E-Filed Document
Oct 21 2016 10:03:56
2016-KM-00606-COA
Pages: 18
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
No. 2016-KM-00606-COA
JOHN PAUL LONGEST
APPELLANT
VS.
STATE OF MISSISSIPPI
APPELLEE
On Appeal From the Circuit Court of Rankin County, Mississippi
Civil Action No. 26,892
BRIEF OF APPELLEE
STATE OF MISSISSIPPI
(ORAL ARGUMENT NOT REQUESTED)
David Ringer (MSB# 5364)
Brenton M. Carter (MSB# 104161)
RINGER LAW FIRM
PO Box 737
125 E. Main St.
Florence, MS 39073
Telephone: (601) 845-7349
Telecopier: (601) 845-6799
[email protected]
[email protected]
Attorneys for Appellee
State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
No. 2016-KM-00606-COA
JOHN PAUL LONGEST
APPELLANT
VS.
STATE OF MISSISSIPPI
APPELLEE
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following-listed persons or entities
have an interest in the outcome of this case. These representations are made in order that the
justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible
disqualification or recusal:
1. John Paul Longest, Appellant
2. Victor W. Carmody, Jr., Counsel for Appellant
3. State of Mississippi, Appellee
4. City of Florence, Mississippi, Arresting Jurisdiction
5. David Ringer, Counsel for Appellee and City of Florence, Mississippi
6. Brenton M. Carter, Counsel for Appellee and City of Florence, Mississippi
7. Jim Hood, Attorney General of the State of Mississippi
8. Jason L. Davis, Counsel of Record for Appellee
9. Abbie Eason Koonce, Counsel of Record for Appellee
10. Hon. Ken Fairly, Trial Court Judge (Municipal Court of the City of Florence,
Mississippi)
11. Hon. Kent McDaniel, Trial Court Judge (County Court of Rankin County, Mississippi)
12. Hon. William E. Chapman III, Appellate Court Judge (Circuit Court of Rankin County,
Mississippi)
Respectfully submitted, this the 21st day of October 2016.
s/ Brenton M. Carter
BRENTON M. CARTER (MSB# 104161)
COUNSEL FOR APPELLEE
i
TABLE OF CONTENTS
Certificate of Interested Persons…………………………………………………………………...i
Table of Contents………………………………………………………………………………….ii
Table of Cases……………………………………………………………………………………iii
Statement of the Issues……………………………………………………………………………1
Statement of Assignment………………………………………………………………………….1
Statement of the Case……………………………………………………………………………...1
A.
Nature of the Case…………………………………………………………………1
B.
Course of the Proceedings and Disposition in the Court Below…………………..1
C.
Statement of Facts…………………………………………………………………2
Summary of the Argument………………………………………………………………………...8
Argument………………………………………………………………………………………….8
A.
Standard of Review………………………………………………………………..8
B.
Any Rational Trier of Fact Could Have Found Longest Guilty of DUI…………..9
C.
The Court Did Take Into Account Mrs. Longest’s Testimony Regarding
the Roadworthiness of the Vehicle, but the State Was Not Required to
Show That There Was No Mistake……………………………………………....11
D.
Longest Failed to Show That He Had Any Injuries That Should Have
Been Considered By the Trial Court……………………………………………..12
Conclusion……………………………………………………………………………………….13
Certificate of Service………………………………………………………………………….…14
ii
TABLE OF CASES
Carlson v. City of Ridgeland, 131 So.3d 1220 (Miss. Ct. App. 2013)………………………9
Nolan v. State, 182 So.3d 484 (Miss. Ct. App. 2016)……………………………………..9,11
Schlepphorst v. State, 2014-KM-01594-COA (Miss. Ct. App. 2016)……………………..10
Young v. State, 119 So.3d 309 (Miss. 2013)……………………………………………….9, 10
iii
STATEMENT OF THE ISSUES
The State is satisfied with the statement of the issues submitted by Appellant, and, as
such, consistent with M.R.A.P. 28(c), the State does not submit its own statement of the issues.
STATEMENT OF ASSIGNMENT
The Supreme Court has already assigned this case to the Court of Appeals.
