Opinion
CA CR 08-350
Opinion Delivered September 23, 2009
Appeal from the Madison County Circuit Court, [No. CR 2007-82-1], Honorable William A. Storey, Judge, Affirmed.
This case is again before us after we ordered rebriefing to correct deficiencies in Montgomery Dwight Heathman's abstract and addendum. Heathman appeals his conviction in a Madison County jury trial of third-offense driving while intoxicated. In the same proceeding, he was also convicted of driving on a suspended license and speeding, but he does not challenge those convictions. For these offenses, Heathman received an aggregate sentence of 100 days' imprisonment in the Madison County Jail and a fine of $6100. On appeal, Heathman argues that the trial court erred in 1) refusing to strike a portion of a police videotape on which he makes incriminating statements without having first been advised of his rights as set forth in Miranda v. Arizona; 2) allowing the State to present "inadmissible evidence" concerning a portable breath test; and 3) denying his motion for a directed verdict. We affirm.
On the morning of Heathman's trial, Heathman moved to exclude a videotape from the arresting officer's dashboard video camera. The trial court declined to take up the suppression issue, finding that it was not timely raised. It did, however, offer to consider objections made when the evidence was offered.
At Heathman's trial, Trooper Jeffery Ricketts of the Arkansas State Police testified that while on patrol on October 21, 2006, he met Heathman's 2004 white Cadillac Escalade traveling in the opposite direction. His radar indicated that Heathman's vehicle was going 70 miles per hour in a 50 miles-per-hour zone. Trooper Ricketts activated his blue lights and turned around to make a traffic stop. According to Trooper Ricketts, the vehicle "swerved and kept traveling west bound despite there being many places to pull over." Eventually, Heathman did pull over, and the rear windshield wiper came on even though there was no rain. When the trooper approached the Escalade on the passenger side, Heathman was just staring straight ahead with a "deer in the headlights" look. Trooper Ricketts noticed an open case of Bud Light beer behind the seat, with seven cans missing. He tapped on the window with his flashlight several times, and instructed Heathman to open the window. After "some fumbling," the window rolled down. Trooper Ricketts immediately smelled "the odor of intoxication." Heathman admitted that he had consumed "two beers."
Heathman consented to a portable breathalyser test, and after "several, several tests," the trooper finally got a reading. Over Heathman's objection, Trooper Ricketts stated that the test registered "beyond the legal limit." He then asked Heathman to step out of the vehicle to perform field sobriety tests. According to Trooper Ricketts, when Heathman got out, "he kind of staggered," at one point causing him to help Heathman when he staggered into his vehicle. Once they reached the area between Heathman's Escalade and Trooper Rickett's patrol car, however, Heathman declined to participate in field sobriety tests. Trooper Ricketts then handcuffed Heathman and placed him in his patrol car. Trooper Ricketts stated that based on "all my observations, I came to the conclusion that there wasn't a doubt in my mind that he wasn't a DWI. He was intoxicated and, in my opinion, a danger on the highway."
The State then played the tape from Trooper Ricketts's dashboard camera. The transcript of the tape that Heathman included in his brief indicated that Trooper Ricketts was unable to get a reading from the portable breathalyser because Heathman was not "blowing" into the device steadily and was instead blocking the air flow with his tongue. Additionally, Heathman stated that he was driving on a suspended license and that he had two prior DWI convictions. When Trooper Ricketts told Heathman that he needed to take him in for a blood test, Heathman stated, "Well, you know, you and I both know a couple of beers is a couple beers, and . . . [that is] enough to blow to get a DWI number three." The transcript also showed that Trooper Ricketts had difficulty running Heathman's driver's license and that Heathman admitted that he deceived the trooper to conceal the fact that his DWI convictions were more recent than he had previously stated. At the conclusion of the tape, Heathman asked for, and received, an instruction for the jury to disregard any mention of prior DWI convictions.
After the State rested, Heathman presented the testimony of his son-in-law, Michael Bailey, who opined that Heathman had drunk only one or two beers from the twelve pack. He admitted, however, that Bud Light was not Heathman's beer of choice and that he did not know if Heathman had consumed other alcoholic beverages. Heathman also testified and denied being intoxicated. He explained that he declined to perform field sobriety tests because he knew he could not perform "any kind of test in a bunch of reeds and rocks in a ditch on a slope." He also claimed that he was completely cooperative with Trooper Ricketts, denied trying to deceive him, asserted that he did not have any trouble walking, and stated that he did not obstruct the airflow in the portable breathalyser test.
