Cite as 2020 Ark. App. 174 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-01 14:55:29 Foxit PhantomPDF Version: 9.7.5 DIVISION IV No. CR-19-374
Opinion Delivered: March 11, 2020
APPEAL FROM THE LONOKE ANITA ROWTON COUNTY CIRCUIT COURT APPELLANT [NOS. 43CR-13-496 & 43CR-18-305]
V. HONORABLE BARBARA ELMORE, JUDGE
STATE OF ARKANSAS REVERSED AND REMANDED IN APPELLEE PART; REVERSED AND DISMISSED IN PART; AFFIRMED IN PART
KENNETH S. HIXSON, Judge
Appellant Anita Rowton was serving probation in case no. 43CR13-496 (hereinafter
referred to as CR13-496). While on probation, appellant was involved in a single-vehicle
accident and was cited with driving while intoxicated (DWI), refusal to submit to a chemical
test, and careless and prohibited driving. Appellant was convicted of all three offenses in a
bench trial in the Lonoke County Circuit Court in case no. 43CR-18-305 (hereinafter
referred to as CR18-305). Appellant was sentenced to an aggregate term of twelve months
in the county jail. Immediately following the bench trial, appellant was tried and found
guilty of violating the terms and conditions of her probation in CR13-496. The circuit
court sentenced appellant to serve an aggregate term of eighteen months’ imprisonment
followed by eighteen months’ suspended imposition of sentence (SIS). On appeal, appellant
contends that there was insufficient evidence to convict her of DWI in CR18-305 and that there was insufficient evidence that she violated the terms and conditions of her probation
in CR13-496. In CR18-305, we reverse appellant’s DWI conviction and remand. In
CR13-496, we reverse and dismiss the circuit court’s revocation as it pertains to the third-
degree-escape and public-intoxication charges, and we affirm the circuit court’s revocation
as it pertains to the charges of breaking or entering and theft of property.1
I. Relevant Facts
A. CR-18-305
Around 9:50 a.m. on February 2, 2018, appellant’s vehicle ran off the road when she
was driving around a sharp curve. The front airbags deployed, and the vehicle was wedged
on top of a tree stump in a row of trees along the side of the road. Appellant exited her
vehicle and walked to the nearest residence for assistance. Shortly thereafter, a driver of
another vehicle stopped to also provide assistance. Law enforcement subsequently arrived
and observed appellant’s behavior at the scene. The officer testified that appellant was
generally disoriented, incoherent, and had slurred speech. Appellant was transported to the
sheriff’s department where she was given a Breathalyzer test. Appellant tested 0.00%. The
officer then asked appellant to submit to a urinalysis, and appellant refused. Appellant was
arrested and charged with DWI in violation of Arkansas Code Annotated section 5-65-103
(Repl. 2016), refusal to submit to a chemical test in violation of Arkansas Code Annotated
section 5-65-205 (Supp. 2019), and careless and prohibited driving in violation of Arkansas
1 This is the second time this case is before us. In Rowton I, we remanded to settle and supplement the record, and we ordered rebriefing after the record was settled and supplemented. Rowton v. State, 2019 Ark. App. 538. Pursuant to our opinion issued in Rowton I, the circuit court has filed amended sentencing orders, and the parties have filed their substituted briefs. 2 Code Annotated section 27-51-104 (Repl. 2010). After appellant was found guilty by the
Lonoke County District Court, she appealed to the circuit court. The circuit court held a
bench trial on December 5, 2018.
At the circuit court trial, Deputy Robbie McCain testified that he was dispatched to
the scene of a single-vehicle accident, arriving around 9:50 a.m. Deputy McCain stated
that when he arrived, he saw a white Audi in the ditch in the tree line stuck on top of a
tree stump. Appellant was sitting in the vehicle on the passenger side with the door open.