STATEMENT OF THE CASE
A.
Nature of the Case
This is a criminal case in which John Paul Longest (“Longest”) has appealed his
conviction of DUI-First Offense.
B.
Course of the Proceedings and Disposition in the Court Below
Longest was charged with driving under the influence of an intoxicating liquor and
careless driving (among other charges) and was summoned to appear before the City of Florence
Municipal Court. (R. at 25-26) Longest entered a plea of no contest in the municipal court, and
the municipal court entered a judgment of conviction against Longest on both charges. (Tr. 86:1;
R. vol. 2 at 10)
Longest appealed the municipal court’s judgment to the County Court of Rankin County.
(R. vol. 2 at 8). The county court held a trial de novo and entered a judgment of guilty beyond a
reasonable doubt on the charges of careless driving and DUI. (R. vol. 2 at 53-55) Longest then
filed a motion for reconsideration. (R. vol. 2 at 61-65) The county court denied that motion. (R.
vol. 2 at 66)
Longest then appealed his conviction and the denial of his motion for reconsideration to
the Circuit Court of Rankin County. (R. vol. 2 at 67) In his brief submitted to the circuit court,
Longest raised the following as errors he asserted the county court committed: (1) “[t]he [c]ourt
1
failed to take account of the defense witness’ unrebutted testimony regarding the roadworthiness
of the vehicle driven in this incident or the history of injury of the [d]efendant” and (2) “[t]he
verdict on the charge of driving under the influence is against the overwhelming weight of the
evidence, and to allow it to stand will sanction an unconscionable injustice.” (R. vol. 1 at 3) The
circuit court overruled those assignments of errors and entered a judgment that affirmed
Longest’s conviction of careless driving and DUI. (R. vol. 1 at 59-60) Longest appeals the
circuit court’s judgment. (R. vol. 1 at 61)
C.
Statement of Facts
Patrolman Kesha McBay of the City of Florence Police Department encountered a Ford
pickup that was stopped partially on the shoulder of Erlich Road in Florence. (Tr. 6:3-6) McBay
testified that the driver’s door of the pickup was open, but that when she was approaching the
pickup in her patrol car, the driver’s door closed and the vehicle began traveling east on Erlich
Road towards U.S. Hwy. 49. (Tr. 6:3-10) The vehicle then got on Hwy. 49, going southbound.
(Tr. 6:10-11)
McBay testified that after it got on Hwy 49, the pickup “sped up very rapidly” and that it
“was swerving across the fog line to the right several times. It was in the right-hand lane of
traffic on 49 southbound, crossed the right-hand fog line several times and then crossed the
center line several times.” (Tr. 6:12-18) McBay had to speed up to catch the pickup. (Tr.6:287:2) She again testified that “[h]e moved towards the lane that – or towards the vehicle that he
was going around in the right lane, moved towards that vehicle again as well and then moved
back towards the left lane as he was in the right lane. He went around that lane – or around that
vehicle, and that’s when I initiated the blue lights.” (Tr. 7:3-8)
After McBay turned on her blue lights, the pickup moved over to the right lane, traveled
some more, eventually pulled to the shoulder of the road and stopped. (Tr. 7:17-20) The driver
2
then got out of the pickup at the same time McBay was exiting her patrol car. (Tr. 8:11-12)
McBay testified that as the driver was exiting the pickup, “he was holding on to the door of the
pickup truck” and that he then “stumbled out of the vehicle and actually stumbled into the lefthand lane of traffic.” (Tr. 8:11-15) McBay told the trial court that the driver almost fell into the
highway, but that “[h]e didn’t fall completely. He stumbled and almost fell down, but he was in
the lane of traffic. There wasn’t a vehicle coming, thank God.” (Tr. 8:19) McBay at this point
radioed Sergeant Justin Holifield for assistance. (Tr. 8:22-25) McBay ordered the driver to get
back into his vehicle, an order that was heeded.1 (Tr. 9:14-15; 9:22-23)
McBay thereafter approached the vehicle, her testimony in this regarding being as
follows:
I made a driver’s side approach. I knocked on the window several times. The
window was up. I knocked on the window several times. He [the driver] said
something that I could not understand.
