Edward Lockhart v. State of Arkansas

Cite as 2025 Ark. App. 216
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-24-323

Opinion Delivered April 9, 2025

EDWARD LOCKHART APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, FIRST
DIVISION
V. [NO. 60CR-22-3994]

HONORABLE KAREN D. WHATLEY,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Edward Lockhart was convicted in a jury trial of driving while intoxicated

(DWI), sixth offense, and he was sentenced to twenty years in prison. Lockhart’s sole

argument on appeal is that there was insufficient evidence to support his DWI conviction

because the State failed to prove he was intoxicated. We affirm.

Pursuant to Ark. Code Ann. § 5-65-103(a)(1) (Repl. 2024), it is unlawful for a person

who is intoxicated to operate or be in actual physical control of a motor vehicle.

“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) (Repl. 2024).

In reviewing a sufficiency challenge, we assess the evidence in the light most favorable

to the State and consider only the evidence that supports the verdict. Armstrong v. State, 2020

Ark. 309, 607 S.W.3d 491. We will affirm a judgment of conviction if substantial evidence

exists to support it. Id. Substantial evidence is evidence of sufficient force and character that

it will, with reasonable certainty, compel a conclusion one way or the other without resorting

to speculation or conjecture. Id. Circumstantial evidence may provide a basis to support a

conviction, but it must be consistent with the defendant’s guilt and inconsistent with any

other reasonable conclusion. Collins v. State, 2021 Ark. 35, 617 S.W.3d 701. Whether the

evidence excludes every other hypothesis is left to the jury to decide. Id. Further, the

credibility of witnesses is an issue for the jury, not the court; the trier of fact is free to believe

all or part of any witness’s testimony and may resolve questions of conflicting testimony and

inconsistent evidence. Armstrong, supra.

Bret Buris testified that he is an engineer with the Little Rock Fire Department. On

September 22, 2022, the fire department was called to a woods fire,1 and Buris drove the fire

truck to that location and parked on a narrow street. In the interest of safety, Buris parked

the fire truck to block the street in the event the fire hose needed to be deployed.

1
Buris later learned that the smoke was caused by someone burning leaves.

2
While the fire truck was parked blocking the street, Lockhart approached the fire

truck in his car. Lockhart got out of his car and asked for the fire truck to be moved so he

could pass. To accommodate Lockhart’s request, Buris moved the fire truck to the side of

the narrow street. Lockhart then attempted to pass. Buris testified that “as soon as he got

even with my front bumper, he accelerated to a pretty high rate of speed” and that as he was

trying to pass, Lockhart’s side mirror hit the roll-up door of the fire truck, leaving a twelve-

to-fourteen-inch black mark.

After Lockhart struck the fire truck, the fire captain yelled at him to stop, and

Lockhart complied. Lockhart stopped his car, approached the firefighters, and denied

causing any damage to the truck. After Buris showed Lockhart the marks on the fire truck,

Lockhart admitted that he hit the truck and offered to pay for the damage. By this time, the

fire captain had already called the police. According to Buris, during his interaction with

Lockhart, Lockhart was angry and was slurring his speech. He stated that Lockhart staggered

toward his vehicle several times and that he almost fell over and had to catch himself. Buris

also stated that Lockhart tried to take a picture of the damage using his phone but he

struggled with the phone and could not get it to work properly.

Officer Cameron Gitz of the Little Rock Police Department responded to the

accident. When Officer Gitz made contact with Lockhart, he observed that Lockhart smelled

of intoxicants, was stumbling, and had bloodshot eyes and slurred speech. Officer Gitz stated

that when he asked Lockhart for his information, Lockhart became uncooperative and

unruly. As a result, Officer Gitz handcuffed Lockhart and placed him in the back of his

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patrol car. Officer Gitz decided not to perform field sobriety tests on Lockhart, and he

explained:

[There are] two reasons for that. One, we were always trained that any individual that
has been involved in an accident, a lot of times those field sobriety tests aren’t going
to come out the right way because what you’re looking for can be affected by the
trauma of an accident, mixed with the fact that at that point in time, due to his
behavior and I was putting him in handcuffs, I’m not going to take him out of
handcuffs and ask him nicely to do some tests for me. . . . You are not going to take
an individual who’s now upset or potentially combative and take them back out of
handcuffs and ask them to perform sobriety tests [because] you have no idea what
they’re potentially going to do.

