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Porter v. State2/5/2004
court has consistently refused to hear arguments raised for the first time on appeal. See, e.g., Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003); Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002); Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002). We turn then to the remaining point on appeal.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003); Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. If material and relevant evidence is not in dispute or there is a conflict in the evidence to the extent that fair-minded persons might draw different conclusions therefrom, the evidence is substantial. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only that evidence tending to support the verdict. Johnson, 337 Ark. 196, 987 S.W.2d 694.
At the time of Porter's accident, Ark. Code Ann. § 5-65-103 (Repl. 1997) provided:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person's blood as determined by a chemical test of the person's blood, urine, breath, or other bodily substance.
This court has consistently recognized that this statute provides two different ways to prove the offense of DWI: (1) proving a blood-alcohol content greater than the limit provided in subsection (b), or (2) proving intoxication under subsection (a). See, e.g., State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996); Stephens v. State, 320 Ark. 426, 898 S.W.2d 435 (1995); Yacono, 285 Ark. 130, 685 S.W.2d 500.
In the present case, the court of appeals erroneously held: "In order to convict, the State must prove all elements under both subsections of Ark. Code Ann. § 5-65-103." Porter, ___ Ark. App. at ___, 120 S.W.3d at 181 (citing Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988)). However, a close examination of Neble reveals that the court of appeals misinterpreted that holding. In Neble, the appellant was charged under subsection (a) of section 5-65-103. On appeal, he challenged the sufficiency of the evidence to convict him. The Neble court held that under subsection (a):
The state must prove beyond a reasonable doubt every element of the crime charged. Therefore, the state must prove not only that appellant was intoxicated, but also that he operated or was in actual physical control of a motor vehicle while intoxicated.
Id. at 166-67, 762 S.W.2d at 395 (citation omitted). Clearly, this holding does not support the court of appeals' position in this case that the State is required to prove all elements under both subsections of section 5-65-103.
In the present case, the State did not present evidence showing that Porter had a blood-alcohol content of 0.10% or greater. As such, there was not substantial evidence to convict Porter under section 5-65-103(b). The question then is whether there was substantial evidence to convict under subsection (a). Viewing the
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