I knocked again with my flashlight and instructed him to roll the window down.
He mumbled something that I could not hear. As he was doing so, he – when he
got out of the vehicle he was trying to reach for his wallet.
When he got back in the vehicle he was still trying to get his wallet out of his
pocket and he could not do so. He was fumbling with his wallet trying to get it out
of his pocket.
(Tr. 10:6-17) McBay further testified as follows:
When he [Longest] rolled the window down I immediately smelled a very strong
odor of intoxicating beverage. I then asked him how many – if he had had
anything to drink and how many he’d had to drink, and he advised me he had had
three beers on the way from – driving in from Vicksburg, that he had been driving
in from Louisiana all day and he had had three beers driving in from Vicksburg.
(Tr. 10:26-11:5)
McBay stated that Longest’s “speech was extremely slurred. I was having a hard time
understanding him. I was having to ask him to repeat things.” (Tr. 11:16-18) She testified that
1
McBay would later identify the driver as John Paul Longest. (Tr. 5:13-20)
3
Longest’s eyes were bloodshot. (Tr. 11:18) McBay asked Longest to turn the pickup off but that
he could not turn it off, as “[h]e kept fumbling and missing the ignition. He actually cut the
windshield wipers on high when I instructed him to cut the vehicle off.” (Tr. 11:18-24)
After Longest managed to turn the pickup off, McBay asked him if there were any knives
in the vehicle. (Tr. 12:24-26) Longest advised that there were several knives in the pickup, and
he began to reach for a knife. (Tr. 12:26-27) McBay told Longest to leave the knife alone, but
Longest kept reaching for it. (Tr. 12:28-13:11) Longest got his hand stuck in his pocket and was
having trouble getting it and the knife out. (Tr. 13:11-13) Eventually, Longest got the knife out
and handed it to McBay. (Tr. 13:15-16)
It was at this point that McBay asked Longest to get out of the pickup. (Tr. 13:16-17)
Longest got out of the pickup. (Tr. 13:20) His pants were not done, and he was exposing himself,
though, when asked, Longest stated he had no idea that his pants were not fastened. (Tr. 13:2123) Although he fumbled a bit in doing so, Longest got his pants zipped. (Tr. 13:23-14:5)
McBay asked Longest to walk to the back of the pickup. (Tr. 14:23-24) In doing so,
Longest held onto the pickup. (Tr. 14:24-15:3) McBay testified that she did not have a need to
hold onto the truck when she walked along that same surface, and that she did not have any
trouble maintaining her balance. (Tr. 15:3-12)
At the back of the pickup, McBay asked Longest again about the number of beers he had
consumed. (Tr. 15:15-16) Longest replied that he had consumed four. (Tr. 15:20-21) Longest
stated that he knew drinking and driving was a very bad thing and that he knew three beers
would get him a DUI. (Tr. 16-20) Longest stated that his wife had told him not to be drinking
and driving. (Tr. 15:22-23) McBay noted that during this conversation, Longest’s speech was
slurred and that she was having difficulty understanding him. (Tr. 16:10-15) Longest was asked
to sit on the bumper of the pickup, with McBay thereafter asking him to move to the center of the
4
bumper, instead of sitting on the side of the bumper. (Tr. 17:21-23) McBay asked Longest
several times to move to the center, and though he did comply, he stumbled several times in
trying to move. (Tr. 17:22-25)
At this point, Sergeant Holifield, who had arrived on the scene after McBay requested
assistance, began administering field sobriety testing. (Tr. 18:15-16) McBay testified that
Longest was swaying and stumbling during a part of this testing. (Tr. 19:1-2) She further
testified that Longest had difficulty standing, and would lean on the pickup. (Tr. 19:3-9) During
the heel-to-toe testing, Longest fell and stumbled towards McBay, and McBay had to reach out
and catch Longest. (Tr. 20:4-12)
McBay stated in her testimony that the “crossing over the fog line several times” and
“crossing over the center lane” were reasons for why she would later cite the driver for careless
driving. (Tr. 7:9-12) Moreover, McBay testified that Longest’s driving over the fog line several
times, his slurred speech, his stumbling, his poor balance, and the smell of intoxicating beverage,
all caused her to form an opinion that Longest had been driving under the influence of
intoxicating liquor. (Tr. 21:21-22:5)
Holifield testified that when he arrived on the scene, he first patted Longest down for
weapons and that while doing so, Holifield could smell the odor of intoxicating beverage
emanating from Longest, and he could smell it coming from his breath when Longest spoke. (Tr.
