Sizemore v. State

2015 Ark. App. 728, 478 S.W.3d 281, 2015 Ark. App. LEXIS 811
Court of Appeals of Arkansas·Decided December 16, 2015·No. CR-15-441·Published·Cited by 4 cases

Opinion

CLIFF HOOFMAN, Judge

11 Appellant Kenneth Cole Sizemore appeals after he was convicted by a Washington County jury of misdemeanor negligent homicide and was sentenced to twelve months’ imprisonment in the county jail and fined $2,500.. On appeal, appellant’s sole contention is that the trial court erred in denying appellant’s motion for a directed verdict. We affirm appellant’s conviction, but we remand in part for the circuit court to correct the sentencing order to reflect that appellant was convicted of misdemeanor negligent homicide pursuant to Arkansas Code Annotated section 5-10-105(b).

Appellant was charged with one count of manslaughter, a Class C felony, for recklessly causing the death of Zachary Tyler Hagan. A jury trial was held on February 17-18, 2015. On January 12, 2013, while driving a 2008 Chevrolet Tahoe, appellant’s vehicle rolled over, killing one of the two passengers, Hagan, who was ejected from the front passenger seat. The [ 2other passenger, Griffin Smith, testified at trial that he was friends with both Ha-gan and appellant; that he did not remember any of the events leading up to the accident; that he had a history of ingesting drugs with appellant and Hagan; that he thought he remembered an officer speaking to him after the accident but did not remember the questions' or answers; that he did not remember telling an officer that he had bought an air-duster canister that night; and that he did not remember telling an officer that all three of them had been.“hitting the air duster.”

Kelly Hon testified that she had been driving on the road the night of the accident. She testified that while driving she heard squealing tires and observed appellant’s vehicle weaving into the turn lane and then traveling toward her in her lane. She witnessed the vehicle cross lanes, ov-ercorrect, hit an embankment, and flip. She had observed that, although it was a cold night, there was no ice or any other precipitation present on the road that night and that the road seemed fine. Another eyewitness, Christopher Comer, testified that he also had noticed headlights wiggling and coming toward him at approximately 11:30 or 11:45 in the evening. He further explained that he witnessed the vehicle come across all five lanes, hit a curb, and flip over. When Comer assisted appellant out of the vehicle, appellant initially told him that he was not driving but later stated that he was.

Officer Marcus Peace, employed by the Fayetteville Police Department, testified that he responded within minutes of the accident. While on the scene, appellant told Officer Peace that he had hit a patch of ice on the road, causing him to lose control of the vehicle. Officer Jason Christopher Adverado, an accident recon-structionist with the Fayetteville Police | ¡¡Department, testified that he also was called out to the scene. He introduced several pictures of the accident and of the canisters of air duster that were found during the investigation. He further indicated that an air duster can be used as an intoxicant. He noted that the weather conditions were dry at the time of the accident and that he did not observe any ice on the road.

Officer Kurtis Sutley, a drug-recognition-expert instructor with the Fayetteville Police Department, testified that appellant’s blood was drawn at the hospital after the accident. He also found a Wal-Mart receipt in Hagan’s right front pants pocket that indicated that three canisters of air duster had been purchased just prior to the accident. Officer Sutley explained that canned air is classified as an inhalant and that it is a very fast-acting drug but dissipates very quickly. The drug in canned air, difluoroethane, causes oxygen deprivation to the brain and can cause one to pass out. Officer Sutley also testified that he had questioned appellant after the accident at the hospital. He testified that appellant’s story was inconsistent. Initially, appellant alleged that he had not taken any drugs in several days and that he had not stopped at Wal-Mart on the night of the accident. However, after Officer Sutley pointed out the inconsistencies in appellant’s story, appellant told him that he had stopped at Wal-Mart but denied using any drugs. Officer Sutley testified that appellant had alleged that he lost control when he had hit a patch of ice on the road.

Trooper Bobby Clemence for the Arkansas State Police testified at trial that he had been assigned to the state-wide crash-reconstruction team. He had analyzed the “black box” of the vehicle after the accident. He explained that the information revealed that the vehicle 14was traveling at sixty-six miles an hour at two and a half seconds before the accident. The vehicle continued to increase its speed to seventy miles per hour with ninety-five percent throttle at one and a half seconds, seventy-one miles per hour with one hundred percent throttle at one second, and seventy-three miles per hour with one hundred percent throttle at a half second. The rollover sensor recorded that the vehicle was traveling at seventy-five miles per hour when the vehicle started to roll. The instrumentation further indicated that the brakes were never engaged and that the accelerator was steadily pushed down to full throttle during the accident.

Danny Sanders testified that he was a forensic toxicologist with the Arkansas State Crime Lab. He explained that appellant’s blood sample detected a presence of difluoroethane and tested positive for ben-zodiazepines, cannaboids, and oxycodone. He. could not, however, specifically opine how long the drugs had been in appellant’s system. He indicated that difluoroethane was a gas found in air-duster canisters and was a short-lasting drug that he would have expected to be out of a user’s system within twenty to thirty minutes if it was ingested through the mouth. Second-hand exposure would dissipate even sooner. He further opined that a person would be affected by difluoroethane if it was found present in a person’s blood. Although there would be a definite effect on a person, Sanders stated that the specific effects could vary on each person. Furthermore, Sanders opined that a large amount of the gas had to be ingested for the gas to remain in appellant’s system.

Detective Brian Lindabury with the Fayetteville Police Department testified that he also had interviewed appellant early in the morning on January 13, 2013. Appellant told him |sthat he was driving that night because Smith and Hagan had taken pills and needed a designated driver. Appellant indicated to him that he lost control after hitting a patch of ice on the road. A Wal-Mart surveillance video showed Smith and Hagan purchasing three cans of canned air from the store minutes before the accident; however, appellant had indicated at. that interview that only two canisters of air were purchased. Appellant denied using any drugs the night of the accident. Another video played for the jury showed that, appellant’s vehicle was traveling at a higher rate of speed at the time of the accident than the other traffic. Although Detective Lindabury testified that he had not submitted the air-duster cans for a fingerprint analysis, he testified that three cans of canned air were recovered during the. investigation of the accident. He specifically testified that the Wal-Mart receipt indicated that the cans were purchased at 11:33 p.m., the first call reporting the accident was received at 11:46 p.m., and appellant’s blood was drawn at the hospital at 3:18 a.m.

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Sizemore v. State, 2015 Ark. App. 728, 478 S.W.3d 281, 2015 Ark. App. LEXIS 811 (Ark. Ct. App. 2015).

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