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Oliver v. State12/23/2002
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
Appellant pled guilty to the charge of driving while intoxicated, fourth offense. A jury sentenced her to seventy-two months' imprisonment. Her only issue on appeal is that the circuit court erred by asking defense witness Ricky Oliver a question posed by a juror about when appellant had a miscarriage. We disagree and affirm.
On November 6, 2001, appellant pled guilty to fourth offense driving while intoxicated, driving on a suspended or revoked driver's license, and careless and prohibited driving. Pursuant to Ark. Code Ann. § 16-97-101(6) (2001), a jury was empaneled to hear evidence and sentence appellant. The jury sentenced her to six years' imprisonment in the Arkansas Department of Correction, fined her $900, and revoked her license for three years. The circuit court sentenced appellant to ten days in jail for the driving on a suspended license offense, which was to run concurrently with the prison sentence, and to a $100 fine for the careless and prohibited driving offense, which was to be concurrent with the $900 fine the jury imposed. Appellant appeals from the sentence imposed for the DWI offense only.
Appellant argues that the circuit court erred in denying defense counsel's objection, based on the "probative value versus unfair prejudice" balancing test of Ark. R. Evid. 403, to the circuit judge's asking defense witness Ricky Oliver when appellant had a miscarriage.
"Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401. Arkansas Rule of Evidence 403 provides that " lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Appellant argues that the probative value of Mr. Oliver's testimony as to when the miscarriage occurred was substantially outweighed by the danger of unfair prejudice and that the trial court abused its discretion when it refused to exclude it on that basis. The fact that evidence is prejudicial to a party is not, in itself, reason to exclude evidence. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001). The danger of unfair prejudice must substantially outweigh the probative value of the evidence. The standard of review is abuse of discretion. Id.
Here, Mr. Oliver, the only defense witness, testified that he thought his wife had a drinking problem after the first DWI in February 1999. He stated that she had two more DWIs, one in August 1999 and the other in April 2000. He was a truck driver and often away from home. He stated that the last DWI really got his attention. He testified that the effect of her drinking problem on their family was drastic, stating that they had lost their home and he had to quit going on the road so that he could take care of her. He testified that he wished he had known of her problem sooner so that he could have been there when she needed him. He added that "last year she lost a baby, right before this. That was real tough. Extremely tough. We lost a six-week old baby." On cross-examination, Mr. Oliver stated that "I feel with me not being there and helping her through the problems that we were having with the miscarriage of the baby and everything, it's took a lot of stress onto her and she . . . just couldn't stay awake or nothing and it was really affecting everybody pretty bad."
The defense reste
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