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SPRINGSTON v. STATE2/25/1998
his rights under the implied consent law. Johnson testified that appellant kept stressing the point that he was not driving a vehicle and thus would not state that he understood the obligation to take the test. He said that appellant told him that he would take a test if charged with public intoxication, but not if the charge was DWI. A videotape of these discussions was introduced and played for the jury over the appellant's objection.
The State also presented the testimony of Kenneth Wilburn, appellant's neighbor. He testified that he saw appellant and another man get into separate vehicles that afternoon at around 2:00 p.m. He said that they left in a hurry, that the wheels of both vehicles were spinning, and that they drove erratically up a hill. Wilburn testified that this was not too unusual because there was loose gravel on the hill but that he had, nevertheless, been concerned. He later noticed that several young trees to the side of the road had been run over.
Appellant's argument is that the State failed to prove that he either operated or was in actual physical control of a vehicle. He relies chiefly on our decision in Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992). There, the appellant was one of a group of individuals associated with a vehicle that had struck a tree. The officer had not seen the appellant driving the vehicle, and we concluded that the evidence was not sufficient to sustain a finding that appellant operated or was in physical control of the vehicle. The State maintains that the facts of this case compare more favorably with those found in our decision in Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). In that case, witnesses heard an accident near their home, and they went to the scene where they discovered a vehicle that had come to rest in a ditch after tearing down some fifty to sixty feet of a fence. The vehicle was unoccupied, and the witnesses contacted a deputy who lived nearby when they were unable to locate the driver. The deputy and other law enforcement officers arrived and began looking for the driver. During the search, the officers learned that the vehicle was registered in the appellant's name, and they received a report that a man, later identified as the appellant, had come to the deputy's home and had told the deputy's wife that his car had broken down. The appellant had left by the time the deputy arrived at his home, but he was eventually found lying face down in a ditch three hundred feet from the wrecked vehicle. When questioned, the appellant told an officer that he had not been driving the vehicle but that the driver was a man named "Bill," whom he had met at a tavern. On this evidence, we held that the jury, without speculating, could have concluded that the appellant was driving the vehicle when the accident occurred.
Turning to the case at hand, we first observe that the statute does not require law enforcement officers to actually witness an intoxicated person driving or exercising control of a vehicle. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994); Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989). It is well-settled that the State may prove by circumstantial evidence that a person operated or was in actual physical control of a vehicle.
Wetherington v. State, supra; Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). Circumstantial evidence may constitute
substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). The question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Key v. State, 325 Ark. 73, 923 S.w.2
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