IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KM-1129-COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

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1 E-Filed Document Jun :52: KM COA Pages: 10 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI D'ANDRE TERRELL APPELLANT VS. NO KM-1129-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE...1 STATEMENT OF FACTS...2 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 ISSUE I. & ISSUE II. THE TRIAL COURT WAS CORRECT IN DENYING THE MOTION FOR DIRECTED VERDICT AND THE MOTION FOR RE-CONSIDERATION AFTER THE VERDICT CONCLUSION...6 CERTIFICATE OF SERVICE...7 i

3 TABLE OF AUTHORITIES FEDERAL CASES Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) Navarette v. California, 134 S.Ct. 1683, 1691 (2014) (Decided Apr. 22, 2014) STATE CASES Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss. 2000) Baskin v. State, 39 So.3d 959, 962 (Miss. Ct. App. 2010) Bush v. State, 895 So.2d 836, 843 (Miss. 2005)...3 Carr v. State, 208 So.2d 886, 889 (Miss. 1968)...3 Croft v. State, 992 So.2d 1151, 1157 (Miss. 2008)...3 Istiphan v. City of Madison, 81 So.3d 1200 (Miss. App. 2012) Keys v. State, 963 So.2d 1193 (Miss. App. 2007)...4 STATE STATUTES Miss. Code Ann (1)...1 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI D'ANDRE TERRELL APPELLANT VS. NO KM-1129-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE Defendant was convicted of driving under the influence of intoxicating liquor in violation of Miss. Code Ann (1) (C.p. 14), and found guilty of DUI first in Copiah County Justice Court. (C.p. 12). Defendant was sentenced to a fine of $500 and costs of $ (C.p. 12). Defendant appealed his DUI conviction to the Circuit Court of Copiah County for a trial de novo. (C.p. 6). After a bench trial, the court found defendant guilty of DUI first and affirmed the ruling of the justice court. Defendant was ordered to pay the costs of court and the case was remanded to the Justice Court for execution of judgment. (C.p. 23). Defendant filed a motion for reconsideration, th which was denied on the 5 day of June, (C.p. 26). It is from that order and the ruling of the Copiah County Circuit Court that defendant filed his notice of appeal. (Notice of Appeal, c.p. 30). 1

5 STATEMENT OF FACTS Defendant went driving past a law enforcement roadblock that was checking for driver s licenses. Defendant drove past then backed up to the roadblock. Tr.19, 21, Officer Morgan noticed that defendant s eyes were red and his pupils dilated and there was the odor of intoxicating beverages on defendant s breath. Tr. 5. Two times the officer had defendant blow into the portable breathalyzer. Tr. 7, 24. Both times indicated the presence of alcohol. When defendant got out of his vehicle he had to lean on the vehicle, Tr. 10, and he was argumentative with one of the officers. Tr. 10. Defendant was transported to the Copiah County Sheriff s Department for the administration of a breath test on the Intoxilyzer The officer tried twice but was unable to get a test result from the Intoxilyzer (C.p. 15 & 16). Defendant testified he had not been drinking, but had a cold and an irritating contact. Defendant did admit he had taken DayQuil and NyQuil for his cold that day. The Circuit Judge found defendant, beyond a reasonable doubt,... was guilty of operating a vehicle under the influence of alcohol on the date and time in question. Tr. 25. SUMMARY OF THE ARGUMENT Issue I. & Issue II. The trial court was correct in denying the motion for directed verdict and the motion for re-consideration after the verdict. There was legally sufficient evidence for each element of the offense of driving under the influence. The Trial Court did not err in denying the motion for dismissal at the conclusion of the State s Case-in-chief. Further, upon additional testimonial evidence by the defense, the trial court did not err in denying the motion for reconsideration after the verdict of Guilty was affirmed. 2

