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Moy v. State10/23/2002
NOT DESIGNATED FOR PUBLICATION
Appellant Nelson Moy was charged with driving while intoxicated and violation of the implied consent statute, found at Ark. Code Ann. § 5- 65-205(d)(1) (Repl. 1997). There were other offenses charged in relation to this incident (reckless driving, driving on a suspended driver's license, and having no proof of insurance), but those were nolle prossed. Prior to trial, appellant pleaded guilty to driving while intoxicated. A bench trial was conducted on the remaining charge of violating the implied consent statute, and appellant was found guilty. Appellant appeals challenging the sufficiency of the evidence to support his conviction. We affirm.
When the sufficiency of the evidence is challenged on appeal, the test is whether the evidence is substantial. Diehl v. State, 63 Ark. App. 190, 975 S.W.2d 878 (1998). Evidence is substantial if it is forceful enough to compel a conclusion one way or another and goes beyond mere speculation or conjecture. Id. Our court reviews the evidence in the light most favorable to the State and considers only evidence that supports the verdict. Id. A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. E.g., Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000); Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). We do not determine the credibility of the witnesses; that duty is left to the trier of fact. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000); Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).
We review the following evidence produced at this bench trial in light of our standard of review. Officer Jimmy Evans of the Little Rock Police Department testified that appellant's vehicle had been pulled over, and he was called to the scene to administer a portable breathalyzer test. At the scene, appellant attempted several times to blow into the portable breathalyzer testing machine, but his breath would not register at all. Evans believed that appellant was blowing air through his nose instead of his mouth and that appellant was "pretty well intoxicated."
Evans then transported appellant to the Pulaski County Detention Center, where Evans advised appellant of his rights regarding chemical testing and presented a rights form. The form contained the implied consent law, the assertion that a test or tests would be administered to determine his level of intoxication, and the statement that if he refused to take any of the tests requested by the officer, then he would be subject to the penalties provided by law for such refusal. The form also indicated that if he took the officer's test or tests, then he would have the right to an additional test or tests. Appellant indicated that he understood his rights, he initialed the form indicating that he understood, and he refused the breathalyzer test. Appellant signed his name to the form, but wrote above his signature "urine test" and underlined those words. Officer Evans told appellant that a breathalyzer test was the test to be administered and that if he wanted a urine test, he had a right to one after the breathalyzer test was completed. Officer Evans indicated to appellant that this procedure was in line with what the rights form indicated. Appellant responded, "Just put me in jail." The State rested on the officer's testimony.
Appellant moved for a directed verdict asserting that he could not make a knowing, intelligent waiver of any rights due to his state of intoxication. Appellant also argued that he was undoubted
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