Cite as 2024 Ark. App. 274 ARKANSAS COURT OF APPEALS DIVISION I No. CR-23-573
Opinion Delivered April 24, 2024 JOHN DAMRON APPELLANT APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT V. [NO. 03CR-22-135]
HONORABLE JOHN R. PUTMAN, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED
N. MARK KLAPPENBACH, Judge
John Damron appeals his conviction for boating while intoxicated (BWI). Damron
was initially tried in the Baxter County District Court for BWI and negligent operation of a
motorboat. He was found guilty of BWI and not guilty of the boating violation. Damron
appealed to the Baxter County Circuit Court, where he was again convicted of BWI in a
bench trial. He raises three points on appeal. We affirm.
The circuit court first addressed whether there was probable cause for the stop of
Damron’s boat. Corporal Lyndle Crownover, a wildlife officer for the Arkansas Game and
Fish Commission, testified that on July 3, 2021, he was on routine patrol in his patrol boat
on Norfork Lake. Crownover saw a jet ski and a boat driven by Damron going back and
forth such that they appeared to be racing or trying to cut each other off. Crownover said that the jet ski and boat were about twenty-five to thirty feet apart, that they were traveling
roughly thirty miles an hour, and that the jet ski was in danger of running into the bank.
Crownover believed that a crash was imminent and stopped Damron’s boat for that reason.
According to Crownover, Damron acknowledged that he was about twenty-five to thirty feet
from the jet ski and said that he understood why he was stopped since it could have been a
dangerous situation. Crownover testified that Damron violated the law that requires that a
boat travel at a safe distance and a safe speed where, here, the vessels were dangerously close;
he believed it to be reckless or negligent operation of the boat. The circuit court found
probable cause for the stop.
Crownover then testified that when speaking with Damron, he smelled an odor of
intoxicants on him and asked Damron how much he had had to drink. Damron told him
he had five beers that day. Crownover administered a portable breath test (PBT) at 6:41
p.m. and a second PBT approximately fifteen minutes later before determining that they
needed to move to solid ground for field-sobriety testing. Crownover testified that Damron
failed all three field-sobriety tests, demonstrating all six indicators of intoxication on the
horizontal-gaze-nystagmus test and two clues each on the walk-and-turn and one-leg-stand
tests. Crownover testified that he determined that Damron was intoxicated and needed to
have a blood or breath alcohol concentration (BAC) test. This test was given to him at 8:37
p.m. with a result of 0.09 alcohol concentration. Crownover wrote Damron a ticket for BWI
and improper distance.
2 On cross-examination, Crownover testified that he “probably” would have considered
Damron to have passed the walk-and-turn and one-leg-stand tests on their own, but his
conclusions were based on the horizontal-gaze-nystagmus test. Crownover agreed with
Damron’s attorney that it takes time for a person’s body to absorb alcohol and that if
Damron “had just consumed alcohol that his body would have been absorbing it and it
would have been causing his BAC to rise.”
The State rested following Crownover’s testimony, and Damron moved to dismiss,
arguing that the State had failed to prove intoxication. Damron argued that his BAC rose
during the two hours between the stop and the BAC test, and if the test had been given
sooner, he would have been under the legal limit. The circuit court denied the motion.
Damron testified that he probably had five or six beers that day as well as sandwiches
and snacks. He said that he had a couple of beers in the hour preceding the stop and
probably finished his last beer ten or fifteen minutes before the stop. Damron agreed that
the BAC test was given approximately two hours and twenty-two minutes after he had
stopped drinking, and he said that he did not have an explanation as to why his BAC would
register 0.09 at that time. The circuit court denied Damron’s renewed motion to dismiss
and found him guilty of BWI. The court acquitted him of the boating violation.
I. Sufficiency of the Evidence
Damron first challenges the sufficiency of the evidence. In reviewing a challenge to
the sufficiency of the evidence, we determine whether the verdict is supported by substantial
evidence, direct or circumstantial. Lockhart v. State, 2017 Ark. 13, 508 S.W.3d 869.
3 Substantial evidence is evidence forceful enough to compel a conclusion one way or the
other beyond suspicion or conjecture. Id. This court views the evidence in the light most
favorable to the verdict, and only evidence supporting the verdict will be considered. Id. It
is well settled that it is the province of the fact-finder to determine the weight of evidence
and the credibility of witnesses. Id.
