Smith v. State

• Decision Date: 27 February 2007
• Docket Number: No. 2005-KA-01058-COA.,2005-KA-01058-COA.
• Citation: 950 So.2d 1056
• Parties: Michael Mean SMITH, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

950 So.2d 1056

Michael Mean SMITH, Appellant v. STATE of Mississippi, Appellee.

No. 2005-KA-01058-COA.

Court of Appeals of Mississippi.

February 27, 2007.

Edmund J. Phillips, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before KING, C.J., IRVING and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. Michael Mean Smith was found guilty of felony driving under the influence ("DUI"), third offense. Smith appeals. He argues that the evidence was insufficient to find him guilty of DUI third offense and that he was denied a fair trial when the State introduced evidence of prior DUI convictions during the guilt phase of the trial. We reverse and remand for re-sentencing.

FACTS

¶ 2. On November 27, 2004, Smith was traveling on Highway 43 in Leake County, Mississippi. Deputy Sheriffs James D. Moore and Greg Mullin, while on patrol together, passed Smith's vehicle and noticed the vehicle was without a light to illuminate the license plate. The deputies pursued Smith. While in pursuit, they observed the vehicle swerve several times. After the vehicle stopped, Deputy Moore testified that Smith appeared intoxicated and smelled of alcohol. The deputies then took Smith to the Leake County Jail and administered a breath test, resulting in a blood alcohol content reading of .148 percent.

¶ 3. At trial, Deputy Moore and Deputy Mullin testified. At the conclusion of its case-in-chief, the State offered into evidence certified copies of court records concerning two prior DUI convictions. One document was an abstract of a court record that detailed Smith's guilty conviction for DUI first offense on March 10, 2000. The abstract indicated that the offense occurred on February 2, 2000. The second document was a certified copy of a judgment finding Smith guilty for DUI third or subsequent offense on September 3, 2002. However, the judgment did not identify the date when the offense was committed.

¶ 4. At the conclusion of the State's case-in-chief, Smith's counsel made a motion for a directed verdict and alleged that the State failed to meet its burden of proof. This motion was overruled. Thereafter, the jury returned a guilty verdict. Smith was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections and pay a $2,000 fine and all costs of court. Smith filed a motion for a new trial and alleged, among other things, that the sentence given was not supported by the evidence. The motion was denied.

ANALYSIS

I. The evidence was insufficient to find Smith guilty of the crime of DUI third offense.

¶ 5. Smith argues that the State presented insufficient evidence to prove that this was the third time Smith had been convicted of a DUI within five years. Smith claims that there was no evidence presented to the jury that the prior offenses occurred within five years of the most recent offense. The State argues this issue is barred for failure to raise the issue below.

¶ 6. We find that Smith did raise the argument below in his motion for a new trial. Specifically, Smith claimed that "the sentence given the Defendant by the Court in this case was not supported by the evidence." Therefore, the State's argument that this issue is barred for failure to raise it before the trial court is without merit. We now address the sufficiency of the evidence.

¶ 7. In reviewing a challenge of legal sufficiency, this Court must determine whether any rational juror could have found that the State proved each and every element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Christian v. State, 859 So.2d 1068, 1071(¶ 12) (Miss.Ct.App.2003) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 8. Smith was convicted in accordance with Mississippi Code Annotated Section 63-11-30(2)(c) (Supp.2004). This section states in pertinent part that "[e]xcept as otherwise provided in subsection (3), for 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." § 63-11-30(2)(c) (emphasis added). This requires that the State prove two things for each conviction. First, the offense resulted in a conviction for DUI; and second, the offense for which the defendant was convicted occurred within five years of the charged offense. Evidence of both the date the offense was committed, normally the date of the arrest, and that the arrest/offense resulted in a conviction are necessary to sustain a conviction under Section 63-11-30(2)(c).

¶ 9. Evidence was introduced of two previous convictions that Smith received for DUI's. The State introduced an abstract of a conviction on March 10, 2000, for an offense which occurred on February 2, 2000. Since the offense which Smith is currently appealing occurred on November 27, 2004, the February 2, 2000 offense clearly occurred within five years of the charge that he was on trial for as required by the statute.