Other bystanders and first responders were standing around. Deputy McCain stated that he
did not observe any skid marks on the road, which meant that the vehicle never slowed
down before it left the roadway. Upon speaking with appellant, she appeared to be a little
distraught and disoriented. Her speech was slurred; she was having trouble making coherent
sentences; and her movements were swayed a little bit. She denied consuming any alcohol,
and Deputy McCain did not notice any odor of intoxicants. Deputy McCain testified that,
because it was cold and windy, he placed appellant in the rear seat of his patrol car to warm
up. Later, when he returned to his patrol car, he smelled an odor of intoxicants emanating
from appellant. Upon additional questioning, appellant told him that she was on
prescription medications, including clonazepam, and had drunk a couple of Miller Lite beers
the night before. Deputy McCain then conducted field-sobriety tests; however, appellant
was unable to complete all of them due to previous knee surgeries. The State introduced
into evidence the officer’s dash-camera video. This video was played for the circuit court,
and the State contended that it was evidence of appellant’s intoxication. Deputy McCain
testified that it appeared to him that appellant could not coherently understand what was
3 going on at any point in time. Deputy McCain testified that he arrested appellant for DWI
based on her mannerisms, body language, the swaying, the slurred speech, the admittance
of alcohol consumption the night before, and the prescriptions. After appellant was arrested
and transported to the sheriff’s department, she agreed to a Breathalyzer test. The result of
that test was a 0.000, which meant that no alcohol registered on the test. Based on that
result, Deputy McCain requested that appellant submit to a urinalysis. Deputy McCain
testified that appellant refused and indicated that she was afraid that the test would show the
prescription medications in her system.
Lisa Hankins testified that she lived near the scene of the accident and that appellant
had walked up to her home after the accident. According to Ms. Hankins, appellant was
cold and wet and appeared very disheveled and scattered. Appellant was acquainted with
Ms. Hankins’s brother-in-law through her daughter. Appellant asked Ms. Hankins to call
her brother-in-law for help. Appellant specifically did not want Ms. Hankins to call anyone
else. Ms. Hankins called her brother-in-law, but he did not answer the phone. Appellant
left and returned to her vehicle, and Ms. Hankins subsequently called law enforcement.
Travis Beebe testified that he and his wife drove up on the scene of the accident and
stopped to provide assistance. Mr. Beebe stated that appellant was sitting in the passenger
seat and appeared to be going through the glove compartment. Mr. Beebe testified that
appellant was disheveled, incoherent, rambling, and muddy. However, he did not think
that she appeared to be off balance. Appellant asked Mr. Beebe if he could remove her car
from the trees. Mr. Beebe replied that he could not remove the car and asked appellant if
she wanted him to call 911. She refused his offer, but he ignored her and called 911.
4 The State rested its case, and appellant moved to dismiss her DWI charge. Appellant
argued that the State failed to prove that she had been intoxicated. She argued that her
Breathalyzer-test results showed that she did not have any alcohol in her system, and the
State failed to show that she was under the influence of any other intoxicant. No testimony
from a drug-recognition expert was introduced. The State responded that it was arguing
that she was under the influence of her prescription medications and that the evidence
showed she was under the influence of her medications to the point that she could not
operate her vehicle. Appellant thereafter additionally argued that if the allegation was that
she was under the influence of prescription medications, the State failed to introduce any
evidence of the requisite culpable mental state under Leeka v. State, 2015 Ark. 183, 461
S.W.3d 331. The State disagreed, arguing that because her medications affected her ability
to drive, she would have been acting recklessly. The circuit court denied the motion to
dismiss, and appellant called her witnesses.
Appellant’s daughter, Aleicha Rachelle Williams, testified that she saw her mother
shortly before the accident. At that time, she did not think anything was wrong with
appellant. Ms. Williams testified that she did not smell any alcohol on appellant during their
visit.
Pharmacist Carl Andrew Holder testified that he manages the pharmacy where
appellant fills her prescriptions. Pharmacist Holder explained that appellant had been a
patient of his for two and a half to three years. Pharmacist Holder testified that appellant
had been prescribed Suboxone and clonazepam, a long-acting benzodiazepine. He testified
that appellant was taking clonazepam nightly as a sleep aid. Pharmacist Holder further
5 testified that at the time of the accident, appellant was past the adjustment period for the
medications that she was prescribed. Under normal use, he expected that a person would
have stabilized and not suffer any adverse effects from the medications in the morning.
Appellant’s probation officer, Rodney Ford, testified that appellant visited him three
days after her arrest, and he conducted a drug test. All of appellant’s drug tests reflected
negative results. Officer Ford further explained that although some trace amounts of
amphetamine and alcohol were detected in her system, those amounts were below the
baseline thresholds. Thus, the results of those tests were negative. Officer Ford additionally
testified that appellant was not tested for benzodiazepines because she had a prescription for
that medication.
