Marlon Lavelle Oatis v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-KA-01011-COA
MARLON LAVELLE OATIS A/K/A MARLIN APPELLANT
OATIS A/K/A MARLON OATIS A/K/A MARLON
L. OATIS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/13/2013
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF FELONY DRIVING
UNDER THE INFLUENCE AND
SENTENCED, AS A HABITUAL
OFFENDER, TO FIVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS,
WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION
DISPOSITION: AFFIRMED - 09/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1. Marlon Lavelle Oatis challenges the weight and sufficiency of the evidence that led
to his May 15, 2013 conviction by a jury in the Harrison County Circuit Court. Additionally,
Oatis submits that the jury’s general verdict, without designating whether he was guilty of
“common law” driving under the influence (DUI) and/or “per se” DUI, is reversible error.
For the reasons below, we find the issues raised in Oatis’s appeal to be without merit, and
we affirm his conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. In March 2011, Oatis was charged, as a habitual offender pursuant to Mississippi
Code Annotated section 99-19-81 (Rev. 2007), on two counts: DUI in violation of
Mississippi Code Annotated section 63-11-30(1)(a) (Rev. 2013) and DUI in violation of
Mississippi Code Annotated section 63-11-30(1)(c) (Rev. 2013). His habitual-offender status
was based upon three prior felony DUI convictions. Additionally, as a result of his three
prior DUI convictions, he was charged under Mississippi Code Annotated section 63-11-
30(2)(c) (Rev. 2013), making the two counts in the present case felony DUIs. Oatis’s jury
trial began on May 14, 2013, and ended the following day, May 15, 2013. The events
leading to his arrest, indictment, and conviction were presented through the following
testimony and other evidence at his trial.
¶3. According to his testimony at trial, Officer Steven Ramsey was working as a
patrolman for the City of Gulfport on June 24, 2010, when he responded to a motor-vehicle
accident at 1:20 a.m. Officer Ramsey arrived at the accident scene, where only one car was
present. The occupants of the car said the other car involved was a black car driven by a
black male, and he had continued driving southbound on 30th Avenue. Officer Ramsey
continued driving southbound on 30th Avenue for approximately one block, when he located
a black car with damage consistent with being in a recent accident. The black car was parked
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in a gas-station parking lot with a black male, later identified as Oatis, sitting in the driver’s
seat behind the steering wheel. The black car was parked so close to a concrete wall that no
one could enter or exit the black car from the passenger side. Officer Ramsey testified that
he approached the driver’s side and spoke to Oatis through a half-open window. He
described Oatis’s demeanor as stunned and angry. Officer Ramsey also stated that he
smelled an intoxicating odor coming from the car, and Oatis told him he had consumed two
twenty-four ounce high-gravity beers before driving. According to Officer Ramsey, Oatis
could not exit the car because the concrete wall blocked the exit on the passenger side, and
the door on the driver’s side could not be opened due to damage from the accident. The fire
department was later able to open the driver’s side door, and Oatis was taken to the hospital
after complaining about pain.
¶4. Sergeant Brandon Clark of the Gulfport Police Department testified that during his
interaction with Oatis, Oatis’s demeanor ranged from calm to angry, irritated, and belligerent.
Sergeant Clark also testified that he smelled an intoxicating odor coming from Oatis, as well
as Oatis having slurred speech and bloodshot/glassy eyes. Oatis also informed Sergeant
Clark that he was the one who had a green light at the intersection. Sergeant Clark did not
conduct any field sobriety tests because Oatis complained of pain and was taken to the
hospital via ambulance. Sergeant Clark did obtain a warrant to draw Oatis’s blood for
analysis, which Nurse Jeanne Torres at Memorial Hospital’s emergency room did draw and
turn over to the police department approximately an hour and a half after the accident.
Lastly, over Oatis’s objection, Sergeant Clark testified that Oatis was not safe to operate a
car based on his level of intoxication.
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¶5. Next, Mississippi Crime Lab forensic scientist Joe Ellington testified that he
completed the crime-lab report and analyzed Oatis’s blood samples using a head space gas
chromatograph, and the result was a .20 blood-alcohol content (BAC). He could not testify
as to Oatis’s BAC at the time of the accident, only at the time it was drawn. Ellington stated
that he did not calibrate the machine before testing because that is not the standard procedure
and that he trusted his colleagues’ calibrations. He testified that “[w]e all review the
calibration data, and the calibration would not have been approved by a supervisor unless it
was ok to run analysis.” Additionally, after every ten vials tested, they run a control sample
to monitor whether the instrument is working correctly.
