Nolan v. State

• Decision Date: 12 January 2016
• Docket Number: No. 2014–KM–01647–COA.,2014–KM–01647–COA.
• Citation: 182 So.3d 484
• Parties: Stephen NOLAN a/k/a Stephan Nolan a/k/a Stephen R. Nolan a/k/a Stephen Raymond Nolan, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

182 So.3d 484

Stephen NOLAN a/k/a Stephan Nolan a/k/a Stephen R. Nolan a/k/a Stephen Raymond Nolan, Appellant

v.STATE of Mississippi, Appellee.

No. 2014–KM–01647–COA.

Court of Appeals of Mississippi.

Jan. 12, 2016.

Kevin Dale Camp, Jared Keith Tomlinson, Jackson, attorneys for appellant.

Boty McDonald, Jackson, attorney for appellee.

Before IRVING, P.J., BARNES and JAMES, JJ.

BARNES, J., for the Court:

¶ 1. Stephen Nolan appeals his convictions of driving under the influence (DUI), first offense, and following too closely (tailgating). Nolan argues: the verdicts were against the weight and sufficiency of the evidence; the trial court improperly considered his refusal to submit to the Intoxilyzer 8000 test as evidence of guilt; and the tailgating statute, Mississippi Code Annotated section 63–3–619 (Rev.2013), is unconstitutionally vague. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 20, 2013, at approximately 1:56 a.m., Officer Ryan Ainsworth observed Nolan's vehicle traveling at an unsafe distance behind another vehicle on Rice Road in Ridgeland, Mississippi. Nolan's vehicle then swerved, and his passenger-side tires struck the fog line on the right side of the road. Officer Ainsworth followed Nolan as he drove west down Rice Road and as he turned left onto Old Canton Road. Observing that Nolan was still tailgating the vehicle in front of him, Officer Ainsworth conducted a traffic stop.

¶ 3. Officer Ainsworth asked Nolan if he knew the driver of the car in front of him, and Nolan said he did. During their conversation, Officer Ainsworth smelled an "overwhelming" odor of alcohol coming from Nolan's vehicle, and he noticed Nolan appeared lethargic and had bloodshot, glassy eyes. Nolan admitted he had drunk two twelve-ounce beers between approximately 10 and 10:30 p.m. Officer Ainsworth smelled alcohol on Nolan's breath, and a preliminary breath test indicated the presence of alcohol. Officer Ainsworth then conducted the horizontal-gaze-nystagmus test, from which he observed six of six clues. He then conducted a series of field sobriety tests. Officer Ainsworth observed five of eight clues on the walk-and-turn test. On the one-leg-stand test, Officer Ainsworth observed three of four clues. Nolan was arrested and taken to the Ridgeland Police Department. He refused the Intoxilyzer 8000. The traffic stop was videoed by Officer Ainsworth's dash camera.

¶ 4. On July 30, 2013, Nolan entered a no-contest plea in Ridgeland Municipal Court to DUI, first offense, and tailgating. He was found guilty. He appealed to county court. A bench trial was held, and he was again found guilty. On the DUI conviction, Nolan was fined $900 and sentenced to serve forty-eight hours in the custody of the Madison County Sheriff's Department. The sentence was suspended pending Nolan's completion of the next available Mississippi Alcohol Safety Education Program or an equivalent program in his place of residence in Ontario, Canada, and two years of unsupervised probation. On the tailgating conviction, he was fined $50. He appealed to Madison County Circuit Court, where his convictions and sentences were affirmed.

¶ 5. Nolan raises five issues on appeal to this Court: (1) the evidence was insufficient to support the DUI conviction; (2) the trial court judge improperly considered his refusal to submit to the Intoxilyzer 8000 as evidence of guilt; (3) there was no reasonable suspicion or probable cause for the traffic stop; (4) the verdicts were against the overwhelming weight of the evidence; and (5) the tailgating statute, section 63–3–619, is unconstitutionally vague.

DISCUSSION

¶ 6. As is common with appeals from the City of Ridgeland, City Prosecutor Boty McDonald has failed to file an appellee's brief.¹ "An appellee's failure to file a brief on appeal is tantamount to confession of the errors alleged by the appellant. However, automatic reversal is not required if this Court can say with confidence that the case should be affirmed." Clack v. City of Ridgeland, 139 So.3d 778, 781 (¶ 17) (Miss.Ct.App.2014) (quoting Chatman v. State, 761 So.2d 851, 854 (¶ 9) (Miss.2000) ). We find this case can be confidently affirmed.