At the conclusion of all the evidence, appellant renewed her motion to dismiss. She
again argued that the State had failed to introduce any evidence that she was intoxicated or
had anything in her system other than her prescribed medications. Moreover, she explained
that Pharmacist Holder testified that she should not have had any intoxicating effects from
those prescriptions. Finally, she argued that there had been no proof that she was using any
intoxicant in a reckless manner. The State disagreed and argued that even though it was
not required to prove the culpable mental state of recklessness, it had done so. The State
argued that appellant had refused to submit to a urinalysis, which was evidence of
consciousness of guilt. The State argued that she refused the test because she knew she was
impaired and was afraid that the test would show multiple substances in her system.
The circuit court took a recess, and when it resumed, the circuit court announced
that the State did not need to prove a culpable mental state, as DWI is a strict-liability
6 offense. Defense counsel disagreed, but the circuit court again expressed that it was certain
that DWI is a strict-liability offense—regardless of whether the intoxicant was alcohol, a
controlled substance, or a combination of the two. Thus, the circuit court denied the
motion to dismiss, found appellant guilty, and stated the following:
Now I’m going to take into consideration everything. I’m going to take into consideration what I saw on the video. And she was swaying. I -- I was beginning to sway with her. Okay? She was swaying. And she did have -- was slurred. And I just -- I don’t think her motor skills and her judgment was up to par. I believe that those combinations of everything, if you take into combination everything -- her statement, her reactions, her rambling on, consistently rambling on, talking when other people were trying to tell her not to talk, her behavior indicated to me that she was intoxicated. So I’m finding her guilty.
In its November 13, 2019, amended sentencing order, the circuit court found appellant
guilty of DWI-I and sentenced her to serve twelve months in the county jail; guilty of
refusal to submit to a chemical test and sentenced her to three months in the county jail;
and found appellant guilty of careless and prohibited driving but did not impose any
additional incarceration. The circuit court ordered that all sentences be served concurrently
for an aggregate term of twelve months in the county jail.
B. CR-13-496
1. The Hearing for the Violation of Conditions of Probation
At the conclusion of the bench trial for CR18-305, the court took up the issue of
appellant’s alleged violations of probation. The probation records indicated that on April 7,
2014, appellant pleaded guilty in the Lonoke County Circuit Court in CR13-496 to
breaking or entering in violation of Arkansas Code Annotated section 5-39-202 (Repl.
2013), theft of property in violation of Arkansas Code Annotated section 5-36-103(b)(3)(A)
(Supp. 2019), third-degree escape in violation of Arkansas Code Annotated section 5-54- 7 112, and public intoxication in violation of Arkansas Code Annotated section 5-71-212.
Appellant was placed on probation for seventy-two months for the breaking-or-entering
and theft-of-property charges, twelve months for the third-degree-escape charge, and thirty
days for the public-intoxication charge.
On February 16, 2018 (two weeks after the single-vehicle accident discussed above),
the State filed a petition to revoke appellant’s probation, alleging that appellant violated her
terms and conditions of probation as follows:
1. Defendant failed to report on 5/17/17.
2. Defendant was arrested for Careless Driving, DWI 1st and Refusal to Submit to Chemical Test on 2/3/18.
3. Defendant tested positive for alcohol on 5/18/17.
4. Defendant was not truthful when she denied consuming alcohol on 5/18/17.
Officer Rodney Ford testified that he was appellant’s probation officer. Officer Ford
testified that on May 17, 2017, appellant failed to report as scheduled. Officer Ford called
appellant and she reported the following day. One of the conditions of probation was that
appellant was prohibited from drinking intoxicating or alcoholic beverages. Appellant told
Officer Ford that she had not been drinking alcohol. Officer Ford subsequently performed
a test, and she tested positive for alcohol. Moreover, appellant gave at least three different
stories as to why she had missed the previous day’s appointment. Officer Ford testified that
on a subsequent probation visit, appellant confessed to drinking alcohol. Finally, Officer
Ford testified that appellant reported her February 2, 2018, arrest to him for DWI, refusal
to submit to chemical test, and careless and prohibited driving on Monday, February 5,
2018. 8 At the conclusion of the evidence, the circuit court found appellant in violation of
the terms and conditions of her probation and stated the following:
Well, she tested positive for the alcohol and she denied it, then she I don’t know what happened but she did test positive, and she was arrested for the careless driving, the DWI, and the refusal, and she was found guilty of that in District Court, appealed it, and has been found guilty again and has a right to appeal that too. And she failed to report. Now I can see maybe the confusion on this failing to report, but I don't see any confusion on having alcohol in the middle of the day. I don’t see that. I believe that they’ve proved that on the petition to revoke that she violated the rules of probation.
