NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION II

JAMES E. JOHNSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 00-1194

JUNE 13, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THE HONORABLE JOHN W. LANGSTON, JUDGE

[NO. CR 99-4580]

AFFIRMED

James Johnson was convicted of assault in the first degree, and the trial court placed him on twelve months' probation. For his sole point on appeal, Johnson argues that there was insufficient evidence to support his conviction because the State failed to prove that his conduct created a substantial risk of death or serious physical injury. Because Johnson failed to abstract his motion for dismissal, his argument is procedurally barred, and we affirm.

On September 17, 1999, Officer Steve Graves stopped James Johnson for making an illegal turn from the eastbound lane of Baseline Road to the northbound lane off of Baseline Road. While Officer Graves was talking to Johnson, two individuals, Rose Johnson and David Akers, approached him. Based on statements from the two witnesses, the officer arrested Johnson. He was laterformally charge with first-degree assault, reckless driving, and attempting to influence a public servant.

At Johnson's bench trial, Rose Johnson, James's estranged wife, stated that on the day in question Johnson was following her closely and then pulled up beside her and twice swerved his truck into her traffic lane. She stated he was mouthing words at her during the incident and had passed her car when he was pulled over by police. Ms. Johnson testified that, since filing for divorce, Mr. Johnson had called her repeatedly at work, harassing her and threatening her life. She also stated that there was a protection order in effect at the time of the incident.

David Akers, the other witness, stated that he observed Mr. Johnson make several dangerous lane changes, including one where he drove across three lanes of traffic. Akers stated that he wrote down the tag number, a description of the truck, date, time and what happened after witnessing Johnson's driving. Akers said he was "highly upset" because he had his two children in the car with him. Akers stated that he thought Johnson "might have been pursuing another car." Officer Graves testified that he saw Mr. Johnson pull directly in front of Ms. Johnson's car and stopped him for reckless driving. Officer Graves stated he arrested Johnson after he confirmed Ms. Johnson had a protection order against him. He stated that Johnson told him that he would sue him and have his job, so he ticketed Johnson for attempt to influence an officer.

James Johnson testified and explained that on the day of the incident he was on his way to a service call and was in a hurry. He stated he was on his cell phone with his office getting directions to the service location, and his wife just happened to be there. He stated he was not aware of any protection order, he did not swerve toward his wife, and he did not make the statements Officer Graves testified that he made.

Johnson was found guilty of all charges in municipal court and then appealed to the PulaskiCounty Circuit Court, where he was again convicted of assault in the first degree; the remaining charges were merged following the trial. Johnson now appeals, arguing that the evidence was insufficient to support his conviction.

It is well-settled that the appellant bears the burden of producing both a record and an abstract sufficient for appellate review. Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). Here, Johnson does not provide the court with such an abstract because he failed to abstract his motion for dismissal or the trial court's ruling on the motion, and this failure bars any consideration of Johnson's claim.

Were we to reach the merits of Johnson's sufficiency argument, there is sufficient evidence to support his conviction. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). Evidence is substantial if it is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). This court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State as appellee. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

"A person commits assault in the first degree if he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person." Ark. Code Ann. § 5-13-205 (Repl. 1997). A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Ark. Code Ann. § 5-2-202(3) (Repl. 1997). The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. Id.

Here, Johnson's reckless driving posed a substantial risk to drivers who were required to take evasive action in rush-hour traffic to avoid colliding with his car. It is axiomatic that a car accident creates a substantial risk of death or serious physical injury to another person. Rose Johnson testified that Mr. Johnson twice swerved into her lane and caused her to make evasive maneuvers. David Akers stated that Johnson crossed three lanes of traffic during rush hour and passed him in a turn-only lane, forcing him into another lane and almost into another car. Officer Graves testified that he saw Johnson pull directly in front of Ms. Johnson's car and stopped him for reckless driving. The trial court was not required to believe Johnson's self-serving testimony that this conduct was attributable to his talking on a cell phone. Springsteen v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Thus, there is substantial evidence to support the verdict, as Johnson's reckless driving created a substantial risk of an accident.

Affirmed.

Bird and Baker, JJ., agree.