Under Arkansas Code Annotated section 5-65-103 (Repl. 2016), it is unlawful for a
person to operate or be in actual physical control of a motorboat on the waters of this state
if the person is either (1) intoxicated or (2) at that time the alcohol concentration in the
person’s breath or blood was eight hundredths (0.08) or more. For purposes of the offense,
intoxicated means influenced or affected by the ingestion of alcohol, a controlled substance,
any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant, to
such a degree that the driver’s reactions, motor skills, and judgment are substantially altered
and the driver, therefore, constitutes a clear and substantial danger of physical injury or
death to himself or herself or another person. Ark. Code Ann. § 5-65-102(4) (Supp. 2023).
Damron argues that considering Crownover’s testimony regarding rising BAC and
the fact that the 0.09 BAC result was not obtained until more than two hours after the stop,
there was insufficient evidence to prove that his BAC was over the legal limit at the time he
was operating the boat when the State failed to present evidence “as to the possible calculable
effect of time” on his BAC. We disagree.
The State is not required to present expert testimony explaining the meaning of
blood-alcohol content. Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988). In Hayden
4 v. State, 103 Ark. App. 32, 286 S.W.3d 177 (2008), the appellant similarly claimed that the
State had failed to prove that his BAC was 0.08 or more at the time he was driving because
test results of 0.099 and 0.096 were obtained more than an hour after the stop. The
argument in Hayden that the appellant’s alcohol level would have been rising at the time of
the offense and peaking at the time of the test was, like here, unsupported by evidence about
the changes in alcohol levels that occur after alcohol is consumed. Although Crownover
agreed that if Damron “had just” consumed alcohol, his BAC would rise, he did not give
any opinion regarding the effect Damron’s drinking would have on his BAC more than two
hours after the stop. The BAC result of 0.09 is sufficient to establish Damron’s alcohol
concentration at the time of the offense.
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Cite as 2024 Ark. App. 274 ARKANSAS COURT OF APPEALS DIVISION I No. CR-23-573
Opinion Delivered April 24, 2024 JOHN DAMRON APPELLANT APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT V. [NO. 03CR-22-135]
HONORABLE JOHN R. PUTMAN, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED
N. MARK KLAPPENBACH, Judge
John Damron appeals his conviction for boating while intoxicated (BWI). Damron
was initially tried in the Baxter County District Court for BWI and negligent operation of a
motorboat. He was found guilty of BWI and not guilty of the boating violation. Damron
appealed to the Baxter County Circuit Court, where he was again convicted of BWI in a
bench trial. He raises three points on appeal. We affirm.
The circuit court first addressed whether there was probable cause for the stop of
Damron’s boat. Corporal Lyndle Crownover, a wildlife officer for the Arkansas Game and
Fish Commission, testified that on July 3, 2021, he was on routine patrol in his patrol boat
on Norfork Lake. Crownover saw a jet ski and a boat driven by Damron going back and
forth such that they appeared to be racing or trying to cut each other off. Crownover said that the jet ski and boat were about twenty-five to thirty feet apart, that they were traveling
roughly thirty miles an hour, and that the jet ski was in danger of running into the bank.
Crownover believed that a crash was imminent and stopped Damron’s boat for that reason.
According to Crownover, Damron acknowledged that he was about twenty-five to thirty feet
from the jet ski and said that he understood why he was stopped since it could have been a
dangerous situation. Crownover testified that Damron violated the law that requires that a
boat travel at a safe distance and a safe speed where, here, the vessels were dangerously close;
he believed it to be reckless or negligent operation of the boat. The circuit court found
probable cause for the stop.
Crownover then testified that when speaking with Damron, he smelled an odor of
intoxicants on him and asked Damron how much he had had to drink. Damron told him
he had five beers that day. Crownover administered a portable breath test (PBT) at 6:41
p.m. and a second PBT approximately fifteen minutes later before determining that they
needed to move to solid ground for field-sobriety testing. Crownover testified that Damron
failed all three field-sobriety tests, demonstrating all six indicators of intoxication on the
horizontal-gaze-nystagmus test and two clues each on the walk-and-turn and one-leg-stand
tests. Crownover testified that he determined that Damron was intoxicated and needed to
have a blood or breath alcohol concentration (BAC) test. This test was given to him at 8:37
p.m. with a result of 0.09 alcohol concentration. Crownover wrote Damron a ticket for BWI
and improper distance.
2 On cross-examination, Crownover testified that he “probably” would have considered
Damron to have passed the walk-and-turn and one-leg-stand tests on their own, but his
conclusions were based on the horizontal-gaze-nystagmus test. Crownover agreed with
Damron’s attorney that it takes time for a person’s body to absorb alcohol and that if
Damron “had just consumed alcohol that his body would have been absorbing it and it
would have been causing his BAC to rise.”