48:25-27; 48:29-49:1) Longest told Holifield that he had consumed four beers. (Tr. 48:29)
Holifield noted that Longest’s eyes were glassy and red. (Tr. 49:7-8) He overheard Longest tell
McBay that “he knew he had had too much to drink to be driving and that three beers would get
him a DUI.” (Tr. 49:8-10) Holifield tried to get Longest to sit on the rear bumper of the pickup
but that Longest seemed to have much trouble understanding where Holifield wanted him to sit.
(Tr. 50:3:5) Holifield performed HGN testing, which Holifield found remarkable as Longest
5
“showed clues of impairment as far as lack of smooth pursuit, distinct and sustained nystagmus
at maximum deviation, the onset of nystagmus prior to 45 degrees, and he also showed vertical
nystagmus.” (Tr. 50:20-23) Holifield testified that he attempted to have Longest do the walkand-turn test, but that Longest was so unsteady on his feet that Holifield abandoned the test, for
fear that Longest would hurt himself. (Tr. 51:6-13) Holifield opined that Longest was too
impaired by intoxicating beverage to be operating a motor vehicle. (Tr. 51:19-20)
Longest called his wife Lisa Longest as a witness. Mrs. Longest testified that Longest’s
right knee had been injured at some point. (Tr. 63:5-27) She also testified that for the alleged
knee pain, the only medication that Longest took was ibuprofen. (Tr. 64:16-17) Mrs. Longest
opined that her husband was “hard of hearing[.]” (Tr. 64:20-21) She testified that Longest works
around petroleum products. (Tr. 65:3-7) When asked by Longest’s counsel if these petroleum
products cause Longest’s eyes to turn red, her response was in the affirmative. (Tr. 65:9-14) Mrs.
Longest stated that she had driven the pickup Longest was driving the day he was stopped, and
that the driving characteristics of the pickup were that it “drifted everywhere” and “floated
everywhere, all over the place.” (Tr. 67:13-21) She testified that Longest had a habit of
unbuttoning and unzipping his pants if he was riding in a vehicle for any distance or period of
time. (Tr. 71:11-14)
The trial court noted Holifield’s testimony regarding the number of clues on the HGN test
he administered to Longest, noting that those clues were not used in the trial court’s
consideration of guilt of DUI, but that same was used in deliberation as to whether there was
probable cause to conduct a DUI investigation of Longest. (Tr. 79:28-80:3) The trial court found
that there was probable cause to investigate Longest further for DUI. (Tr. 80:4-6)
The trial judge noted that the video of the stop was consistent with the testimony of
McBay and Holifield. (Tr. 80:18-28) The trial court noted that the video was “very confirmatory
6
of their earlier testimony about Mr. Longest’s actions and so forth out there on the roadside and
their reasons for believing that he should not have been driving, that he was under the influence.”
(Tr. 80:23-28) In rendering his verdict, the trial judge stated:
After having watched the video, even though he may have a problem with his
knee, from what I saw, knee problems were not the cause of his problem. Alcohol
problems were the cause of his problem. When he waked out into that roadway, it
didn’t look like his knee gave away. It looks like his – whatever you call it that
keeps you upright – that’s what gave away on him because he actually staggered
out into the highway with a serious right-hand lean.
There was, just as the officer testified, repeated commands about the knife: don’t
get the knife, leave it there, all that sort of stuff. So he was obviously having
trouble understanding her or hearing her, whichever it was.
The video verifies that he turned on the windshield wipers instead of turning off
the ignition. Again, that doesn’t have anything to do with his knee or anything
else.
