Clarence Dwayne Jefferson v. State of Mississippi , 2014 Miss. App. LEXIS 652 ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-KA-02048-COA
CLARENCE DWAYNE JEFFERSON A/K/A APPELLANT
CLARENCE D. JEFFERSON A/K/A CLARENCE
JEFFERSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/18/2013
TRIAL JUDGE: HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY: HALDON J. KITTRELL
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF FELONY DUI AND
SENTENCED AS A HABITUAL OFFENDER
TO FIVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH ONE YEAR
SUSPENDED AND FOUR YEARS TO
SERVE, AND ORDERED TO PAY A $1,000
FINE AND $1,000 TO THE MARION
COUNTY PUBLIC DEFENDER’S FUND
DISPOSITION: AFFIRMED: 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Clarence Jefferson was convicted of felony DUI, which required proof that he was
driving while intoxicated and that he had two prior DUI convictions within the last five
years. Jefferson contends that the evidence against him was insufficient in both respects.
We disagree, so we affirm his conviction and sentence.
DISCUSSION
1. The Sufficiency of the Evidence Test
¶2. When the sufficiency of the evidence is challenged, the issue before this Court on
appeal 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) (citation
omitted). “[W]here the evidence fails to meet this test it is insufficient to support a
conviction.” Id.
¶3. But, as the United States Supreme Court has explained, a court should not “ask itself
whether it believes that the evidence established guilt beyond a reasonable doubt.” Id.
(quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)) (emphasis in original; internal
quotation marks omitted). “Instead, 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,
443 U.S. at 315).
¶4. A reviewing court must reverse the conviction and render a judgment of acquittal if
“the facts and inferences . . . point in favor of the defendant on any [one] element of the
offense with sufficient force that reasonable men could not have found beyond a reasonable
doubt that the defendant was guilty.” Id. (citation and internal quotation marks omitted).
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2. The Definition of Felony DUI
¶5. The crime of felony DUI is defined by statute. Jefferson was charged under
Mississippi Code Annotated section 63-11-30 (Rev. 2013), which at the time of the alleged
offense provided in relevant part:
(1) It is unlawful for any person to drive or otherwise operate a vehicle within
this state who (a) is under the influence of intoxicating liquor; [or] . . . (c) has
an alcohol concentration of eight one-hundredths percent (.08%) or more for
persons who are above the legal age to purchase alcoholic beverages under
state law . . . .
While the first and second DUI offenses are misdemeanors with a lesser punishment,
Jefferson was charged under subsection (2)(c), which makes it a felony to commit a third or
subsequent DUI within a five-year period (quoted in relevant part):
[F]or any third or subsequent conviction of any person violating subsection (1)
of this section, the offenses being committed within a period of five (5) years,
such person shall be guilty of a felony and fined not less than Two Thousand
Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), shall
serve not less than one (1) year nor more than five (5) years in the custody of
the Department of Corrections; provided, however, that for any such offense
which does not result in serious injury or death to any person, any sentence of
incarceration may be served in the county jail rather than in the State
Penitentiary at the discretion of the circuit court judge. The minimum
penalties shall not be suspended or reduced by the court and no prosecutor
shall offer any suspension or sentence reduction as part of a plea bargain. The
law enforcement agency shall seize the vehicle operated by any person charged
with a third or subsequent violation of subsection (1) of this section, if such
convicted person was driving the vehicle at the time the offense was
committed. Such vehicle may be forfeited in the manner provided by Sections
63-11-49 through 63-11-53. Except as may otherwise be provided by
paragraph (e) of this subsection, the Commissioner of Public Safety shall
suspend the driver’s license of such person for five (5) years.
