Carole Jean Arnold v State Of Oklahoma
F-2002-653
Filed: Jun. 2, 2003
Not for publication
Prevailing Party: State of Oklahoma
Summary
Carole Jean Arnold appealed her conviction for Driving While Under the Influence (DUI) and Driving While License is Suspended. Her conviction and sentence were modified to two years of imprisonment. Judge Lile dissented, stating that he would not change the sentence given by the jury, which was the maximum punishment available.
Decision
The Judgment of the trial court is AFFIRMED. The sentence imposed is hereby MODIFIED to two (2) years imprisonment.
Issues
- Was the evidence sufficient to support the verdict of driving while intoxicated?
- Did the trial court err by failing to correctly instruct the jury as to available punishment?
- Did the trial court err by allowing the results of the Horizontal Gaze Nystagmus test to be admitted into evidence at trial?
- Was the sentence excessive?
Findings
- the evidence was sufficient to support the verdict of driving while intoxicated
- the trial court erred by failing to correctly instruct the jury as to available punishment
- the trial court erred by allowing the results of the Horizontal Gaze Nystagmus test to be admitted into evidence at trial, but the error was harmless
- no relief is required on the claim that the sentence was excessive due to instructional error
F-2002-653
Jun. 2, 2003
Carole Jean Arnold
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
STRUBHAR, J.: Appellant, Carole Jean Arnold, was tried by jury in the District Court of Payne County, Case No. CF-2001-397, and convicted of Count I – Driving While Under the Influence and Count II – Driving While License is Suspended. The jury set punishment at five years imprisonment and a $500.00 fine on Count I and one year imprisonment and a $500.00 fine on Count II. District Judge Donald L. Worthington, who presided at trial, sentenced Appellant accordingly, but suspended the fines. From this judgment and sentence, she appeals. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the judgment and modify the sentence.
The following propositions of error were considered:
I. The evidence is insufficient to support the verdict of driving while intoxicated;
II. The trial court erred by failing to correctly instruct the jury as to available punishment;
III. The trial court erred by allowing the results of the Horizontal Gaze Nystagmus test to be admitted into evidence at trial; and
IV. The sentence was excessive.
As to Proposition I, we find the trial evidence was sufficient for a rational trier of fact to conclude Appellant was under the influence while driving her car. See Spuehler U. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).
As to Proposition II, we find the trial court erred in instructing the jury by only giving the punishment option of imprisonment and fine. 47 O.S.2001, § 11-902(C)(2). Although defense counsel did not object to the improper instruction, we have found incorrect instructions on the applicable range of punishment is fundamental error that cannot be waived. Taylor V. State, 45 P.3d 103, 105 n. 3; Scott v. State, 808 P.2d 73, 77 (Okl.Cr.1991); Turner V. State, 803 P.2d 1152, 1159 (Okl.Cr.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991). When the minimum punishment has been incorrect, this Court has in the past modified the sentence. See Taylor, 45 P.3d at 105 n. 3; Turner, 803 P.2d at 1159. Accordingly, we modify Appellant’s sentence to two years imprisonment.
As to Proposition III, we find the trial court erred in admitting Folden’s testimony regarding the results of Appellant’s HGN test without requiring the state to satisfy the criteria for the admission of scientific evidence as set forth in Daubert U. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Yell v. State, 856 P.2d 996, 997 (Okl.Cr.1993). However, we find that the admission of Folden’s testimony regarding the HGN testing and its results did not affect the outcome of Appellant’s trial. The jury heard other evidence from which it reasonably could have found that Appellant was under the influence while operating her vehicle. The officers involved testified Appellant’s breath smelled of alcohol, her speech was slightly slurred, her eyes were bloodshot and she was unsteady on her feet. Appellant admitted she had consumed two mixed drinks and two beers. In addition to the Horizontal Gaze Nystagmus test, Appellant also failed the walk and turn test and the one leg stand test. The field sobriety test administrator concluded that Appellant’s demeanor and failure of the sobriety tests indicated that she was under the influence while operating her vehicle. Based on this evidence, we find that, absent the HGN testimony, the result of Appellant’s trial would not have been different and therefore, the court’s improper admission of the HGN testimony was harmless.
In Proposition IV, Appellant claims her sentence is excessive. As we have found modification is warranted due to instructional error, we find no relief is required on this claim.
DECISION
The Judgment of the trial court is AFFIRMED. The sentence imposed is hereby MODIFIED to two (2) years imprisonment.
APPEARANCES AT TRIAL
ROYCE HOBBS
ATTORNEY AT LAW
P.O. BOX 1455
STILLWATER, OK 74076
ATTORNEY FOR APPELLANT
KATHY THOMAS
ASSISTANT DISTRICT ATTORNEY
PAYNE COUNTY COURTHOUSE
STILLWATER, OK 74074
ATTORNEY FOR THE STATE
APPEARANCES ON APPEAL
LISBETH L. McCARTY
OKLAHOMA INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OK 73070
ATTORNEY FOR APPELLANT
W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KELLYE BATES
ASSISTANT ATTORNEY GENERAL
2300 N.LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE
OPINION BY: STRUBHAR, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR IN PART/DISSENT IN PART
LUMPKIN, J.: CONCUR IN RESULTS
CHAPEL, J.: CONCUR
RA LILE, VICE PRESIDING JUDGE: CONCURS IN PART/DISSENTS IN PART
I would not modify the sentence. Here the jury gave the maximum sentence available, and it is clear that Appellant was not harmed by failure to instruct the jury that they could have ordered treatment instead. Further, this Court has previously authorized limited testimony concerning the horizontal gaze nystagmus test in Yell U. State, 1993 OK CR 34, 856 P.2d 996. Such evidence is neither novel nor scientific and Daubert does not apply.
Footnotes:
- Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).
- 47 O.S.2001, § 11-902(C)(2).
- Taylor v. State, 45 P.3d 103, 105 n. 3.
- Scott v. State, 808 P.2d 73, 77 (Okl.Cr.1991).
- Turner v. State, 803 P.2d 1152, 1159 (Okl.Cr.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991).
- Taylor, 45 P.3d at 105 n. 3.
- Turner, 803 P.2d at 1159.
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
- Yell v. State, 856 P.2d 996, 997 (Okl.Cr.1993).
- Yell v. State, 1993 OK CR 34, 856 P.2d 996.
Oklahoma Statutes citations:
- Okla. Stat. tit. 47 § 11-902(C)(2) - Driving Under Influence
- Okla. Stat. tit. 21 § 701.8 - Sentence Modification
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
- 509 U.S. § 579 - Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
Other citations:
No other rule citations found.
Case citations:
- Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985)
- Taylor v. State, 45 P.3d 103, 105 n. 3
- Scott v. State, 808 P.2d 73, 77 (Okl.Cr.1991)
- Turner v. State, 803 P.2d 1152, 1159 (Okl.Cr.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991)
- Yell v. State, 856 P.2d 996, 997 (Okl.Cr.1993)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)
- Yell v. State, 1993 OK CR 34, 856 P.2d 996