But I think the clearest indication that he was under the influence was not just
staggering out into the roadway, but he never turned loose of that truck. He held
on to that truck all the way down the side, around the back. He often had to repeat
his answers to them. They were having trouble understanding him. He admitted
he drank at least three or four beers. And I wouldn’t doubt if the number is
actually a bit higher than that, but I’m willing to take his testimony on the
roadside that he had at least that many.
He leaned on the tailgate when he got back to the truck. He didn’t sit down where
they directed him to despite multiple commands to do that. When he sat down, did
the HGN and then when he got up, I didn’t see the trailer hitches – the balls
having anything to do with him stumbling. When he got up he did that same righthand stagger that he had done when he got out of the truck.
And then during the walk-and-turn he was so seriously unbalanced. When he was
in the instruction phase his knee wasn’t giving him any trouble, but when he had
to start trying to move he had definite problems, and I think the officers were kind
to say – I think Officer Holifield just used the euphemistic “unsteady on his feet”.
Well, he was more than unsteady on his feet, and he admitted he was too drunk to
be driving.
(Tr. 83:17-85:6)
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The trial court found that the proof was “overwhelming beyond any reasonable doubt”
and rendered a verdict of guilty as to the DUI charge. (Tr. 85:19-25) As to careless driving,
Longest was also found guilty beyond reasonable doubt. (Tr. 82:3-21)
SUMMARY OF THE ARGUMENT
Longest argues that the trial court’s verdict on the DUI charge is “so contrary to the
overwhelming weight of the evidence that to allow it to stand will sanction an unconscionable
injustice.” This Court should reject Longest’s argument. That which was presented to the trial
court, as noted by the trial judge, was substantial, credible, and reasonable evidence to find
Longest guilty. The fact that the trial court found that the accused’s wife’s testimony did not
create reasonable doubt in the face of this substantial, credible, and reasonable evidence is not
sufficient reason to reverse the judgment of guilt, given the deference that is to be given to the
trial judge’s findings in a bench trial, and given that the record reflects that the trial court
considered Longest’s claims related to his vehicle being allegedly not roadworthy, and also given
that the record reflects that the trial court considered Longest’s claims that he had a knee injury.
The overwhelming weight of the evidence in favor of a finding that Longest was driving under
the influence outweighed both of these claims. For the foregoing reasons, the judgment should be
affirmed.
ARGUMENT
A.
Standard of Review
The Court of Appeals has noted the following standard of appellate review in DUI bench
trials:
In a bench trial, the trial judge is the jury for all purposes of resolving issues of
fact. As such, a judge sitting without a jury is accorded the same deference with
regard to his findings as a chancellor, and his findings are safe on appeal where
they are supported by substantial, credible, and reasonable evidence.
8
As for determining whether the evidence the county court judge based his
decision upon was sufficient, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
Carlson v. City of Ridgeland, 131 So.3d 1220,1223-24 (¶¶ 13-14)(Miss. Ct. App. 2013)(citations
and quotations omitted).
B.
Any Rational Trier of Fact Could Have Found Longest Guilty of DUI
Therefore, the issue before this Court is whether the trial court erred in finding that there
was sufficient evidence to find Longest guilty beyond a reasonable doubt of the elements of
common law DUI. “‘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.’” Nolan v. State, 182 So.3d 484, 488-89 (¶ 8)(Miss. Ct. App.
2016)(alterations in original)(quoting Young v. State, 119 So.3d 309, 315 (¶ 19)(Miss. 2013)).
In Nolan, this Court upheld a DUI conviction by the county court where the arresting
officer testified that he witnessed Nolan’s vehicle was following too closely and swerved into the
right fog line. Id. at 489 (¶ 9). Additionally, the officer testified that he smelled alcohol coming
from Nolan’s breath and vehicle, and that Nolan’s eyes were glassy and bloodshot and that
Nolan had admitted to drinking earlier. Id. Moreover, during the field sobriety tests, “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.” Id.
The officer also testified that, “Nolan put his foot down for balance, swayed while on one leg,
and used his arms for balance.” Id. Furthermore, video of dash-camera footage of all of this was
introduced into evidence, and the judge found the officer’s testimony consistent with the video.