¶6. Operating a vehicle while under the influence of intoxicating liquor and having two
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convictions for DUIs committed within the last five years are both elements of the offense
of felony DUI. See Williams v. State, 991 So. 2d 593, 605 (¶40) (Miss. 2008). Since
Jefferson must be acquitted if he prevails in showing insufficient evidence of either element
of the offense, we will address the evidence that supports each element separately. See Bush,
895 So. 2d at 843 (¶16).
3. Driving Under the Influence
¶7. The record from the trial indicates that Jefferson was stopped at a safety checkpoint
in Columbia, Mississippi, at around 9:45 p.m. on October 15, 2012, a Friday night. Officer
Justin McKenzie of the Columbia Police Department, a DUI enforcement officer, testified
that he encountered Jefferson after he was stopped. Officer McKenzie, who is a certified
field sobriety test instructor, testified at length as to his observations and investigation of
Jefferson:
A. When I approached [Jefferson] and beg[an] convers[ing] with him, he
seemed pretty nervous. He was kind of pacing back and forth. He had
bloodshot eyes. I could smell the aroma of intoxicating beverages
coming from his person. And based upon that, I deemed that I needed
to perform some field sobriety tests and possibly a portable
Breathalyzer. I used the PBT, preliminary breath test, and it indicated
positive for the presence of alcohol. From there I moved on to the
standardized field sobriety testing.
Q. And you stated before that you had specific training in these field
sobriety tests?
A. Yes, ma’am.
Q. Which tests did you perform first?
A. To begin with, the horizontal gaze nystagmus. During that test I
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received six of the six clues, plus vertical.
Q. Let’s back up. Can you explain to the jury what the horizontal gaze
nystagmus is?
A. It's commonly – a lot of folks will say the finger test or the pen test,
where they are asking you to follow a certain stimulus, be it your
finger, a pen, a small light, or anything of that nature. Of course, the
horizontal and the gaze is referred to as you are going in a horizontal
movement. There’s three phases to that test. Then you want to check
for vertical gaze nystagmus.
Q. When you performed the test, what are you looking for specifically?
A. You’re looking for the nystagmus. Nystagmus is the involuntary
jerking of the eyes.
Q. You said you noted six of six clues. How many possible clues are
there?
A. There are six clues total. That’s based upon a person with two eyes,
because each – you are looking for three clues, and then you have two
eyes. So that’s where you justify the six of the six. That’s based on the
criteria that NHTSA provides us, which is the National Highway
Traffic Safety Administration.
Q. What are the three clues that are six total?
A. The first thing you are looking for is the lack of smooth pursuit. The
second is distinct and sustained nystagmus at maximum deviation. And
the third is onset prior to 45 degrees.
Q. Can you explain that in a way that we can understand it?
A. The first one is just – to begin the test, you would do an equal tracking
format, which is basically just moving it two times in both directions at
roughly the same speed. Just a common pace back and forth. You’re
making sure both eyes will track together so you can perform the test.
From there you check for the lack of smooth pursuit, which is two more
passes at basically the same pace. You are making sure that both eyes
are tracking from side to side together. While you are watching them
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– I start with the left eye first, because you always start with the
suspect’s left side. You move to the left, to the right, back to the left,
then back to the right, and then back to the center. During the first pass
I’m looking at the left eye. The second pass, I’m looking at the right
eye. You are looking for involuntary jerking as the eye moves along.
It was very distinguished that night with Mr. Jefferson.
Q. After you performed the horizontal gaze nystagmus test, what did you
do next?
A. I attempted to do the walk-and-turn, which we were able to complete,
but it was without good cooperation from Mr. Jefferson. Mr. Jefferson
made two different attempts to go back to his vehicle. Both times he
attempted to get – not necessarily get in, but he was reaching into the
vehicle for whatever reason. He was instructed several times not to go
back to the vehicle, to remain where he was.
From that point I would have proceeded with the instruction stage,
which is to basically imagine there’s a line, if there’s not one available,
put his left foot on that line and the right foot in front heel to toe and
remain in that position. Mr. Jefferson continuously attempted to start
the test and do it on his own. We run across that on various occasions
with different impaired people that believe they already know the test,
so they want to go ahead and do the test. The instructions were simple:
To remain in that position. The first clue that was actually noted when
the test was complete was that he could not maintain the balance and
he began the test before instructed to do so. Mr. Jefferson – upon
completing the test, I collected six of the eight clues available, and that
is: He used his arms to balance; he missed heel to toe; he stepped off
the line to the left and to the right; when he made the turn, he made an
incorrect turn by making a wide radius turn, and then he took three
steps backwards in an attempt to regain his balance before proceeding
with nine steps in the other direction.