Officer Christian Heustis arrived at the scene shortly thereafter. Officer Heustis

stated that Lockhart was verbally aggressive and told the officers “he’s going to have our

jobs.” Officer Heustis removed Lockhart from the back of Officer Gitz’s patrol car and

placed him in the back of his patrol car. Officer Heustis said that Lockhart smelled of

intoxicants and that his speech was slurred. Officer Heustis testified:

We would ordinarily do a standard field sobriety test at this point. Because he was
being verbally aggressive, I wasn’t going to remove him from handcuffs and my
secured vehicle and administer these on the scene, just for officer’s safety, for the
public safety, and for his safety.

Officer Heustis transported Lockhart to the police station and attempted to administer a

breathalyzer test, which Lockhart refused.

Lockhart testified on his own behalf. Lockhart stated that he became agitated that

day because the fire truck was blocking the street, and smoke from the brush fire was coming

into his car. Lockhart stated that, after the firefighters signaled for him to pass, one of his

front tires went into the ditch, and when he accelerated and attempted to correct his

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direction, “the car jacked forward a little bit, and the mirror scraped the side of the truck.”

Lockhart stated that he initially told the firefighters he did not think he hit the truck but

that after they showed him red paint on his side mirror, he offered to pay for the damage.

When the police arrived and asked Lockhart about whether he had been drinking, Lockhart

became defensive and told them he had not been drinking. Lockhart stated that the police

wanted to search his car and that it turned into a big argument. Lockhart also stated that

because of the smoke, he was coughing and his eyes were red. He stated that he was angry

due to the smoke, him hitting the fire truck, and him arguing with the firefighters and

officers. Lockhart admitted that he refused the breathalyzer test. He testified that the officer

who had asked him to take the breathalyzer test was “messing with the machine and

unplugging it and so forth” and that “[he] didn’t feel right” about taking the test.

The jury convicted Lockhart of DWI, sixth offense,2 and sentenced him to twenty

years in prison. Lockhart appealed.

Lockhart’s sole argument for reversal is that there was insufficient evidence that he

committed DWI because the State failed to prove he was intoxicated on the day he was

arrested. In support of his sufficiency challenge, Lockhart relies on Roach v. State, 30 Ark.

App. 119, 783 S.W.2d 376 (1990), and Robinson v. State, 98 Ark. App. 237, 254 S.W.3d 750

(2007).

2
The State presented proof that Lockhart had been convicted of five prior DWI
offenses within the relevant time frame, which Lockhart does not challenge on appeal.

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In Roach, supra, the jury convicted Roach of DWI, and she challenged the sufficiency

of the evidence on appeal. In that case, the police heard tires squeal and then found Roach

sitting in her car on the shoulder of the road “with the motor revved.” The officers testified

that Roach was unsteady on her feet, her speech was slurred, and she was extremely

emotional. There was no odor of intoxicants, but Roach had two bottles of prescription pills

in her possession that appeared to have been filled the previous day, with one of the bottles

half full and the other bottle almost empty. No other evidence was introduced concerning

the contents of the bottles. No field sobriety tests were performed, and Roach was not asked

to provide a blood or urine sample.

In Roach, we stated that the jury could conclude without resort to speculation or

conjecture that Roach took some of the pills. However, we agreed with Roach that there

was insufficient evidence to support the DWI conviction. We stated, “The jury concluded

that the appellant was intoxicated by a controlled substance; however, because there was no

evidence whatsoever that the pills were a controlled substance, the jury was left to speculation

and conjecture.” Roach, 30 Ark. App. at 123, 783 S.W.2d at 378.

Lockhart asserts that our decision in Roach mandates reversal of his DWI conviction.

He notes that as in Roach, in the present case there was officer testimony about his

mannerisms and demeanor but that no field sobriety tests were given. However, we find

Roach distinguishable in three important ways. First, the reason no field-sobriety tests were

administered to Lockhart was due to his aggression toward the officers and his lack of

cooperation. Next, both police officers testified that Lockhart smelled of intoxicants, and

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no such testimony was present in Roach. Finally, Roach was not asked to take a chemical

test, but in this case, Lockhart was asked to take a breathalyzer but refused. Our supreme

court has held that the refusal to be tested may be considered as evidence of guilt. Medlock

v. State, 332 Ark. 106, 964 S.W.2d 196 (1998). Because of these distinguishing factors, we

do not agree that our decision in Roach directs reversal here.

