ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION SAM BIRD, JUDGE

DIVISION I

BROOKIE S. BURROW,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR99-1195

MAY 16, 2001

APPEAL FROM THE MONTGOMERY COUNTY CIRCUIT COURT,

NO. CR98-47,

HON. GAYLE K. FORD, JUDGE

AFFIRMED

Appellant Brookie S. Burrow was charged with manslaughter and driving while intoxicated stemming from a car accident on July 21, 1998. Burrow was the driver of a car that swerved off the road and into Lake Ouachita. Christopher Pearson, a fourteen-year- old passenger in Burrow's car, died as a result of the car accident.

After a trial, Burrow was found guilty of negligent homicide and driving while intoxicated. She was sentenced to six years in the Arkansas Department of Correction on the charge of negligent homicide and a term of one year in the Montgomery County jail on the charge of driving while intoxicated.

This case was submitted to us in 2000, pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j). We held that the appellant's attorney had failed to comply with the requirements of Anders and Ark. Sup. Ct. R. 4-3(j), and we ordered rebriefing. We found that the argument section contained references to only one ruling

adverse to Burrow, that being the court's denial of her motions for directed verdict. Our examination of the record revealed that there were additional adverse rulings, all made in response to objections made during trial testimony.

Appellant's attorney has rebriefed the issues pursuant to Anders v. California, supra, and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and has filed a motion to withdraw on the grounds that this appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of objections made by the appellant and ruled on by the court, a record of all motions and requests made by the appellant and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record that will support the appeal. The State concurs that the appellant's counsel has complied with Rule 4-3(j) and that the appeal has no merit.

The clerk of this court furnished Burrow with a copy of her counsel's brief and notified her of her right to file a pro se statement of points on appeal. The appellant has not filed a statement of points on appeal. We affirm and grant counsel's request to withdraw as counsel.

At the end of the State's case, Burrow made a motion to dismiss the charge, and the court denied the motion. She renewed her motion at the end of the her case. She was found guilty of negligent homicide.1

A motion for a directed verdict is a challenge to the sufficiency of the evidence.Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Id. On appeal, this court views the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Id.

Substantial evidence supports the verdict. Arvard Brown, a state trooper, testified that he went to investigate an accident on July 21, 1998, at 11 p.m. and found a car nine feet underwater at Denby Creek Bridge. He stated that a body was found in the water. He stated that he talked to Burrow that night while the car was being brought out of the water and that Burrow was hysterical. He stated that he could smell alcohol on her breath. She admitted that she was the owner and driver of the car that was underwater. She stated that she had three passengers in the car at the time it went in the water. He testified that according to a state crime lab report, Burrow's alcohol level at the time she arrived at the hospital, which was approximately two hours after Burrow had the accident, was .10%.

Terry Reynolds, also a state trooper, testified that he was a trained accident re-constructionist and that he was asked to attempt to determine the speed of Burrow's car before it left the roadway. He concluded the car was traveling at least 75.8 miles per hour.

Charles Kokes, associate medical examiner, testified that Pearson died of drowning, with a contributory cause of blunt force head injuries. In addition, he testified that Pearson had a blood-alcohol level of .12% when he died that would have impaired his ability to swimto the surface.

John Ball, sheriff of Montgomery County, testified that he was at the accident scene and talked to Burrow. Ball testified that he could smell alcohol on her breath. He stated that he did not attempt to give her a field sobriety test because she was too upset. Ball testified that Burrow admitted to him on the way to the hospital that she had consumed a mixed drink.

Terry Black testified that he clocked a car on the evening of the accident at 81 m.p.h. He stated that he began to follow the car and that when he went over a hill, he could not see it anymore and quit following it. He said there was no other vehicle in that area the night of the accident.

John Fryar testified that on the night of the accident he and Pearson, who were at Jess Orendorph's house, drank almost a half a gallon of vodka and asked Burrow to take them to pick up a friend.

Cody Herrod testified that he was in the car the night of the accident and that he saw some blue lights come on behind them. He testified that when Burrow saw the lights, she sped up and that the car was going more than 100 miles per hour.

Orendorph testified that Pearson and Fryar were at his house the night of the accident with Burrow. At the time Burrow arrived, she was not drinking, but Orendorph testified that Burrow drank some vodka while at his house.

Burrow testified that when she arrived at Orendorph's house, Pearson and Fryar were "pretty drunk," and that they asked if she would take them to pick up Herrod and she did. She admitted to drinking "some" at Orendorph's house. She stated that she never saw any"blue lights" following her. She stated that when she got to the bridge, she looked away briefly and when she looked back, she saw headlights "coming directly at me." She testified that she put on the brake and tried to swerve to miss the car. She stated that the next thing she remembered was waking up under water. She did not dispute that she could have been going in excess of 75 m.p.h.

Based upon this evidence, this court is satisfied that there was sufficient evidence to convict Burrow and that the court did not err in denying her motions.

There were other rulings that occurred during the trial that were adverse to Burrow. During Ball's testimony he stated that he did not give Burrow a field sobriety test because she was too upset. He also stated that he makes a lot of driving-while-intoxicated arrests. Ball was asked by the State what he looked for when giving field sobriety tests, and Burrow objected, stating that the question and response were irrelevant because Burrow was not given a test. The court overruled the objection. Ball then stated that he gives field sobriety tests to see whether a person can follow instructions. He maintained that Burrow was too upset to listen to the instructions.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. The admission or rejection of evidence is committed to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Jones v. State, 72 Ark. App. 271, 35 S.W.3d 345 (2000). The court did not err in ruling that the testimony was relevant because Ball wasexplaining why he did not perform the test on Burrow.

Another adverse ruling occurred during Orendorph's testimony, when he was also asked if he had learned in a class at school what the effects of alcohol were on the body. Burrow objected, stating that the testimony constituted hearsay. The court ruled that Orendorph could testify to what he had learned, and Orendorph stated that he had learned that when you drink, "it slows down your coordination and you don't react as fast. You don't make the right decisions."

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Ark. R. Evid. 801. The court did not err in this ruling in that Ordendorph was testifying to his personal knowledge, thus the statement was not considered hearsay.

Finally, during Burrow's testimony, she was asked if it was unusual to see juveniles drinking in the presence of their parents. She stated that she did not know, but that on a regular basis she would attend parties with Pearson's mother and that she was sure that the juveniles had access to alcohol at those parties. The State objected, stating that the testimony was speculative. The court sustained the objection. The court did not err in that Burrow was speculating as to whether she thought the children could get access to the alcohol.

There were no other rulings adverse to the appellant. Therefore, from our review of the record and briefs presented, we find there has been full compliance with the requirements of Rule 4-3(j) of the Rules of the Arkansas Supreme Court and the Court of Appeals and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, andthe judgment of conviction is affirmed.

Affirmed.

Pittman and Neal, JJ., agree

1 Her motion did not include the charge of driving while intoxicated.