Q. Did you perform any other field sobriety tests?
A. I attempted the one-leg stand, which is the final stage of the
standardized field sobriety. After he attempted to do the test twice
incorrectly, the test was discontinued.
Q. After you discontinued the field sobriety tests, what did you do next?
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A. I placed him into custody and transported him to Marion County jail.
¶8. After his arrest, Jefferson initially refused to have his blood alcohol concentration
tested, but he eventually consented to test his breath with a machine called the Intoxilyzer
8000. However, the device would not self-calibrate properly and could not be used.
According to Officer McKenzie, when it became clear the Intoxilyzer 8000 would not work,
Jefferson insisted on using it. He did not respond to offers to have blood drawn for direct
testing.
¶9. Officer McKenzie also testified that Jefferson admitted he had “a few earlier,”
apparently referring to alcoholic beverages. McKenzie concluded, from his observations and
from his training and experience, that Jefferson was under the influence.
¶10. Mississippi’s DUI statute provides that proof of driving under the influence may be
shown either by the defendant’s blood alcohol content, called “per se DUI,” or by evidence
sufficient to show the defendant was “under the influence of intoxicating liquor,” – common
law DUI. “Common law DUI is proven when a defendant’s blood alcohol results are
unavailable . . . but there is sufficient evidence to [show] that the defendant operated a motor
vehicle under circumstances indicating his ability to operate the vehicle was impaired by the
consumption of alcohol.” Young v. State, 119 So. 3d 309, 315 (¶19) (Miss. 2013) (citation
omitted). Since there were no blood alcohol test results available in this case, Jefferson’s
prosecution was under the common law DUI theory.
¶11. Officer McKenzie testified that Jefferson admitted he had been drinking earlier that
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night; that he smelled of alcoholic beverages, had bloodshot eyes, appeared nervous, and
acted obstinately; and that a portable breath test was positive for alcohol. These are all
evidence of intoxication. See Saucier v. City of Poplarville, 858 So. 2d 933, 936 (¶14) (Miss.
Ct. App. 2003). Officer McKenzie also described at length how Jefferson failed or could not
complete all three field sobriety tests, including the walk-and-turn, the horizontal-gaze-
nystagmus, and the one-leg-stand. Field sobriety tests can also be evidence of intoxication.
See Deloach v. City of Starkville, 911 So. 2d 1014, 1018 (¶16) (Miss. Ct. App. 2005).
¶12. Jefferson exercised his right not to testify in his own defense, instead relying on the
argument that the prosecution failed to meet its burden to prove him guilty beyond a
reasonable doubt. On appeal, he points out that no one testified that his operation of the
vehicle appeared to be affected. He notes that his performance of the field sobriety tests
could have been affected by conditions such as arthritis or poor footwear, though there was
no evidence this was actually the case. Jefferson further notes that Officer McKenzie
admitted the encounter could have been recorded on video, but was not.
¶13. All of Jefferson’s arguments are actually directed to the weight of the evidence rather
than its sufficiency. In other words, Jefferson attempts to place the evidence of guilt into
doubt. But conflicts in the evidence, or conflicting inferences that could be drawn from the
evidence, were for the jury to resolve as the trier of fact. Since the jury convicted Jefferson,
on appeal this Court must view the evidence “in the light most favorable to the prosecution,”
and ask only whether “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)
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(citation omitted).
¶14. After reviewing the record, we find the evidence we have discussed above, viewed
in its totality, was sufficient for a reasonable juror to conclude beyond a reasonable doubt
that Jefferson “operated a motor vehicle under circumstances indicating his ability to operate
the vehicle was impaired by the consumption of alcohol.” Young, 119 So. 3d at 315 (¶19)
(citation omitted). Jefferson’s arguments to the contrary are without merit.
4. Prior DUI Convictions
¶15. The other contested element of Jefferson’s guilty verdict is whether he had been
convicted of two other DUIs committed in the previous five years. To prove this element,
the prosecution called two witnesses, custodians of court records from two different
jurisdictions in Mississippi.