I. Sufficiency of the Evidence Supporting the DUI Conviction

¶ 7. A challenge to the sufficiency of the evidence requires this Court to determine 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). The evidence will be deemed insufficient to support the verdict where "the facts and inferences ... point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty[.]" Id. The evidence is viewed in the light most favorable to the State. Id.

¶ 8. Nolan was convicted of common-law DUI under Mississippi Code Annotated section 63–11–30(1)(a) (Supp.2015). This statute provides that "[i]t is unlawful for a person to drive or otherwise operate a vehicle within this state if the person ... [i]s under the influence of intoxicating liquor." Id. "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) (quoting Gilpatrick v. State, 991 So.2d 130, 133 (¶ 18) (Miss.2008) ).

¶ 9. Officer Ainsworth testified that Nolan's vehicle caught his attention because it was traveling too closely to the vehicle in front of it. Officer Ainsworth then observed Nolan's vehicle swerve into the right fog line. After Nolan's vehicle continued to travel unsafely close to the vehicle in front of it, Officer Ainsworth conducted a traffic stop. Officer Ainsworth smelled the "overwhelming" presence of alcohol coming from Nolan's vehicle and on Nolan's breath. Nolan appeared lethargic and had glassy, bloodshot eyes. He admitted to drinking earlier that night. During the walk-and-turn test, Officer Ainsworth observed five of eight clues. Nolan was unable to walk heel-to-toe consistently, was unable to turn properly, had to use his arms for balance, was unable to maintain balance during instructions, and began the test too soon. During the one-leg-stand test, Officer Ainsworth observed three of four clues. Nolan put his foot down for balance, swayed while on one leg, and used his arms for balance. Finally, Nolan refused the Intoxilyzer 8000.

¶ 10. In addition to Officer Ainsworth's testimony, the dash-camera footage was introduced into evidence. The judge stated that he watched the video multiple times before making his decision. The judge found Officer Ainsworth's testimony credible and consistent with the video.

¶ 11. Nolan argues that this Court should not focus on the foregoing evidence, but rather the lack of evidence that his ability to operate his vehicle was diminished. Specifically, Nolan argues that the State failed to prove intoxication because there was no evidence his "normal ability for clarity and control" was lessened. See Leuer v. City of Flowood, 744 So.2d 266, 269 (¶ 11) (Miss.1999) (citing Gov't of Virgin Islands v. Steven, 134 F.3d 526, 528 (3d Cir.1998) ). He relies on Officer Ainsworth's testimony that at no other time than during the field sobriety tests did Nolan exhibit balance problems and that at no point was his speech slurred. Also, Nolan points out that he had no problem safely stopping or exiting his vehicle and that he was cooperative throughout the traffic stop and arrest.

¶ 12. We point out, however, that when reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the State. As such, we find Nolan's assertions without merit. In Saucier v. City of Poplarville, 858 So.2d 933, 936 (¶¶ 16–17) (Miss.Ct.App.2003), this Court upheld a finding of intoxication for common-law DUI where the defendant smelled of alcohol, had glazed eyes and slurred speech, and failed to perform the field sobriety tests adequately. Likewise, we find the evidence here sufficient to support a finding of intoxication. Although Nolan's speech was not slurred, Nolan admitted to drinking, smelled of alcohol, had glassy, bloodshot eyes, and failed to perform the field sobriety tests adequately. Further, Nolan inconsistently testified regarding the amount he drank before the traffic stop. First he stated he had a "few beers," then on cross-examination he stated he had "two beers."

¶ 13. Viewing the evidence in the light most favorable to the State, we find the evidence was sufficient to support the DUI conviction.

II. Refusal to Submit to the Intoxilyzer 8000 Considered as Evidence

¶ 14. Nolan next argues the trial court improperly considered his refusal to submit to the Intoxilyzer 8000 as evidence of intoxication. He argues that because the State failed to prove intoxication, his refusal to submit to the Intoxilyzer was irrelevant.

¶ 15. Nolan's refusal to submit to the breath test was properly admitted into evidence. "If a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action under this chapter." Miss.Code Ann. § 63–11–41 (Rev.2013). Further, our supreme court has held that " Mississippi Rule of Evidence 402 also provides for the introduction of a refusal to submit to a chemical test as it is relevant and not otherwise constitutionally inadmissible." Starkey v. State, 941 So.2d 899, 901 (¶ 5) (Miss.Ct.App.2006) (citing Ricks v. State, 611 So.2d 212, 215–16 (Miss.1992) ).

¶ 16. Having found the State presented sufficient evidence of intoxication, we cannot find the judge erred in admitting Nolan's refusal to submit to...