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Campbell v. City of Alma11/13/2002
NOT DESIGNATED FOR PUBLICATION
The appellant in this case was arrested after two women delivered his car keys to the police station. One of the women said that she had seen him drunk and driving erratically earlier that morning, and the other woman confirmed that they had removed the keys from his vehicle when they found him a short distance away, passed out behind the wheel. The police officer investigated and found appellant asleep at the wheel of his vehicle, smelling of intoxicants and vomit. Appellant was arrested, tried, and convicted of driving while intoxicated, first offense. This appeal followed.
For reversal, appellant contends that the trial court erred in ruling as a matter of law that appellant was in actual control of his vehicle at the time of his arrest, that the evidence was insufficient to support his conviction, and that the testimony of his former fiancee was inherently lacking in credibility. We affirm.
Appellant's first argument misstates the facts and is irrelevant. There is no indication that the trial judge, who heard the facts in this non-jury trial, ruled or believed that appellant was in control of his vehicle "as a matter of law." Whether or not appellant was in actual physical control of his vehicle while intoxicated was a fact question, see Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989), and there is nothing in the record to indicate that the trial judge treated this as anything other than a fact question.
Furthermore, whether appellant was in control of the vehicle "at the time of his arrest" is irrelevant; the only pertinent question is whether the evidence supports a finding that appellant was at some time in actual physical control of the vehicle while intoxicated. See Ark. Code Ann. § 5-65-103 (Repl. 1997). Law enforcement officers need not actually witness an intoxicated person driving or exercising control of a vehicle in order to prove that the defendant was in actual control of the vehicle while intoxicated; instead, the State may prove by circumstantial evidence that a person operated or was in actual physical control of a vehicle. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Testimony of witnesses other than police officers may provide evidence that the defendant was actually operating the vehicle. See id.
Our standard of review regarding the sufficiency of the evidence to support a criminal conviction is well-settled:
On appeal in criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the state and affirm if there is any substantial evidence to support the trial court's judgment. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Because evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred. Ryan v. State, 30 Ark. App. 196, 199, 786 S.W.2d 835, 837 (1990) (citations omitted).
In the present case, there was testimony that, on September 1, 2000, Brandy Jones saw appellant in a parked vehicle. He appeared to have been vomiting and was apparently passed out. She testified that she observed beer bottles on the floor of appellant's vehicle. She woke him and spoke to him. He replied angrily and drove away erratically and without headlights, stopping a short distance away. Brandy and a friend subsequently returned to appellant's car, observed that he had again passed out, and removed the keys from the ignition. They then delivered the keys to a police off
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