(Emphasis added.)
In its November 13, 2019, amended sentencing order, the circuit court sentenced
appellant to serve eighteen months’ imprisonment followed by eighteen months’ SIS for the
charges of breaking or entering and theft of property. The sentencing order additionally
reflects that appellant was sentenced to serve twelve months’ imprisonment for third-degree
escape and one month’s imprisonment for public intoxication. Thus, because the sentences
were to be served concurrently, appellant was sentenced to serve an aggregate total of
eighteen months’ imprisonment followed by eighteen months’ SIS.
II. Appeal Pertaining to CR18-305 - DWI
Even though appellant was convicted of DWI, refusal to submit to a chemical test,
and careless and prohibited driving, appellant appeals only the conviction for DWI.
Appellant presents a twofold argument. First, she argues that her DWI conviction should
be reversed and dismissed because the evidence was insufficient to prove that she was even
intoxicated. This argument, however, lacks merit.
Second, appellant argues that her conviction should be reversed and dismissed
because the circuit court failed to apply the correct culpable mental state. The State argues
9 that no culpable mental state was required but alternatively argues that we should still affirm
on the basis that the circuit court reached the right result, albeit for the wrong reason. It
explains that even if a culpable mental state was required, the circuit court could have
concluded that the State presented sufficient evidence that appellant acted recklessly by
driving while she was intoxicated. We agree with appellant that the circuit court applied
the wrong culpable mental state, but we disagree with appellant that we must reverse and
dismiss. Instead, we reverse and remand for the circuit court to apply the correct culpable
mental state. See Leeka, supra; Gray v. State, 2019 Ark. App. 543, 590 S.W.3d 177; French
v. State, 2018 Ark. App. 502, 563 S.W.3d 582.
The circuit court was required to apply the following culpable mental state in
accordance with Arkansas Code Annotated section 5-2-203:
(b) Except as provided in §§ 5-2-204(b) and (c), if the statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.
Ark. Code Ann. § 5-2-203(b). In Leeka, our supreme court held that the DWI statute
requires a culpable mental state of purposely, knowingly, or recklessly. Leeka, supra. In
response to Leeka, the legislature added subsection (c) to Arkansas Code Annotated section
5-65-103, which makes an “alcohol-related offense” a “strict liability offense.” Tackett v.
State, 2017 Ark. App. 271, at 4, 523 S.W.3d 360, 362. However, despite the State’s
allegation to the contrary on appeal, alcohol consumption was not an issue in this case.
Appellant’s Breathalyzer test indicated that she had no alcohol in her system. Thus,
subsection (c) would not apply, and a culpable mental state of purposely, knowingly, or
recklessly is required in accordance with both section 5-2-203(b) and Leeka.
10 Recklessly is defined as follows:
(A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.
(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation[.]
Ark. Code Ann. § 5-2-202(3). This court has noted that a criminal defendant’s intent or
state of mind is seldom apparent. Rose v. State, 2018 Ark. App. 446, 558 S.W.3d 415. One’s
intent or purpose, being a state of mind, can seldom be positively known to others, so it
ordinarily cannot be shown by direct evidence but may be inferred from the facts and
circumstances. Id. Because intent cannot be proved by direct evidence, the fact-finder is
allowed to draw on common knowledge and experience to infer it from the circumstances.
Id. Because of the difficulty in ascertaining a defendant’s intent or state of mind, a
presumption exists that a person intends the natural and probable consequences of his or her
acts. Id.
