Ostrander v. State, 2000-KM-01151-SCT.

• Court: United States State Supreme Court of Mississippi
• Citation: 803 So.2d 1172
• Docket Number: No. 2000-KM-01151-SCT.,2000-KM-01151-SCT.
• Parties: Ronald OSTRANDER v. STATE of Mississippi.
• Decision Date: 10 January 2002

803 So.2d 1172

Ronald OSTRANDER
v.
STATE of Mississippi

No. 2000-KM-01151-SCT.

Supreme Court of Mississippi.

January 10, 2002.

803 So.2d 1173

V.W. Carmody, Jackson, Pamela Luckie Castle, Hattiesburg, Attorneys for Appellant

Office of the Attorney General, by Dewitt T. Allred, III, Jackson, Attorneys for Appellee.

EN BANC.

SMITH, P.J., for the Court.

¶ 1. On March 1, 2000, Ronald Ostrander was convicted of a first offense D.U.I. in the Circuit Court of Greene County. Aggrieved by the judgment entered on the jury's decision, he timely perfected this appeal.

FACTS

¶ 2. On February 24, 1996, Ronald Ostrander was arrested by Mississippi Highway Patrol Sergeant Tommy Henderson at a road block in Greene County for driving under the influence of alcohol. The arrest was based on Henderson's observations of indicia of intoxication, Ostrander's admission that he had been drinking, and the presence of beer in Ostrander's car. Ostrander refused to submit to the intoxilyzer test. He was charged with a D.U.I. second offense.

¶ 3. Ostrander was tried and convicted in the Justice Court of Greene County with his sentencing delayed "pending a DUI appealed from the Municipal Court of Leakesville." Ostrander filed a notice of appeal pursuant to Miss.Code Ann. § 99-35-1 to the Circuit Court of Greene County. His motion for a jury trial was granted. The State offered one witness at the trial, the Mississippi Highway Patrolman who issued the DUI, Trooper Tommy Henderson. The State attempted to introduce a court abstract to support the charge of a second offense DUI. Defense counsel objected and argued, inter alia, that the first conviction had been dismissed, and thus, could not be used to support the charge of a second offense DUI. The trial judge sustained the objection to the introduction of the abstract.

¶ 4. The trial then proceeded with the cross-examination of Trooper Henderson. After brief redirect examination, the State rested. Ostrander moved for a directed verdict asserting that the State failed to prove the element of a prior conviction, and as a result, failed to prove a required element of its case. The trial judge overruled

803 So.2d 1174

the motion for a directed verdict as to the case as a whole, but ruled that a first offense DUI is a lesser-included offense of a DUI second offense. He allowed the case to go the jury as a DUI first offense. The jury found that Ostrander was guilty of a DUI first offense. The trial judge sentenced Ostrander to 48 hours in the Greene County jail, a $1,000 fine, and costs of court. Ostrander promptly moved for a new trial, or in the alternative, for a JNOV. This motion was denied. Aggrieved, Ostrander perfected his appeal to this Court. He raises the following issue

WHETHER THE TRIAL COURT ERRED WHEN, AFTER DIRECTING A VERDICT IN FAVOR OF THE DEFENDANT ON THE CHARGE OF DUI SECOND OFFENSE, THE TRIAL COURT ALLOWED THE STATE TO AMEND THE CHARGE TO DUI FIRST OFFENSE

STANDARD OF REVIEW

¶ 5. Questions of law are reviewed de novo. Department of Human Servs. v. Gaddis, 730 So.2d 1116, 1117 (Miss.1998).

DISCUSSION

¶ 6. At the close of the State's case, Ostrander moved for a directed verdict. The trial judge denied Ostrander's motion as to the entire case. He held that a first offense D.U.I. is a lesser-included offense of a second offense DUI and allowed the issue to go before the jury on the question of the DUI first offense. To put our discussion in context, a review of the arguments and ruling is necessary:

BY MS. PAMELA CASTLE: Comes now the Defendant at the close of the State's case and moves for a directed verdict in this matter. Motion for a directed verdict is considered in looking at all the evidence most favorable to the State. Mr. Ostrander is charged with a ticket of a second offense. There's been no proof of a prior conviction at this stage of the case, and the State has rested. With that lacking, we would move to dismiss ...

* * * *

BY THE COURT: On that basis, it will be denied. Go ahead.

BY MS. PAMELA CASTLE: Okay. Can I have a specific reasoning as to why that would be denied, Your Honor? If they fail to prove the element at all.

BY THE COURT: Well, the gist of this offense is operating a motor vehicle while impaired. The enhancement provided by the first, second and third offenses concerns punishment. And amendments can be allowed to conform to the evidence and the proof here. And certainly first offense DUI or first conviction DUI is a lesser offense of the second offense, which is a lesser offense of a third or felony offense. So, for that reason the gist of the offense, the failure of the introduction of the evidence of a prior conviction is not fatal here. So, I will deny your motion.

BY MS. PAMELA CASTLE: But they have not moved to amend. They have charged him with a DUI second offense.

BY THE COURT: I denied the motion

. . .

However, this did not end the discussion about Ostrander's motion for a directed verdict. Shortly following the above discussion, yet more discussions were had:

BY THE COURT:—With regard to instructing the jury, there is no proof of a first offense. So, you are correct in the posture of the case at this point. I took your motion for a directed verdict on the entire case, which I denied. With respect to driving

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