¶16. Melissa Creel was a deputy court clerk at the Municipal Court of Petal. She provided
the foundation for introducing a certified abstract of a conviction of “Clarence D Jefferson”
for a DUI committed on January 17, 2010. The abstract contained various identifying
information such as an address in Columbia, Mississippi, Jefferson’s race and sex, the tag
number and make of his vehicle, and his social security number and date of birth. It
indicated “NL” for the driver’s license, presumably indicating “no license.”
¶17. Wynette Parkman was a clerk who oversaw the Marion County Justice Court clerk’s
office. She authenticated a certified abstract of conviction and various accompanying
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documents for a DUI committed by “Jefferson Clarence Dwayne” on January 18, 2010.1 The
abstract also contained identifying information, but it was not exactly the same as the Petal
abstract. Jefferson’s race and sex were indicated and were the same. The same day and
month were given for the birth, but the year was different – 1969 on the Petal abstract and
1964 on the Marion County abstract. A different address was shown, but both were in
Columbia. The Marion County abstract had no box for a social security number, but it gave
a driver’s license number that was the same as Jefferson’s social security number on the Petal
abstract. No vehicle information was given.
¶18. The ticket for the DUI in today’s case was admitted into evidence and authenticated
by Officer McKenzie. It showed Jefferson’s race and sex as on the abstracts, and the same
day and month of birth, with 1964 as the year. Jefferson’s license address was the same
address as on the Marion County abstract. Jefferson’s driver’s license number was the same
as the driver’s license number on the Marion County abstract and the social security number
on the Petal abstract. Officer McKenzie testified that this was also Jefferson’s social security
number. A vehicle was indicated, but it was different from the one on the Petal abstract.
¶19. Jefferson’s argument on appeal is that because some of the information on these
documents is conflicting – primarily the year of birth, 1964 versus 1969 – the jury did not
have before it sufficient evidence to conclude it was the same Clarence Jefferson in each
case. We disagree. All of the documents bear the same social security or driver’s license
1
It should be noted that this is the day after the date of the offense on the other
abstract.
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number, and Officer McKenzie testified that it was both Jefferson’s social security number
and driver’s license number. It is also a matter of common knowledge that, until recently,
Mississippi often used a person’s social security number as his driver’s license number. The
differing year of birth can be explained as a scrivener’s error, given the similarity of the
numerals “4” and “9” and Creel’s testimony that the Petal abstract was entered into a
computer from a handwritten ticket. As to Jefferson’s address, it is true that the addresses
on the two abstracts differ. This is concerning because the abstracts refer to offenses that
occurred on consecutive days – January 17 and 18, 2010. However, the source of the
addresses is not given; they could have come from Jefferson himself, from his driver’s
license, or from some other source. Addresses are easily changed and one’s address as
indicated on a license or kept in a database can be outdated. In fact, one of the abstracts
indicates “NL” for the license number, presumably indicating that Jefferson had no license
with him when he was arrested. Given this, that the addresses were different goes to the
weight of this evidence rather than its sufficiency.
¶20. “It [is] within the jury’s province to draw reasonable inferences from the evidence
based on their experience and common sense.” Broomfield v. State, 878 So. 2d 207, 215
(¶30) (Miss. Ct. App. 2004). Jefferson’s name, social security / driver’s license number, day
and month of birth, sex, race, and city of residence appear on both abstracts. There is some
conflicting data, but it is easily explained; so we are satisfied that a reasonable jury could
have found that Jefferson is the person who was convicted of both prior offenses. This issue
is without merit.
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CONCLUSION
¶21. Because there was sufficient evidence for a reasonable jury to find every element of
the offense, the question of Jefferson’s guilt or innocence was properly entrusted to the jury.
This Court cannot disturb the jury’s verdict on appeal.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF
CONVICTION OF FELONY DUI AND SENTENCE AS A HABITUAL OFFENDER
OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH ONE YEAR SUSPENDED AND FOUR YEARS TO SERVE,
AND TO PAY A $1,000 FINE AND $1,000 TO THE MARION COUNTY PUBLIC
DEFENDER’S FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO MARION COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.
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