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Fowler v. State

Court of Appeals of Arkansas, Division I

September 10, 2014

MICHAEL GENE FOWLER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. 23CR-12-852. HONORABLE CHARLES E. CLAWSON, JR., JUDGE.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., and Richmond Giles, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.

WYNNE and HIXSON, JJ., agree.

OPINION

Page 42

WAYMOND M. BROWN, Judge.

Appellant appeals his conviction by jury of negligent homicide, for which he was sentenced to forty years in the Arkansas Department of Correction.[1] His sole point on appeal is that the State failed to prove an essential element of negligent homicide, specifically, that it failed to prove that his blood alcohol content (BAC) was 0.08 or more at the time of the accident. We affirm.

On August 15, 2012, after drinking beer and whiskey with Matthew Ballard and Zachary Koontz at a swimming hole at Cadron Creek,[2] appellant drove the three of them from the swimming hole toward Morrilton. Appellant drove at a high rate of speed despite being asked by his friends to slow down. While speeding, appellant hit and killed a twelve-year-old boy who had been riding an ATV. Ignoring requests from his passengers to stop and render aid to the child, appellant continued to flee the scene, even when threatened at knifepoint by Ballard. At some point, he pulled over to let Ballard out. He then continued driving, intending to take Koontz to a local hospital.

Pursuant to a " be on the look out" report, appellant was pulled over approximately one hour after the accident. He was taken to a Conway Regional Medical Center to have his blood drawn as required by state law. His blood was drawn at 8:30 pm. A later test on the drawn blood showed his blood alcohol content (BAC) as 0.16.

On August 17, 2012, the State filed a felony information charging appellant with negligent homicide due to intoxication pursuant to Arkansas Code Annotated section 5-10-105(a)(1)(A).[3] An amended felony information was filed on March 13, 2013, changing the charge to negligent homicide due to a BAC of 0.08 or more pursuant to Arkansas Code Annotated section 5-10-105(a)(1)(B)(i).

A jury trial was conducted on March 20 and 21, 2013. After the State rested its case, and again after appellant rested his case, appellant moved for a directed verdict

Page 43

on the grounds that the State failed to prove " that his blood alcohol content at the time of the accident was .08%, in other words, DWI, and that his intoxication was in fact the cause of the accident." The court denied both motions. The jury returned a verdict of guilty of negligent homicide. It recommended a sentence of forty years in the Arkansas Department of Correction and a fine of $15,000.00. A sentencing order reflecting the jury's recommendation was entered on March 27, 2013. It is from this order that appellant timely appeals.

Appellant argues that the trial court erred as a matter of law in denying his motion for directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence.[4] In a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the conviction.[5] This court will affirm a conviction when there is substantial evidence to support it, and substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a ...


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