Here, it is clear from our record that the circuit court incorrectly held during the
hearing on appellant’s motion to dismiss that the applicable culpable mental state for non-
alcohol-related offenses is strict liability, and it did not also make an alternative finding under
the correct standard as the circuit court did in Cordero v. State, 2019 Ark. App. 484, 588
S.W.3d 369. Therefore, we cannot conclude that the circuit court, as the fact-finder in this
case, would have concluded that appellant acted at least recklessly under the evidence of this
case. Thus, we reverse appellant’s DWI conviction and remand for the circuit court to
consider the evidence of this case under the correct standard.
11 III. Appeal Pertaining to CR13-496
A. Jurisdictional Issues
In CR13-496, we must first decide whether the circuit court had jurisdiction to
revoke appellant’s probation for the third-degree-escape and public-intoxication charges.
Whether a circuit court can revoke probation after the expiration of the probation period
is an issue of jurisdiction. Trif v. State, 2016 Ark. App. 452, 503 S.W.3d 802. Although
appellant did not raise a jurisdictional argument below or on appeal, whether a circuit court
has jurisdiction to revoke probation is an argument that we may address for the first time
on appeal. Id.
A court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation if before expiration of the period:
(1) The defendant is arrested for violation of suspension or probation;
(2) A warrant is issued for the defendant’s arrest for violation of suspension or probation;
(3) A petition to revoke the defendant’s suspension or probation has been filed if a warrant is issued for the defendant’s arrest within thirty (30) days of the date of filing the petition; or
(4) The defendant has been:
(A) Issued a citation in lieu of arrest under Rule 5 of the Arkansas Rules of Criminal Procedure for violation of suspension or probation; or
(B) Served a summons under Rule 6 of the Arkansas Rules of Criminal Procedure for violation of suspension or probation.
Ark. Code Ann. § 16-93-308(f) (Supp. 2019).
Here, on April 7, 2014, appellant was placed on probation for seventy-two months
for the breaking-or-entering and theft-of-property charges, twelve months for the third-
12 degree-escape charge, and thirty days for the public-intoxication charge. Thus, the circuit
court lost jurisdiction to revoke appellant’s probation for the third-degree-escape and
public-intoxication charges upon the expiration of the probationary period. Trif, supra. As
such, we must reverse and dismiss the circuit court’s judgment as it pertains to those two
charges.
B. Sufficiency of the Revocation for the Remaining Charges
A challenge to the sufficiency of the evidence may be raised for the first time in an
appeal of a revocation in the absence of a motion for a directed verdict or motion to dismiss.
See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). In a revocation proceeding, the
circuit court must find by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her suspension or probation, and on
appellate review, we do not reverse the circuit court’s decision unless it is clearly against the
preponderance of the evidence. Flemons v. State, 2014 Ark. App. 131; Ark. Code Ann. §
16-93-308(d) (Supp. 2019). Because the burdens are different, evidence that is insufficient
for a criminal conviction may be sufficient for a probation or suspended-sentence
revocation. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Since determination of
a preponderance of the evidence turns on questions of credibility and weight to be given
testimony, we defer to the circuit court’s superior position. Id. Furthermore, the State
need only prove that the appellant committed one violation of the conditions in order to
revoke appellant’s sentence. Peals v. State, 2015 Ark. App. 1, 453 S.W.3d 151.
We affirm the circuit court’s revocation based on the fact that appellant tested
positive for alcohol on May 18, 2017. Appellant’s probation officer testified that she denied
13 consuming any alcohol at her May 18, 2017, appointment; yet, she tested positive for
alcohol. The probation officer further testified that on a subsequent probation visit,
appellant confessed to consuming alcohol. Appellant’s conditions of probation specifically
stated that appellant “must not drink or possess intoxicating or alcoholic beverages . . . .”
Based on the probation officer’s testimony, the State proved by a preponderance of the
evidence that appellant had inexcusably failed to comply with a condition of her probation.
As such, we affirm the circuit court’s revocation of appellant’s probation for the charges of
breaking or entering and theft of property.
IV. Conclusion
In conclusion, we reverse appellant’s DWI conviction in CR18-305 and remand. In
CR13-496, we reverse and dismiss the circuit court’s revocation as it pertains to the third-
degree-escape and public-intoxication charges. Finally, regarding the charges of breaking
or entering and theft of property, we affirm the circuit court’s revocation.
Reversed and remanded in part; reversed and dismissed in part; affirmed in part.
WHITEAKER and MURPHY, JJ., agree.
Robert M. “Robby” Golden, for appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.