Hernandez-Diaz v. State

2019 Ark. App. 301, 577 S.W.3d 757
CourtCourt of Appeals of Arkansas
DecidedMay 29, 2019
DocketNo. CR-18-894
StatusPublished
Cited by1 cases

This text of 2019 Ark. App. 301 (Hernandez-Diaz v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hernandez-Diaz v. State, 2019 Ark. App. 301, 577 S.W.3d 757 (Ark. Ct. App. 2019).

Opinion

ROBERT J. GLADWIN, Judge

Yuniesky Hernandez-Diaz was convicted on July 2, 2018, in the Prairie County Circuit Court of fleeing and possessing a controlled substance with the purpose to deliver. He argues that there was insufficient evidence to support the fleeing conviction and that his case must be remanded for correction of clerical errors in the sentencing order. The State opposes his sufficiency argument but concedes that the errors in the sentencing order should be corrected. We affirm and remand to correct clerical errors in the sentencing order.

*759I. Facts

Hernandez-Diaz was charged by criminal information with possessing more than twenty-five pounds of marijuana and felony fleeing. At his trial, William Basore, a K9 police officer with the Hazen Police Department, testified that he had been patrolling the interstate on December 21, 2016, when he observed Hernandez-Diaz's vehicle cross the fog line. Basore activated his lights and siren, but Hernandez-Diaz increased his speed to 115 miles an hour and did not stop. Basore called for backup, and he testified that Hernandez-Diaz continued "on the south side or the shoulder of the interstate to pass cars going that way. When he couldn't get over to the south side, he would continuously pass cars using both shoulders." The chase continued for about twenty-two miles. The Arkansas State Police were contacted, and officers deployed spike strips as Hernandez-Diaz approached, and he hit the strips, deflating his front tires. Hernandez-Diaz continued for another two miles before veering off the roadway and crashing in the woods. He jumped out of his vehicle on the passenger side and ran into the woods, leaving behind a black bag filled with what later was discovered to be baggies of marijuana. After Basore's police dog helped to follow and apprehend him, Hernandez-Diaz complied with the officers, and he was taken to jail. Officers then searched his vehicle, finding several large bags of marijuana in the backseat.

Conley Busselle, an investigator for the Central Arkansas Drug Task Force, testified that he assisted the Hazen police and retrieved the marijuana for processing. He photographed it, weighed it, placed it in boxes, and took it to the Arkansas State Crime Lab for analysis. He said that the marijuana in its packaging weighed 27.4 pounds and that he had weighed each bag separately. The packaging was vacuum-sealed freezer bags. Dan Hedges, a forensic scientist for the Arkansas State Crime Lab, testified that the evidence tested positive for marijuana. He said that he had weighed the bags labeled 1 through 14 of the twenty-six bags of evidence and that an approximate weight for the entirety of the marijuana was 23.97 pounds.

Hernandez-Diaz moved for a directed verdict at the close of the State's evidence, arguing that insufficient evidence was presented by the State to prove possession of a controlled substance in excess of twenty-five pounds and that all the elements of fleeing had not been met because the officers' testimony did not establish that anyone was put at risk. The trial court denied the motion.

II. Sentencing Order

The jury found Hernandez-Diaz guilty of fleeing by means of a vehicle under certain circumstances manifesting extreme indifference to the value of human life, purposely operating the vehicle in a manner that created a substantial danger of death or serious physical injury. Further, the jury found him guilty of possessing less than twenty-five pounds of marijuana with the intent to deliver. However, the sentencing order reflects that he was convicted of possessing more than twenty-five pounds of marijuana and fleeing on foot rather than by vehicle. This appeal timely followed.

III. Standard of Review

Arkansas law treats motions for directed verdict as challenges to the sufficiency of the evidence. Holloway v. State , 2011 Ark. App. 52. When the sufficiency of the evidence is challenged in a criminal conviction, our court views the evidence in the light most favorable to the verdict and considers only the evidence supporting it.

*760Adkins v. State , 371 Ark. 159, 264 S.W.3d 523 (2007). We will affirm if the finding of guilt is supported by substantial evidence. Id. Substantial evidence is evidence of such sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Fernandez v. State , 2010 Ark. 148, 362 S.W.3d 905.

IV. Fleeing Conviction

Hernandez-Diaz argues that there was insufficient evidence to support his fleeing conviction. Arkansas Code Annotated section 5-54-125(d)(2) (Supp. 2017) provides:

Fleeing by means of any vehicle or conveyance is considered a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person.

Hernandez-Diaz contends that there was insufficient proof that he had purposely operated his vehicle in a manner that created a substantial danger of death or serious physical injury to another person. He also claims that there was insufficient evidence of circumstances manifesting his extreme indifference to the value of human life.

He claims that Officer Basore did not call off the pursuit because Basore did not believe the situation merited such. See Donaldson v. State , 2016 Ark. App. 391, 500 S.W.3d 768. He also points to the testimony that the weather was clear and the road was not wet. He argues that there was no evidence that his manner of driving caused any serious physical injury or that he was involved in a crash with another vehicle. He claims that no one was forced off the road and that there was no evidence of a narrowly escaped collision. See Pierce v. State , 79 Ark. App. 263, 86 S.W.3d 1 (2002) ; Weeks v. State , 64 Ark. App. 1

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Bluebook (online)
2019 Ark. App. 301, 577 S.W.3d 757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-diaz-v-state-arkctapp-2019.