The State rested following Crownover’s testimony, and Damron moved to dismiss,
arguing that the State had failed to prove intoxication. Damron argued that his BAC rose
during the two hours between the stop and the BAC test, and if the test had been given
sooner, he would have been under the legal limit. The circuit court denied the motion.
Damron testified that he probably had five or six beers that day as well as sandwiches
and snacks. He said that he had a couple of beers in the hour preceding the stop and
probably finished his last beer ten or fifteen minutes before the stop. Damron agreed that
the BAC test was given approximately two hours and twenty-two minutes after he had
stopped drinking, and he said that he did not have an explanation as to why his BAC would
register 0.09 at that time. The circuit court denied Damron’s renewed motion to dismiss
and found him guilty of BWI. The court acquitted him of the boating violation.
I. Sufficiency of the Evidence
Damron first challenges the sufficiency of the evidence. In reviewing a challenge to
the sufficiency of the evidence, we determine whether the verdict is supported by substantial
evidence, direct or circumstantial. Lockhart v. State, 2017 Ark. 13, 508 S.W.3d 869.
3 Substantial evidence is evidence forceful enough to compel a conclusion one way or the
other beyond suspicion or conjecture. Id. This court views the evidence in the light most
favorable to the verdict, and only evidence supporting the verdict will be considered. Id. It
is well settled that it is the province of the fact-finder to determine the weight of evidence
and the credibility of witnesses. Id.
Under Arkansas Code Annotated section 5-65-103 (Repl. 2016), it is unlawful for a
person to operate or be in actual physical control of a motorboat on the waters of this state
if the person is either (1) intoxicated or (2) at that time the alcohol concentration in the
person’s breath or blood was eight hundredths (0.08) or more. For purposes of the offense,
intoxicated means influenced or affected by the ingestion of alcohol, a controlled substance,
any intoxicant, or any combination of alcohol, a controlled substance, or an intoxicant, to
such a degree that the driver’s reactions, motor skills, and judgment are substantially altered
and the driver, therefore, constitutes a clear and substantial danger of physical injury or
death to himself or herself or another person. Ark. Code Ann. § 5-65-102(4) (Supp. 2023).
Damron argues that considering Crownover’s testimony regarding rising BAC and
the fact that the 0.09 BAC result was not obtained until more than two hours after the stop,
there was insufficient evidence to prove that his BAC was over the legal limit at the time he
was operating the boat when the State failed to present evidence “as to the possible calculable
effect of time” on his BAC. We disagree.
The State is not required to present expert testimony explaining the meaning of
blood-alcohol content. Sparks v. State, 25 Ark. App. 190, 756 S.W.2d 911 (1988). In Hayden
4 v. State, 103 Ark. App. 32, 286 S.W.3d 177 (2008), the appellant similarly claimed that the
State had failed to prove that his BAC was 0.08 or more at the time he was driving because
test results of 0.099 and 0.096 were obtained more than an hour after the stop. The
argument in Hayden that the appellant’s alcohol level would have been rising at the time of
the offense and peaking at the time of the test was, like here, unsupported by evidence about
the changes in alcohol levels that occur after alcohol is consumed. Although Crownover
agreed that if Damron “had just” consumed alcohol, his BAC would rise, he did not give
any opinion regarding the effect Damron’s drinking would have on his BAC more than two
hours after the stop. The BAC result of 0.09 is sufficient to establish Damron’s alcohol
concentration at the time of the offense.
Moreover, the circuit court was also presented with evidence of intoxication to
establish the other definition of BWI. Damron argues that the non-BAC evidence was
insufficient because he passed two of three field-sobriety tests and there was no other
evidence of impairment. However, the State presented evidence that Damron failed his field-
sobriety testing, admitted drinking alcohol, smelled of alcohol, and drove the boat
dangerously close to a jet ski. Crownover opined that Damron was intoxicated. Opinion
testimony regarding intoxication is admissible, and it is the fact-finder’s province to
determine its weight and credibility. Henry v. State, 2011 Ark. App. 169, 378 S.W.3d 832.
We hold that this evidence is sufficient to support the conviction for BWI.
II. Consideration of Facts Not in Evidence
5 Damron next argues that the circuit court considered facts not in evidence in finding
him guilty. This allegation is based on the court’s statement that
for the reasons I stated previously, I’m going to deny the motion. From what I understand about alcohol absorption, if he drank the beers, as he said, one early and began drinking at 2:00 to 2:30, and his last beer was consumed a little before 6:30, and then when the test was given, there’s no way he would have been at .09. Some - - but that’s what he registered, so I’m going to find him guilty of DWI.
