would have been unfavorable to him without a basis in thsevidence for that argument, in expressing a personal opinion that Walters was guilty, in expressing a personal opinion on the credibility of the witnesses, and in making statements concerning Walters' state of sobriety not based on the evidence."
App. R. 18(C) states:
"If an appellee fails to file his brief within the time provided by this rule, or within the time as extended, he will not be heard at oral argument * * * and in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action."
Here, the state has failed to file a brief. We are accepting Walters's statement of facts and issues as correct pursuant to App. R. 18(C). Upon a reading of the brief, Walters's argument reasonably supports a reversal. Therefore, we do not address the individual assignments of error.
The judgment of the Sidney Municipal Court is reversed, and the cause is remanded for further proceedings.
Judgment reversed and cause remanded.
SHAW, J., concurs.
HADLEY, J., concurs separately.
HADLEY, Judge, concurring separately.
I concur with the majority opinion for the following reasons.
Appellant Dale M. Walters appeals from his conviction of driving under the influence . After a jury trial, appellant was convicted and sentenced to a term of ninety days' imprisonment, with forty-five days suspended, and assessed a $750 fine plus court costs. Execution of his sentence was stayed pending this appeal.
On January 9, 1996, appellant went to dinner with some friends and drank three beers while there. After dinner, appellant left for work a few hours later and stopped at a house to see if an employee scheduled to work the second shift was there. No one answered the door and appellant was asked to leave by a police officer who appeared shortly after appellant's arrival at the house. Appellant left the neighborhood and began traveling to his job. En route to his job, appellant was stopped for erratic driving in the parking lot of his job sitesPursuant to his stop, appellant performed a field test and was subsequently arrested for driving under the influence of alcohol. Appellant was then taken to a police station, where he refused a chemical test.
On April 30 and May 2, 1996, appellant was tried before a jury, and a guilty verdict was returned. At his trial, the prosecutor questioned appellant abou
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