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Fiveash v. State

Court of Appeals of Arkansas, Division III

March 18, 2015

TIMOTHY A. FIVEASH, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE BOONE COUNTY CIRCUIT COURT. NOS. CR 2013-208-4; CR 2013-209-3. HONORABLE ROBERT McCORKINDALE, JUDGE.

AFFIRMED.

Kimberly Eden, for appellant.

Dustin McDaniel, Att'y Gen., by: Laura Kehler Shue, Ass't Att'y Gen., for appellee.

KINARD and BROWN, JJ., agree.

OPINION

Page 775

ROBERT J. GLADWIN, Chief Judge.

On March 31, 2014, Timothy Allen Fiveash was convicted in the Boone County Circuit Court of driving while intoxicated and driving on a suspended license.[1] On appeal, he argues that there was insufficient evidence to convict him of either count, and he contends that the trial court erred in admitting as evidence a copy of his restricted license.[2] We affirm.

At appellant's bench trial, Boone County Deputy Gene Atwell testified that he was the first officer on the scene of the one-car accident on Quail Road, where appellant's vehicle had left the roadway, tangled in a fence, and landed in a ditch on the right side of the road. Atwell described appellant as " excited" and said that appellant would not " stand still long

Page 776

enough to talk to me." Atwell testified as follows:

I asked him to walk up the hill and stand in front of my patrol car. The ditch was four to five feet, so it was a small hill. Mr. Fiveash did not comply with my request the first two times. He complied on my third request. He got to the top of the hill and asked which car. I told him the only car with the blue lights on. At that point, he started to walk down the road away from my vehicle saying he needed to find somebody to get his vehicle out. I asked him to come back to the car. He stopped and looked at me. He said something I couldn't hear, so I went after him and asked him to come back to my vehicle. We walked to the front of my car. I tried to talk to him and he took off down the road the other way. Once again, I went and got him and brought him back to the front of my vehicle. He was very hard to talk to. He was all over the place and I couldn't get his attention.

Atwell said that appellant denied having taken any drugs or drinking, and again, appellant began to walk away.

Deputy Brad Duck testified that he performed field-sobriety tests on appellant, and the tests were videotaped from his police vehicle. The videotape was introduced and played for the circuit court. Duck said that appellant failed the horizontal-gaze-nystagmus test because appellant kept turning his head rather than following the officer's finger movement with his eyes. Appellant also failed the walk-and-turn test, where appellant was to stand with one foot in front of the other, heel to toe, hands down to the side, and take a series of nine steps, at the end of which, he was to turn around and walk back. Duck said that appellant was unable to pay attention to his commands. Finally, appellant was unable to perform the one-leg stand, which was holding one foot six inches off the ground for several seconds. Duck said that appellant tried several times and almost fell over at ...


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