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Buckley v. State

Court of Appeals of Arkansas, Division IV

October 1, 2014

JOEL BUCKLEY, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 560

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NOS. CR 2011-1798-1, CR 2012-310-1, and CR-2012-1567-1. HONORABLE WILLIAM A. STOREY, JUDGE.

David Hogue, for appellant.

Dustin McDaniel, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

ROBIN F. WYNNE, Judge. GLOVER, J., agrees. HARRISON, J., concurs.

OPINION

Page 561

ROBIN F. WYNNE, Judge

Joel Buckley appeals from his convictions on charges of failure to appear and driving while intoxicated (fourth offense). He argues on appeal that the trial court erred by allowing his former attorney to testify regarding a conversation between her and appellant and by allowing testimony at trial regarding a portable breath test administered by police. The trial court's sentencing order is affirmed in part and reversed and remanded in part.

Appellant was charged with two counts of failure to appear and one count of driving while intoxicated (fourth offense). Prior to trial, the State issued a subpoena to appellant's former attorney, Autumn Tolbert, directing her to testify at trial. Appellant filed a motion to quash the subpoena, which was denied by the trial court. Appellant's trial for the driving while-intoxicated offense and a separate failure-to-appear charge, which had been set for July 15, 2012, was continued until September 19, 2012. Appellant did not appear on September 19, 2012. At trial, Ms. Tolbert testified that the practice in the trial court before which appellant was tried was for attorneys to advise their clients of a new trial date when a new date was issued. She advised appellant of the September 19, 2012 court date by telephone.

Officer Garrett Levine, who arrested appellant on suspicion of driving while intoxicated, testified at trial that he pulled appellant over because the license plate on his pickup truck was registered to a sports-utility vehicle. He noticed that appellant's speech was slurred and his eyes were bloodshot and glassy. Officer Levine testified that he administered a horizontal gaze nystagmus (HGN) test to appellant prior to his arrest. According to Officer Levine, appellant declined the other field-sobriety tests due to gout. Appellant was taken to the hospital after complaining of low blood sugar and refused to take either a breath or blood test. Officer Levine also testified, over appellant's objection, that he administered a portable breath test to appellant and concluded that appellant was intoxicated based on the results.

The jury found appellant guilty of two counts of failure to appear and one count of driving while intoxicated (fourth offense). He was sentenced to eighty-four months' imprisonment for the failure to appear that occurred on September 19, 2012, thirty-six months' imprisonment for the failure to appear that occurred on February 23, 2012, and seventy-two months' imprisonment for the offense of driving while intoxicated (fourth offense). The sentences were ordered to be run consecutively, for a total sentence of 192 months' imprisonment. This appeal followed.

Appellant's first argument is that the trial court erred by allowing appellant's former attorney to testify regarding the phone call in which she advised appellant of the September 19, 2012 court date. Matters pertaining to the admissibility of evidence and rulings on relevancy are left to the trial court's sound discretion. Turner v. State, 2014 Ark.App. 428, 439 S.W.3d 88. We will not reverse a trial court's evidentiary ruling absent an abuse of that discretion and a showing of prejudice. Id. Abuse of discretion is a high threshold that does not simply require error in the trial court's decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Id.

Arkansas Rule of Evidence 502(b) ...


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