¶6. Following the State’s witnesses, Oatis moved for a directed verdict, which the circuit
court did not grant. Oatis did not present any evidence or testify on his own behalf. The jury
returned a verdict finding Oatis guilty of felony DUI. The circuit court sentenced Oatis to
five years in the custody of the Mississippi Department of Corrections (MDOC) to be served
day-for-day due to his habitual-offender status, with credit for time served. He was also
ordered to complete the MDOC drug and alcohol treatment program.
¶7. Oatis filed a motion for a new trial or, in the alternative, a judgment notwithstanding
the verdict (JNOV). The circuit court overruled Oatis’s motion, and Oatis filed the present
appeal. On appeal, he submits that there was insufficient evidence to support the guilty
verdict, that the verdict was against the overwhelming weight of the evidence, and that the
jury’s general verdict was insufficient because it is “uncertain upon which ground the jury’s
decision was based.”
STANDARDS OF REVIEW
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¶8. “The standard of review for a post-trial motion is abuse of discretion.” Dilworth v.
State, 909 So. 2d 731, 736 (¶17) (Miss. 2005) (citing Howell v. State, 860 So. 2d 704, 764
(¶212) (Miss. 2003)).
¶9. A motion for a new trial is a challenge to the weight of the evidence, and the verdict
will only be disturbed when it is so contrary to the weight of the evidence that allowing it to
stand would sanction an unconscionable injustice. Bush v. State, 895 So. 2d 836, 844 (¶18)
(Miss. 2005) (citation omitted). When reviewing a challenge to the weight of the evidence,
this Court views the evidence in a light most favorable to the verdict. Id.
¶10. However, a motion for a JNOV is a challenge to the sufficiency of the evidence, and
this Court will view all evidence in the light most favorable to the State. Id. at 843 (¶16).
“[T]he 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; and where the evidence fails to meet this test[,] it is
insufficient to support a conviction.’” Ivy v. State, 949 So. 2d 748, 751 (¶15) (Miss. 2007)
(quoting Bush, 895 So. 2d at 843 (¶16)).
¶11. Lastly, “the basic test with reference to whether or not a verdict is sufficient as to form
is whether or not it is an intelligent answer to the issues submitted to the jury and expressed
so that the intent of the jury can be understood by the court.” Coles v. State, 756 So. 2d 12,
14 (¶12) (Miss. Ct. App. 2009) (citation omitted).
ANALYSIS
I. Sufficiency of the Evidence
a. Common-Law DUI
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¶12. Oatis first argues that there was not sufficient evidence to uphold the guilty verdict
in regard to Count I of his indictment. Count I of his indictment charged him with violation
of section 63-11-30(1)(a), also referred to as “common-law DUI.” Section 63-11-30(1)(a)
provides: “It is unlawful for any person to drive or otherwise operate a vehicle within this
state who . . . is under the influence of intoxicating liquor[.]” “Common[-]law DUI is proven
when . . . 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.” Jefferson v. State, 138 So. 3d 263, 266 (¶11) (Miss. Ct. App. 2014)
(quoting Young v. State, 119 So. 3d 309, 315 (¶19) (Miss. 2013)).
¶13. Based on the evidence presented at trial, we find that there was sufficient evidence for
a jury to find Oatis guilty of every element of common-law DUI. Officer Ramsey testified
that he smelled an intoxicating odor coming for Oatis’s car and that Oatis told him he had
consumed two twenty-four-ounce high-gravity beers an hour before driving. Sergeant Clark
testified that he also smelled an intoxicating odor from Oatis’s car and that Oatis had slurred
speech and bloodshot/glassy eyes. Both Officer Ramsey and Sergeant Clark testified that
Oatis acted angrily and belligerently, at one point cursing loudly at them. Assuming Oatis
was involved in the wreck, he then fled the scene and parked in a location where he could
not get out of the vehicle on the passenger side due to a concrete wall, and he could not exit
from the driver’s side due to damage from the wreck. While neither Officer Ramsey nor
Sergeant Clark observed Oatis driving the car, Oatis admitted that he had been in a wreck,
but he claimed he had the green light. See Holloway v. State, 860 So. 2d 1244, 1246-47
(¶12) (Miss. Ct. App. 2003) (“A person may be arrested, tried, and convicted of operating
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a motor vehicle while under the influence of an intoxicating liquor even if there is no
eyewitness presented who viewed the defendant operating the vehicle, provided there is
sufficient evidence.”)
¶14. “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). Looking at the evidence presented at trial, a jury could
reasonably find that Oatis had been driving his car while under the influence of alcohol.