¶ 10. Smith claims that error was with the second conviction that the State entered into evidence. For the second DUI conviction, the State entered into evidence a judgment dated September 3, 2002, convicting Smith of a DUI. Smith is correct that the judgment does not contain the date of when the offense occurred. Thus, the State failed to introduce evidence that the conviction under this judgment occurred within five years of the offense for which Smith was on trial. The State offered no further evidence of the date on which the second DUI offense occurred. The statute requires that the offenses must have been committed within a period of five years of each other, not the convictions. Proof of the convictions is required by the statute, but without including the date of the offense on the second DUI conviction there is no evidence to show that it occurred within five years of the most recent offense.

¶ 11. The dissent correctly notes that our courts have never addressed this issue. Yet, the dissent relies upon the "vast amount of precedent" to reach its interpretation that only evidence of prior convictions are necessary. We conclude that the dissent's interpretation would require us to ignore the phrase in Section 63-11-30(2)(c) that states "the offenses being committed within a period of five (5) years." We find this conclusion to be contrary to the specific language of the statute, and we must give effect to this language. We interpret this to requires that the State prove that the first and second offenses were "committed" within five years of the third offense. The only way to establish this fact is for the State to introduce evidence of the date the first and second offenses were committed. Only then can we determine whether the "third offense" was committed within five years of the first and second. Evidence of only the conviction, which does not also contain the date the offense was committed, is not sufficient.

¶ 12. The dissent cites several cases, none of which offer any guidance here. In Dove v. State, 912 So.2d 1091, 1093-94 (¶¶ 10-11) (Miss.Ct.App.2005), the Court considered whether Dove's prior convictions should have been allowed into evidence. Dove argued that the evidence unfairly prejudiced the jury. Id. This Court determined that the supreme court had "rejected this claim and noted that the evidence of the defendant's prior DUI convictions was necessary to meet the State's burden of proof and obtain conviction for a felony DUI." Id. at 1094(¶ 11) (citing Weaver v. State, 713 So.2d 860, 865(¶ 31) (Miss.1997)). Thus, it was proper for the trial court to allow proof of prior convictions. Dove, 912 So.2d at 1094(¶ 11) This Court's analysis continued, "[l]ikewise, in the present case, it was necessary for the State to produce evidence of Dove's prior DUI convictions in order to secure a felony DUI conviction, because the prior arrests were elements of the crime with which he was charged." Id. (emphasis added). Thus, Dove is consistent with the majority's ruling here that both the arrest and the conviction are elements of the crime of DUI third offense.

¶ 13. In Atwell v. State, 848 So.2d 190, 191(¶ 2) (Miss.Ct.App.2003), this Court considered a petition for post conviction relief where Atwell pled guilty to felony driving under the influence. This Court looked at the information available and determined that Atwells' convictions for driving while intoxicated in the State of Georgia were sufficient under Miss.Code Ann. § 63-11-30(2)(c) (Rev.1996). Id. at 192(¶ 7). The issue before us here is not the same as in Atwell. This Court's decision in Atwell did not delete an element of the crime, i.e. the "offenses being committed within a period of five (5) years." Miss.Code Ann. § 63-11-30(2)(c) (Rev. 2004).

¶ 14. In Arnold v. State, 809 So.2d 753, 757 (Miss.Ct.App.2002), Arnold argued that there was no evidence of the first or second offenses. This Court, without providing all of the details, decided the evidence was sufficient and held:

Our statute on DUI/third offense reads as follows:

For 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) and shall be imprisoned not less than one (1) year nor more than five (5) years in the State Penitentiary.

Miss.Code Ann. § 63-11-30(2)(c) (Rev. 1996) (emphasis added). We read the statute to say that any third conviction of the crime of driving under the influence under Miss.Code Ann. § 63-11-30(1) (Rev.1996), may be sentenced as a felony charge. There...