Damron contends that the court discredited his testimony on the basis of alcohol-absorption
rates for which there was no evidence. We agree with the State, however, that Damron failed
to preserve this argument for appeal.
To preserve an argument for appeal, there must be an objection in the circuit court
that is sufficient to apprise the court of the particular error alleged, and the appellate court
will not address arguments raised for the first time on appeal. Vanesch v. State, 343 Ark. 381,
37 S.W.3d 196 (2001). The law is well settled that to preserve an issue for appeal, a
defendant must object at the first opportunity. Mezquita v. State, 354 Ark. 433, 125 S.W.3d
161 (2003). Damron contends that his argument for dismissal regarding rising BAC levels
preserved this argument. While his sufficiency argument was preserved, we do not agree that
his motion to dismiss preserved the separate argument he now raises that inadmissible
evidence was considered. The purported consideration of inadmissible evidence did not
arise until after Damron completed his argument for dismissal, and he made no objection
thereafter. See Rasmusen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982) (holding that
defense’s objection to question posed by State did not preserve argument on appeal that the
trial court made misleading comments in the discussion following the objection).
6 Damron alternatively contends that his argument should be considered under the
third or fourth Wicks exceptions to the contemporaneous-objection rule. See Wicks v. State,
270 Ark. 781, 606 S.W.2d 366 (1980). The third Wicks exception applies when the circuit
court should intervene on its own motion to correct a serious error. White v. State, 2012
Ark. 221, 408 S.W.3d 720. This exception is limited to only those errors affecting the very
structure of the criminal trial, such as the fundamental right to a trial by jury, the
presumption of innocence, and the State’s burden of proof. Id. The fourth Wicks exception
is implicated when the admission or exclusion of evidence affects a defendant’s substantial
rights. Id. Damron argues that evidence that was not presented was “admitted,” which
violated the confrontation clause and affected his substantial rights. Our case law is clear
that Wicks presents only narrow exceptions that are to be rarely applied. Id. In Witherspoon
v. State, 2020 Ark. App. 468, we noted that these exceptions are not intended to apply when
a party simply fails to make a contemporaneous objection to an alleged confrontation-clause
error. We decline to apply any of the Wicks exceptions here.
III. Probable Cause for the Stop
Damron also argues that the circuit court erred in finding that there was probable
cause to stop his boat. In reviewing the denial of a motion to suppress, we conduct a de
novo review based on the totality of the circumstances, reviewing findings of historical fact
for clear error and determining whether those facts give rise to reasonable suspicion or
probable cause, giving due weight to the inferences drawn by the circuit court. Brewer v.
7 State, 2010 Ark. App. 275. We reverse only if the ruling is clearly against the preponderance
of the evidence. Id.
The law regarding probable cause for traffic stops applies to cases involving boats. Id.
In order to be valid, a traffic stop requires that the officer have probable cause to believe that
a traffic violation has occurred. Id. Probable cause is defined as facts or circumstances within
a police officer’s knowledge that are sufficient to permit a person of reasonable caution to
believe that an offense has been committed by the person suspected. Lockhart v. State, 2017
Ark. 13, 508 S.W.3d 869. In assessing the existence of probable cause, our review is liberal
rather than strict. Id. Whether a police officer has probable cause to make a traffic stop does
not depend on whether the driver was actually guilty of the violation that the officer believed
to have occurred. Id.
Damron argues that there was no evidence to support a finding that a reasonable
officer would conclude that he violated the law. We disagree. Crownover testified that he
believed Damron was in violation of the law requiring him to keep a safe speed and distance
and that he operated the boat negligently or recklessly. Pursuant to Arkansas Code
Annotated section 27-101-202(1) (Repl. 2022), no person shall operate any motorboat in a
reckless or negligent manner that endangers the life, limb, or property of any person.
Crownover testified that Damron’s boat was getting in the jet ski’s space, that they were
dangerously close to each other, that they appeared to be racing, and that a crash appeared
imminent. These facts support a finding that Crownover had probable cause to believe that
8 a violation of section 27-101-202(1) had occurred. Accordingly, the circuit court’s ruling was
not clearly against the preponderance of the evidence.
Affirmed.
GLADWIN and GRUBER, JJ., agree.
Jeremy B. Lowrey; and Cooper & Bayless, by: Paul Bayless, for appellant.
Tim Griffin, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.