ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

WILLIAM HELTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-1139

January 14, 2004

APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT

[NO. CR 202-13]

HONORABLE CHARLES A. YEARGAN, JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, William Helton, was found guilty of negligent homicide by the trial court sitting as the trier of fact. As a result, the court sentenced him to a term of ten years in prison.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. This motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, including all adverse rulings and a statement as to why counsel considers each point raised as being incapable of supporting a meritorious appeal. A copy of his counsel's brief and a letter notifying appellant of his right to file a list of points on appeal within thirty days was sent by certified mail to appellant's last known address, but the post office was unable to effect delivery after three attempts. The State concurs that the appeal is wholly without merit.

There were two adverse rulings at trial. First, the appellant moved for a directed verdict at the end of the State's case and at the close of all evidence. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere speculation and conjecture. Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003). All evidence is considered in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003).

A person commits the offense of negligent homicide if he negligently causes the death of another person, not constituting murder or manslaughter, as a result of operating a vehicle while intoxicated, or if at that time there is an alcohol concentration of .08% or more in the person's blood. Ark. Code Ann. § 5-10-105(a)(1) (Supp. 2003). As so defined, negligent homicide is a class C felony carrying a possible sentence of between three and ten years in prison. Ark. Code Ann. § 5-10-105(a)(2) (Supp. 2003); Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1997).

There was testimony at trial that appellant was traveling in his vehicle at a high rate of speed and passing other vehicles in a no-passing zone. While attempting to pass one such vehicle, appellant's vehicle sideswiped an oncoming vehicle and then collided head-on with another vehicle driven by Mrs. Martha Turner. Mrs. Turner was pronounced dead at the scene. A blood-alcohol test taken by appellant soon after the accident yielded a result of .174%. Appellant gave a statement to the police in which he admitted that he had consumed two, eight-ounce cups of Crown Royal and Coke prior to the accident. An officer at the scene detected the odor of alcohol in appellant's vehicle, and inside he found an opened bottle of Crown Royal as well as a styrofoam cup. We cannot say there is no substantial evidence to support the trial court's finding of guilt.

In its cross-examination of the appellant during the sentencing phase of trial, the prosecution referred to statements given by the passengers in appellant's vehicle and noted that one of the passengers had recalled that he had been driving at one time that afternoon. Appellant objected on the ground that the question was based on facts not in evidence. The objection was overruled, and appellant answered the question by saying that he had been driving at all times that afternoon. We agree with counsel that no possible prejudice could have resulted from the trial court's ruling. There was never any question that appellant was the driver at the time of the accident, and at this stage of the proceedings appellant had already been found guilty. Therefore, any suggestion that one of the passengers may have been driving at some earlier point in time was of no consequence.

Based on our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 4-3(j) and that the appeal is without merit. Counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Robbins and Vaught, JJ., agree.