6 ARGUMENT Issue I. & Issue II. The trial court was correct in denying the motion for directed verdict and the motion for re-consideration after the verdict. Defendant through counsel sought dismissal of the charge after the State s case -in-chief (Tr. 13) and in a motion for reconsideration after the verdict. (C.p ). The trial court denied both motions. (Tr. 13 & C.p ). 7. In a criminal proceeding, motions for a directed verdict and a JNOV challenge the legal sufficiency of the evidence supporting the guilty verdict. Baskin v. State, 39 So.3d 959, 962 ( 6) (Miss.Ct.App.2010) (quoting Croft v. State, 992 So.2d 1151, 1157 ( 24) (Miss.2008)). Because a motion for a directed verdict and a motion for a JNOV both require consideration of the evidence before the trial court when the decision to grant or deny was made, this Court only reviews the ruling on the last occasion that the challenge was made. Id. (citations omitted). Thus, we will review Istiphan's challenge to the sufficiency of the evidence as pertaining to his motion for a JNOV. In determining whether the evidence is sufficient to sustain a conviction, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.] Bush v. State, 895 So.2d 836, 843 ( 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We will determine the evidence to be sufficient if the evidence against the defendant is such that reasonable fair-minded men in the exercise*1205 of impartial judgment might reach different conclusions on every element of the offense[.] Id. (citations omitted). 8. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id. at 844 ( 18) (citation omitted)). The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 ( 18) (Miss.2000)). We weigh the evidence, however, in the light most favorable to the verdict. Id. (citation omitted)). 3

7 Istiphan v. City of Madison, 81 So.3d 1200 (Miss.App. 2012). It is now argued on appeal that there was no evidence of intoxicating liquor presented by the State. Defendant argues that the portable breathalyzer test is not evidence of intoxication nor is the smell of alcohol. (Def.Br. p.7). There was testimonial evidence that defendant was driving, had judgment problems (backing up to roadblock for license check), had bloodshot eyes and the odor of alcohol on his breath. Additionally he tested positive for alcohol on the portable breathalyzer. He also observed a marijuana cigarette in the vehicle. Tr. 6. Further, upon exiting the vehicle defendant had difficulty standing and was argumentative. Tr. 10. Defendant testified that he had taken DayQuil and NyQuil that day for his cold. Tr 24. The consumption of these over the counter medicines has been noted before by the appellate courts of this State. 15. In addition to the testimony of Deputy Merritt, Keys testified about his encounter with the deputy. Keys testified that he had consumed NyQuil, a medication containing alcohol. Keys v. State, 963 So.2d 1193 (Miss.App. 2007). The odd judgment of defendant driving past the officers then backing up to give them his license and insurance is the type of judgment decision that is indicative of driving under the influence. The U.S. Supreme Court recently cited approvingly a document by the National Highway Transportation Safety Administration: Indeed, the accumulated experience of thousands of officers suggests that these sorts of erratic behaviors are strongly correlated with drunk driving. See Nat. Highway Traffic Safety Admin., The Visual Detection of DWI Motorists 4 5 (Mar. 2010), online at nhtsa. gov/ staticfiles/ nti/ pdf/ pdf (as visited Apr. 18, 2014, and available in Clerk of Court's case file). Navarette v. California, 134 S.Ct. 1683, 1691 (2014)(Decided Apr. 22, 2014). 4

8 Realizing the context was different in the California case, the facts of this case indicate, taken together, however, that defendant was driving while intoxicated. The officer gave a summary of the facts and observations that he witnessed for the Court, Tr. 9-10, and established venue and identification of the defendant as the driver. So, at the Conclusion of the State s case, the trial Court applied the correct standard to find that the State had met the burden of proof and supported a prima facie case. Tr. 13. Additionally after the defendant s case-in-chief, including the testimony of defendant, the trial court had additional testimonial evidence corroborating the officer s testimony and the added admission of defendant that he had consumed DayQuil and NyQuil, but had told the Officers that he had taken a Hall s Tr. 24. It is the position of the State, that the Circuit Court was correct in denying the motion for directed verdict at the conclusion of the State s case and denying the motion for reconsideration after the verdict. There was evidence, beyond the smell of alcohol alone, to support the ruling of the trial Court. (Impaired judgment in driving (backing up), blood shot eyes, had to lean on the vehicle after exiting, wouldn t stand up straight). In addition defendant at trial admitted to his consuming DayQuil and NyQuil, a medication containing alcohol. This testimony was, apparently different than what he had told the officers in the field. Tr.24. There being no error, no relief should be granted on these assertions of trial court error. 5

9 CONCLUSION Based upon the arguments presented herein as supported by the record on appeal, the State would ask this reviewing court to affirm the ruling of the Circuit Court which affirmed the verdict and sentence of the justice court in finding this defendant Guilty. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) BY: /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

10 CERTIFICATE OF SERVICE I, JEFFREY A. KLINGFUSS, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Lamar Pickard Circuit Court Judge P.O. Box 310 Hazlehurst, MS Honorable Elise B. Munn County Prosecuting Attorney P.O. Drawer 768 Hazlehurst, MS Jeffrey A. Varas, Esq. P.O. Box 886 Hazlehurst, MS This the 16th day of June, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL 7