Van Wagner v. State, 2010–KA–01631–COA.
| Decision Date | 27 June 2013 |
| Docket Number | No. 2010–KA–01631–COA.,2010–KA–01631–COA. |
| Citation | 116 So.3d 138 |
| Parties | Jerry D. VAN WAGNER, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
George T. Holmes, Leslie S. Lee, Jackson, attorneys for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
EN BANC.
GRIFFIS, P.J., for the Court:
¶ 1. Jerry D. Van Wagner appeals his convictions from the Pearl River County Circuit Court stemming from a one-car motor-vehicle accident on U.S. Highway 59 in Pearl River County, Mississippi, that killed Crystal Brasher. Van Wagner was convicted of Count I, kidnapping, and Count II, aggravated DUI, and sentenced as a habitual offender to twenty-five years for Count I and twenty-five years for Count II, with sentences ordered to run consecutively, all in the custody of the Mississippi Department of Corrections. Van Wagner was also ordered to pay: a $2,500 fine; $2,500 to the Pearl River County Public Defenders Fund; $6,500 to the Mississippi Crime Victims Compensation Fund; and restitution of $2,217. On appeal, Van Wagner raises five points of error: (1) the State offered insufficient evidence to support the conviction of Count I, kidnapping; (2) the jury's verdict on Count II, aggravated DUI, is against the overwhelming weight of the evidence; (3) Van Wagner was prejudiced by a discovery violation; (4) there was no probable cause to administer a blood-alcohol test; and (5) he was illegally sentenced as a habitual offender. We reverse and render Van Wagner's conviction of Count I, kidnapping, because there is insufficient evidence to support the verdict. His convictionand sentence for Count II, aggravated DUI, is affirmed.
FACTS
¶ 2. In April 2009, Van Wagner and Brasher lived at McLeod Park in Hancock County, Mississippi. On April 25, 2009, deputies with the Hancock County Sheriff's Department were patrolling the park when one of the deputies noticed Brasher had bruises on her face. After a conversation with Brasher, the deputy arrested Van Wagner for domestic violence, simple assault and took Van Wagner to jail. Brasher later posted bond for Van Wagner, and Van Wagner was released from jail.
¶ 3. Around the same time, Brasher and Van Wagner were forced to move from McLeod Park and were living with Van Wagner's sister in Perkinston, Mississippi. The day after the alleged incident in McLeod Park, the two packed up their belongings into a red Isuzu Rodeo and headed toward Perkinston on U.S. Highway 59. Shortly after their departure, a one-car accident involving a red Isuzu was reported on U.S. Highway 59.
¶ 4. When law enforcement reached the scene of the accident, they found Brasher thrown from the car, lying on the side of the road. A number of cars traveling on U.S. Highway 59 had already stopped and reached the vehicle to assist the injured passenger.
¶ 5. These witnesses testified that they removed Van Wagner from the driver's seat while Brasher laid on the ground with unlocked chains wrapped around her legs, from her ankles to her knees. Officers who arrived on the scene found the chains already removed and hanging from the car door. Upon searching the debris from the wreck, officers also found two beer cans and the top to a liquor bottle. A state trooper, Trooper James Westbrook, testified that the Isuzu's front tire on the driver's side was flat.
¶ 6. Both Brasher and Van Wagner were taken to Highland Community Hospital in Picayune, Mississippi, where Brasher later died. Upon arriving at the hospital, Trooper Westbrook consulted with the Pearl River County Coroner, who understood that Brasher was driving the vehicle. Van Wagner also told Trooper Westbrook that it was Brasher who had been driving when the accident occurred.
¶ 7. Trooper Westbrook testified that on entering Van Wagner's hospital room, the trooper smelled alcohol. Although a consent form was not produced prior to trial, Trooper Westbrook testified that he received consent from Van Wagner to draw blood for a blood-alcohol test, and then Trooper Westbrook asked a nurse to do so. The blood vials were then sent to the State Crime Laboratory in Jackson, Mississippi. According to the lab results, Van Wagner's blood-alcohol level was .11, which is over the legal limit of .08.