¶15. This issue has no merit.
b. Per Se DUI
¶16. Oatis next argues that the evidence was insufficient to convict him of violating section
63-11-30(1)(c), which provides: “It is unlawful for any person to drive or otherwise operate
a vehicle within this state who . . . 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[.]” According to Oatis, the State failed to prove this ground
because it failed to show what his BAC was at the time he was driving, as opposed to an hour
and a half later when his blood was actually drawn. Oatis also submits that the blood test
was not performed on a properly calibrated machine; therefore, the results were insufficient
for a jury to find him guilty.
¶17. Oatis’s argument that the State failed to prove his BAC was over the legal limit at the
time of the accident fails. This Court has stated that “[t]here is no requirement that the State
must prove a defendant’s exact BAC at the time of the incident, only that the defendant’s
BAC was equal to or above the legal limit.” Ludwig v. State, 122 So. 3d 1229, 1234 (¶15)
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(Miss. Ct. App. 2013). In Smith v. State, 942 So. 2d 308, 314 (¶¶13-14) (Miss. Ct. App.
2006), this Court held that a delay between the time of an accident and the taking of a blood
sample, with no evidence of deliberate delay on the part of an arresting officer, would not
render a blood sample inadmissible. This Court further elaborated by saying:
Furthermore, we disagree with Smith's contention that in order for his BAC to
be admissible, the State must prove what his BAC was at the time of the
accident. The effect of such a ruling would be to virtually abrogate chapter 11
of the Mississippi Code, the implied consent laws. The repercussions of such
a holding would warrant an exclusion from evidence of all blood[-]test results,
obtained by virtue of a valid search warrant, based upon the assertion that the
delay in acquiring the blood sample precludes the test results from assisting the
jury in determining whether or not a defendant's BAC exceeded the legally
permissible minimum level at the time of the accident.
Id. at (¶15).
¶18. Oatis’s blood sample was taken approximately an hour and a half after the accident.
Sergeant Clark testified that he obtained a warrant in order to have the blood sample taken.
This action explains the delay between the time of the incident and the time Oatis’s blood
was drawn and shows no evidence of a deliberate delay. Based on the evidence presented
at trial, a jury had sufficient evidence through Ellington’s testimony that the test results
showed Oatis’s BAC to be .20. His argument on this issue is without merit.
¶19. Oatis’s next contention is that the State failed to provide evidence that the head space
gas chromatograph was properly calibrated. We note that the State did not provide
calibration certificates, nor did Ellington testify that he was the person who calibrated the
machine. However, Oatis did not object to Ellington’s testimony regarding the test results,
and he only objected to Ellington’s report being admitted into evidence because it was
cumulative of Ellington’s testimony. Oatis did thoroughly cross-examine Ellington on the
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machine’s calibration, but the issue was never objected to or raised for the circuit court to
decide in a motion in limine, during trial, or in a motion for a new trial.
¶20. It is well settled that “[a] defendant is procedurally barred from raising an objection
on appeal that is different than that raised at trial[,]” and “[a] trial judge will not be found in
error on a matter not presented to him for decision.” McMurtry v. State, 105 So. 3d 395, 399
(¶13) (Miss. Ct. App. 2012) (quoting Jones v. State, 606 So. 2d 1051, 1058 (Miss. 1992)).
It follows that this issue is procedurally barred.
II. Weight of the Evidence
¶21. While Oatis submits that the verdict was against the weight of the evidence, he
presents no meaningful argument or citation to authority in support of this contention as
required by Mississippi Rule of Appellate Procedure 28(a)(6). Rule 28(a)(6) provides that
an appellant’s brief “shall contain the contentions of the appellant with respect to the issues
presented, and the reasons for those contentions with citations to authorities, statutes, and
parts of the record relied on.” (Emphasis added). Because Oatis’s brief on this issue is
found to be lacking, we decline to address this issue, as it is deemed abandoned. See
McGhee v. Young, 138 So. 3d 259, 261-62 (¶9) (Miss. Ct. App. 2014); Thompson v. State,
92 So. 3d 691, 697 (¶13) (Miss. Ct. App. 2012).
III. Form of the Jury Verdict
¶22. “If a jury has been instructed that it may rely on any one of two or more independent
grounds, and one of those grounds is insufficient, a subsequent general verdict of guilty must
be set aside because the verdict may have rested exclusively on the insufficient ground.”
Phillips v. State, 493 So. 2d 350, 355 (Miss. 1986). The jury’s verdict stated: “We, the jury,
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find the defendant, Marlon Lavelle Oatis, guilty of felony driving under [the] influence.”
Since the jury could have convicted Oatis of either common-law DUI or per se DUI, and the
evidence was legally sufficient for either crime, the jury’s return of a general verdict is of no
significance.
¶23. This issue is without merit.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND
SENTENCE, AS A HABITUAL OFFENDER, OF FIVE YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.
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