In order to preserve a defendant's right to freedom from double jeopardy, we consider the sufficiency of the evidence before addressing other alleged trial errors. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Heathman argues that the trial court erred in denying his motion for a directed verdict because the tape taken by the arresting officer's dashboard camera showed "straight driving," the portable breath test was administered seven times without giving a reading, and he refused to submit to field sobriety tests because he was parked in a "ditch." He contends that his refusal to take field sobriety tests "should not be evidence of intoxication where such refusal is clearly the product of good judgment and sobriety." Heathman acknowledges that Trooper Ricketts opined that he was driving while impaired, but asserts that viewing the tape is "critical" to this case because it will show that he never "weaved or bobbled" while driving and that he pulled over soon after the officer approached his car with blue lights on when he found a "good place." He further testified that he identified himself without being asked for his driver's license and readily agreed to take the portable breathalyser test. Heathman asserted that he declined to perform field sobriety tests because the Trooper asked him do so in a "ditch," had no difficulty following Trooper Ricketts's instructions, did not "slur" any words, and truthfully gave his name and driver's license number. We reject Heathman's arguments.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in a light most favorable to the State, and affirm if substantial evidence supports the jury verdict. Id. We only consider evidence supporting the guilty verdict. Id.
We note first that Rule 33.1(a) of the Arkansas Rules of Criminal Procedure mandates that in a jury trial, "If a directed verdict motion is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all the evidence," and that the motion "shall state the specific grounds therefor." Here, Heathman essentially made the same argument that he raises on appeal at the close of the State's case. After he put on a defense, he asserted that he was "simply renewing" that motion. However, he also argued that the trial court erred in admitting the videotape where he made un-Mirandized statements regarding prior DWI convictions. This argument is not properly part of a challenge to the sufficiency of the evidence, because in determining the sufficiency question, we disregard any alleged trial errors. Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996).
We hold that the testimony of Trooper Ricketts that Heathman was obviously impaired and that he had observed Heathman's vehicle swerve on the highway, along with Heathman's admission that he had consumed enough alcohol to register above the legal limit constitutes substantial evidence sufficient to sustain his conviction.
We decline Heathman's invitation to view the tape and reach a different conclusion. Despite our having previously remanded this case to Heathman with a suggestion that he include a copy of the video in his addendum, he declined to do so. Instead, we only received a transcript that obviously did not show the quality of his driving or his speech. It is axiomatic that the record on appeal is limited to what is included in the briefs and the abstract, and the burden is clearly placed on the appellant to provide an abstract and addendum sufficient for appellate review. See Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999). Furthermore, Arkansas Supreme Court and Court of Appeals Rule 4-2(b)(3) authorizes us to affirm if an appellant fails to correct an omission in his or her abstract or addendum.
Heathman next argues that the trial court erred in refusing to strike the portion of the videotape recording the events after he had been arrested and had not been advised of his rights as set forth in Miranda v. Arizona, 396 U.S. 868 (1969). He specifically complains about his statements that he had been convicted of two previous DWI's. We note, however, that Heathman did not timely file to suppress the statements as required by Rule 16.2 of the Arkansas Rules of Criminal Procedure. Failure to follow Rule of Criminal Procedure 16.2(b) by filing a pre-trial motion to suppress would have justified the circuit court's outright denial of his at-trial motion. Holt v. State, 15 Ark. App. 269, 271, 692 S.W.2d 265, 267 (1985). However, the trial court exercised discretion and offered Heathman the opportunity to "take this up as it's presented." Heathman, however, did not object to the portion of the tape where he made his incriminating statements until after the tape had been played. The failure to object at the first opportunity waives any right to raise that point on appeal. Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000).
For his final point, Heathman argues that the trial court erred by allowing the State to present "inadmissible evidence" concerning a portable breath test. We agree that the results of the test are inadmissible in a criminal trial, absent substantive proof that the test is reliable. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003). Nonetheless, we cannot reverse on this point. In his opening statement, Heathman raised the issue of the portable breathalyser tests, asserting that he was required to take the test multiple times because "likely the readings were very low." This assertion provided the State with a basis for introducing evidence that Heathman tested above the legal limit. In Lowry v. State, 364 Ark. 6, 216 S.W.3d 101 (2005), the supreme court stated that under these circumstances, introduction of otherwise inadmissible evidence would be "harmless." We are bound by Lowry.
Affirmed.
VAUGHT, C.J., and GRUBER, J., agree.