¶ 8. At trial, Master Sergeant Jay Kelly with the Mississippi Department of Public Safety testified as an expert in motor-vehicle-accident reconstruction. In his opinion, Brasher was the passenger at the time of the accident, and Van Wagner was the driver. Master Sergeant Kelly found no indication that the front driver's side tire had experienced a blow-out at the time of the wreck.
¶ 9. Prior to trial, the circuit judge allowed the indictment to be amended to charge Van Wagner as a habitual offender. Van Wagner was convicted of Count I, kidnapping, and Count II, aggravated DUI, and sentenced as a habitual offender to twenty-five years for Count I and twenty-five years for Count II, with the sentences ordered to run consecutively, all in the custody of the Mississippi Department of Corrections. Van Wagner appeals his convictions and sentences.
ANALYSIS
¶ 10. Van Wagner claims there was insufficient evidence to support his conviction, and the verdict was a result of “speculation, guesswork, and conjecture.” Van Wagner argues that the State never developed the kidnapping charge against him and that there was neither actual nor circumstantial evidence of a kidnapping. Van Wagner claims that the trial judge erred when the judge refused Van Wagner's motion for a directed verdict.
¶ 11. When reviewing a motion for a directed verdict, this Court looks to the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the State to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. The State is allowed to prove its case using circumstantial evidence. However, this evidence must be “sufficient to prove the defendant's guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.” Fleming v. State, 604 So.2d 280, 288 (Miss.1992).
¶ 12. Van Wagner asserts the State failed to present sufficient evidence for a reasonable juror to draw a conclusion beyond a reasonable doubt that Van Wagner was guilty of kidnapping using the elements set out in the statute. Mississippi Code Annotated section 97–3–53 (Supp.2011) states:
Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will ... upon conviction shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections.
¶ 13. The State relied on the following facts to support the kidnapping charge: (1) the alleged incident at McLeod Park where Van Wagner was arrested and charged with domestic abuse and (2) the unlocked chains wrapped around Brasher's legs when she was thrown from the vehicle. Van Wagner argues that the State failed to prove the elements of kidnapping beyond a reasonable doubt. We agree.
¶ 14. First, Van Wagner addresses the State's evidence of the alleged dispute in McLeod Park. Van Wagner argues that even if the State proved that he had assaulted Brasher in McLeod Park the day before the accident, this does not prove beyond a reasonable doubt that Brasher was “forcibly seized and confined” or “imprisoned against her will” on the following day. The State failed to show through any witness or evidence that Brasher was forced into the vehicle with Van Wagner. Even when giving all reasonable inferences to the prosecution, the evidence presented does not show that on the following day Brasher was “imprisoned against her will.”
¶ 15. Second, Van Wagner argues that a reasonable juror could have found other reasons for the chains to be wrapped around Brasher's legs such as, “she was merely joking” or “the chains became wrapped around her legs while the vehicle was flipping during the accident.” Van Wagner contends that these hypotheses are consistent with a conclusion of innocence. In addition to these other hypotheses, the State failed to show through the witnesses' testimonies that Brasher was confined to the vehicle against her will. Brasher was not wearing a seatbelt, as evidenced by the fact she was thrown from the vehicle, and the chains around her legs were unlocked and, according to the witnesses, not tightly bound.
¶ 16. The State did not offer any evidence to show that Van Wagner had seized Brasher or that he had confined Brasher against her will. An eyewitness to the accident and Trooper Westbrook both testified that there were no weapons found at the scene of the accident or locks of any kind. Trooper Westbrook testified as follows:
¶ 17. At the close of the State's case-in-chief, the State failed to establish the elements for kidnapping beyond a reasonable doubt; therefore, Van Wagner was entitled to a directed verdict. Accordingly, his kidnapping conviction and sentence is reversed and rendered.
To continue reading
Request your trial