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Kidwell v. State2/23/2005
NOT DESIGNATED FOR PUBLICATION
Appellant Thomas Kidwell was charged with the offense of fleeing, a Class D felony, and driving while intoxicated, an unclassified misdemeanor. A jury found Kidwell guilty of driving while intoxicated and the lesser-included offense of fleeing, a Class A misdemeanor. The trial court sentenced him to twelve months' imprisonment in the Polk County Jail on each count to run concurrently. Kidwell appeals his conviction on two grounds: (1) that the trial court erred in denying his motion for mistrial and (2) that there was insufficient evidence to support his fleeing conviction.
On December 21, 2003, at approximately 12:30 a.m., Deputies Godfrey and Peeples of the Polk County Sheriff's Department were traveling northbound on Highway 71 in Hatfield. After Deputy Godfrey saw a 1987 Pontiac 6000 run a stop sign, he decided to observe the car. The car crossed Highway 71. Deputy Godfrey turned off Highway 71 behind the car. The car was traveling over the speed limit and made an erratic right turn, meaning the car had to cross both lanes of the road to get back into its own lane. Deputy Godfrey tried to gain speed on the car, and the car ran another stop sign. Another car that was traveling on this road had to stop to keep from hitting the Pontiac.
Deputy Godfrey turned on his blue lights and sirens to initiate a traffic stop. The driver, Kidwell, did not stop. The car made another erratic turn onto a county road. Deputy Godfrey notified dispatch that he was in pursuit of a car. After the dispatch notification, the cars traveled for approximately one mile. According to the testimony of Deputy Godfrey, Kidwell at times was traveling at a top speed of approximately seventy miles per hour. The car began to slide off the road and narrowly missed hitting two telephone poles. The car traveled fifty feet through a ditch while running over fifty to sixty feet of fence and knocking fence posts in the air. The car came to an abrupt stop after it hit a corner fence post. Kidwell had two female passengers in the car. Deputy Godfrey arrested Kidwell immediately upon his exit from the car. At the jail, Kidwell failed two field-sobriety tests, and his blood-alcohol concentration was .09. Kidwell argues that there was insufficient evidence to support his fleeing conviction. Kidwell does not challenge the sufficiency of the evidence with respect to his conviction for driving while intoxicated. The trial court denied Kidwell's timely motions for a directed verdict.
The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). In reviewing a challenge to the sufficiency of the evidence, this court will view evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Simmons v. State, ___ Ark. App. ___, ___ S.W.3d. ___ (Dec. 8, 2004). Substantial evidence must be forceful enough to compel a conclusion beyond suspicion and conjecture. Williams, supra. Circumstantial evidence may constitute substantial evidence to support a conviction. E.g., Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).
"If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance." Ark. Code Ann. § 5-54-125(a) (Repl. 1997). Arkansas Code Annotated section 5-2-202(1) (Repl. 1997) provides that " person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause su
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