Id. (¶ 10).
9
In Young, the Supreme Court found that there was sufficient evidence to support a
conviction for DUI where the state presented testimony that: (1) the accused’s car had several
empty beer cans (along with a half-full can); (2) the accused smelled of alcohol and urinated on
himself; and (3) failed field sobriety tests. 119 So. 3d at 316 (¶ 21). In Schlepphorst v. State, this
Court affirmed a DUI conviction where the state presented testimony via law enforcement
officers that the smell of an intoxicating beverage was coming from inside the defendant’s car
and that the defendant – who admitted to drinking wine and feeling the effects of it – was
slurring his speech. 2014-KM-01594-COA (¶ 14) (Miss. Ct. App. 2016), cert. denied, via Order
of Miss. Sup. Ct., Oct. 6, 2016. Schlepphorst had been stopped after driving recklessly through a
checkpoint. Id. He challenged the accuracy of field sobriety testing, blaming alleged knee
problems and glaucoma for his having failed those tests. Id (¶ 15). Based on the testimony of an
expert medical witness, the trial court did not consider the field sobriety testing or the
defendant’s physical instability. Id. Nevertheless, the trial court found that the elements of
common law DUI had been established, and this Court affirmed the conviction, finding that there
was sufficient evidence (the reckless driving, the admission of drinking wine and feeling the
effects of it, and the slurred speech) supporting same. Id.
In the instant case, the State put forward testimony/evidence, corroborated by video, that
Longest:
a.
Was observed swerving between lanes. (Tr. 6:12-18; Tr. 7:3-8)
b.
Stumbled out into the highway when he existed his vehicle. (Tr. 8:11-15)
c.
Admitted to consuming alcohol while driving from Vicksburg to Florence.
(Tr.10:26-11:5)
d.
Smelled of alcohol. (Tr. 48:25-27; 48:29-49:1)
e.
Had bloodshot eyes. (Tr. 11:18)
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f.
Had difficulty turning off the vehicle when instructed by the officer to do so, and
instead turned on his windshield wipers. (Tr. 11:18-24)
g.
Was so unsteady that the officer discontinued the field sobriety test out of concern
for Longest’s safety. (Tr. 51:6-13)
h.
Had his pants unzipped, was exposing himself, and did not realize it. (Tr. 13:2123)
The county court considered this, along with the video, all of which is substantial,
reasonable, and credible evidence, and found Longest guilty. In viewing this evidence in the light
most favorable to the State, it was reasonable for the county court to have found Longest guilty,
in light of the holdings of Nolan, Young, and Schlepphorst. Longest’s claim that the verdict was
against the overwhelming weight of the evidence is not supported by the record. Therefore, the
judgment of conviction should be affirmed.
C.
The Court Did Take Into Account Mrs. Longest’s Testimony Regarding the
Roadworthiness of the Vehicle, but the State Was Not Required to Show That There
Was No Mistake
In his brief, Longest raised as an issue an alleged failure by the county court to consider
testimony regarding the roadworthiness of his vehicle. Regarding this issue, Longest simply
noted that his wife testified that Longest “was guilty of putting an un-roadworthy vehicle on the
road and offered nothing in regards to his alleged impairment. In fact, the state failed to show
how an un-roadworthy vehicle could not be mistaken for a vehicle driven by an impaired driver.”
Br. of Appellant at 10.
The burden placed on the State was to show that Longest operated his vehicle under
circumstances showing his ability to operate the vehicle was impaired by the consumption of
alcohol. See Nolan, 182 So.3d at 488-89 (¶ 8). The State was not required to show “how an unroadworthy vehicle could not be mistaken for a vehicle driven by an impaired driver.” On this
point, it is noteworthy that there was no expert testimony rendered in behalf of Longest on the
issue of the roadworthiness of the vehicle; all that Longest offered was the testimony of his wife
11
(who did not profess to be an expert on the roadworthiness of vehicles) and a copy of an invoice
showing that some vehicle repairs were allegedly done.