Lockhart also relies on Robinson, supra, a case in which this court overturned a felony

negligent-homicide conviction because there was insufficient evidence of intoxication at the

time of the accident. In that case, Robinson was driving at a high rate of speed, crossed the

center line, and hit an oncoming vehicle, causing the driver’s death. The responding officers

testified that there were no signs that Robinson was intoxicated. Robinson was asked to give

a blood and urine test, and she complied. The blood-test report stated there was “insufficient

quantity for analysis.” The toxicologist who performed the urine test detected no evidence

of alcohol, but the test was positive for various illegal substances, including marijuana and

amphetamines. The toxicologist testified that the presence of marijuana indicated usage

within the last thirty-six hours and that the presence of methamphetamine indicated usage

within the last twelve to twenty-four hours before the sample was taken but that he could

not infer any type of intoxication from the urine drug test. On these facts, we held:

Because the toxicologist and the crime-laboratory toxicologist could not say
that the test results proved she was intoxicated, and the witnesses say she did not seem
intoxicated, evidence of the accident and urine screen alone are not sufficient to find
appellant guilty of felony-negligent homicide in this case.

Robinson, 98 Ark. App. at 243, 254 S.W.3d at 754.

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Lockhart contends that although he was involved in a motor-vehicle accident, he was

on a narrow street attempting to avoid a fire truck when he only minimally collided with the

truck and that the circumstances of the roadway explain the cause of the accident. Lockhart

states that, as in Robinson, there was a motor-vehicle accident, but there was insufficient

evidence that he was impaired or intoxicated while he was in control of the vehicle.

We, however, conclude that the facts in Robinson are easily distinguishable. In that

case, there was no testimony from the officers that Robinson appeared intoxicated, whereas

here, there was testimony that Lockhart smelled of alcohol, was staggering, and had

bloodshot eyes and slurred speech. Moreover, Robinson complied with the officer’s request

to submit to chemical tests, and the results of those tests were insufficient to prove

intoxication. Here, Lockhart refused the breathalyzer test, which, as stated, may be

considered as evidence of his guilt.

We think this case is more like Lockhart v. State, 2017 Ark. 13, 508 S.W.3d 869.3 In

that case, we affirmed a DWI and explained:

Viewing the evidence in the light most favorable to the State, we hold that the
evidence was sufficient to support the jury’s verdict. Lockhart here manifestly failed
to submit to testing twice. This reveals a consciousness of guilt on his part and is
independently relevant to prove he was intoxicated. In addition, Officer White
testified that after he pulled Lockhart over, Lockhart emitted a strong odor of alcohol
and had a stagger to his walk. Lockhart also appeared to be confused about his
location and where he actually lived. We therefore affirm Lockhart’s conviction for
driving while intoxicated because the officer’s observations, coupled with Lockhart’s
refusal to submit to testing and apparent confusion, amount to substantial evidence.

Lockhart, 2017 Ark. 13, at 4, 508 S.W.3d at 872.

3
Edward Lockhart, the appellant herein, was also the appellant in that case.

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The following principles apply to this case. The observations of police officers with

regard to the smell of alcohol and actions consistent with intoxication can constitute

competent evidence to support a DWI charge. Johnson v. State, 337 Ark. 196, 987 S.W.2d

694 (1999). Moreover, opinion testimony regarding intoxication is admissible. Id. The

refusal to submit to a breath test is also admissible evidence on the issue of intoxication and

may indicate the defendant’s fear of the results of the test and the consciousness of guilt. Id.

The evidence, viewed in the light most favorable to the State, showed that Lockhart

collided with a fire truck on a narrow street while attempting to pass the truck. After

Lockhart exited his car, he was agitated and uncooperative, and he initially denied striking

the truck before being shown physical evidence of the damage. The testimony showed that

Lockhart had bloodshot eyes and slurred speech, he staggered in the street and almost fell,

he smelled of intoxicants, and he was unable to operate his phone to take a picture of the

damage to the truck. The police officers testified that although field sobriety tests are

normally administered in this type of situation, none were given here because Lockhart had

become unruly and aggressive, which necessitated placing him in handcuffs. Finally,

Lockhart refused to take a breathalyzer test at the police station, which was admissible on

the issue of intoxication and his consciousness of guilt. We hold that this evidence

amounted to substantial evidence that Lockhart was intoxicated while in control of his

vehicle. Accordingly, Lockhart’s conviction for DWI, sixth offense, is affirmed.

Affirmed.

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GLADWIN and HARRISON, JJ., agree.

Dusti Standridge, for appellant.

Tim Griffin, Att’y Gen., by: James Hill, Ass’t Att’y Gen., for appellee.

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