The foregoing notwithstanding, the county court did address this issue. Judge McDaniel
noted that the video showed that Longest was driving the vehicle in an unsafe manner and that
this might be attributable – in part – to the alleged mechanical issues afflicting the vehicle. (Tr.
81:8-82:21) In any event, the trial court found that the manner in which the vehicle was being
operated – even if caused by the claimed mechanical problems – constituted careless driving.
This finding notwithstanding, there is sufficient, credible, and reasonable evidence – as
noted above – that Longest was guilty of common law DUI. Accordingly, the lower court’s
judgment should be affirmed.
D.
Longest Failed to Show That He Had Any Injuries That Should Have Been
Considered By the Trial Court
Longest asserts that the lower court erred in not taking into account his alleged knee
injury. This claim of error should be overruled for two reasons. First, the only thing in the record
as to this alleged knee injury was Mrs. Longest’s testimony that Longest had hurt his knee, for
which the only medication he takes is ibuprofen. (Tr. 63:5-64:19) While the county court did
find Mrs. Longest’s testimony credible, there is nothing in the record to establish that this alleged
injury had any bearing upon Longest’s ability to walk or operate a motor vehicle. Second, the
county court noted the alleged knee injury, stating that:
even though [Longest] may have a problem with his knee, from what I saw, knee
problems were not the cause of his problem. Alcohol problems were the cause of
his problem. When he waked out into that roadway, it didn’t look like his knee
gave away. It looks like his – whatever you call it that keeps you upright – that’s
what gave away on him because he actually staggered out into the highway with a
serious right-hand lean.
(Tr. 83:17-26) The trial court also noted that during the instruction phase preceding the walkand-turn test, Longest was not having any knee problems. (Tr. 84:28-85:1) Thus, contrary to
12
Longest’s assertions, his claim of injury was considered. The trial court property overruled that
claim. Accordingly, Longest’s guilty conviction should stand.
CONCLUSION
The judgment of conviction of Longest should be affirmed. There was substantial,
credible, and reasonable evidence to find Longest guilty of common law DUI. Longest was
observed swerving his vehicle on the road. He smelled of alcohol. He was unsteady on his feet.
He had bloodshot eyes. He had problems obeying simple directions (such as turning on
windshield wipers when asked to turn off his vehicle). He was exposing himself and did not even
realize he was exposing himself. The trial court did not err in finding him guilty based on this
evidence. Additionally, Longest’s claims that alleged mechanical defects with his vehicle and
alleged knee problems were not considered by the trial court are belied by the record.
Accordingly, the judgment of the lower court should be affirmed.
Respectfully submitted,
STATE OF MISSISSIPPI, APPELLEE
By:
s/ Brenton M. Carter
DAVID RINGER (MSB# 5364)
BRENTON M. CARTER (MSB# 104161)
RINGER LAW FIRM
PO Box 737
125 E. Main St.
Florence, MS 39073
Telephone: (601) 845-7349
Telecopier: (601) 845-6799
[email protected]
[email protected]
Attorneys for Appellee
State of Mississippi
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CERTIFICATE OF SERVICE
I, Brenton M. Carter, an attorney for Appellee, do hereby certify that on this day I
electronically filed the foregoing document with the Clerk of Court using the MEC system,
which sent notification of such filing to the following:
V.W. Carmody, Jr.
Counsel for Appellant
Jim Hood
Counsel for Appellee
Jason L. Davis
Counsel for Appellee
Abbie Eason Koonce
Counsel for Appellee
Further, I hereby certify that I have mailed by United States Postal Service the document
to the following non-MEC participants:
Hon. William E. Chapman III
Circuit Judge
20th Circuit District
PO Box 1626
Canton, MS 39046
Hon. Kent McDaniel
Rankin County Court Judge
PO Drawer 1599
Brandon, MS 39043
Hon. Ken Fairly
Municipal Judge
City of Florence, Miss.
PO Box 71
Brandon, MS 39043
This the 21st day of October 2016.
s/ Brenton M. Carter
BRENTON M. CARTER (MSB# 104161)
COUNSEL FOR APPELLEE
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