author: BARNES, J., CARLTON, J.,

text:
    Mary Reed EVANS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KM-00443-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2008.
    Rehearing Denied May 19, 2009.

      Joseph Joshua Stevens, Attorney for Appellant.
    Office of the Attorney General by Ladonna C. Holland, Attorney for Appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. The Justice Court of Monroe County convicted Mary Reed Evans of driving under the influence (DUI), first offense. Evans appealed to the Circuit Court of Monroe County. After a trial de novo without a jury, the circuit court came to the same result. Evans now appeals to this Court. We reverse and remand to the circuit court for a new trial.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. Late in the afternoon of July 19, 2006, Evans, who lives in Prairie, Mississippi, drove to pick up her friend, Julann Callender, who lives in Aberdeen, Mississippi. The two women traveled to Tupelo to shop at Sam’s Club. Once they finished shopping, they went to Woody’s, a restaurant and lounge in Tupelo. Between the hours of approximately 6:00 p.m. and 11:00 p.m., they had dinner. Evans said she drank four Bud Lights. Both women claim the only alcohol they consumed that evening was at Woody’s. They left the restaurant and drove back to Aberdeen. At approximately midnight, Evans dropped Callender off at her home. Cal-lender testified that she offered Evans a beer as she was leaving, which Evans accepted. Callender claimed that Evans did not appear to be intoxicated.

¶ 3. Evans then proceeded home to Prairie along Highway 382. There had been a severe storm that evening; so trees and power lines were down in the area. Approximately two miles from Evans’s home, Mississippi Highway Patrolman Andrew Sisk had the eastbound lane of Highway 382 partially blocked as emergency vehicles were cleaning the debris from the highway. Officer Sisk was inside his patrol car with his headlights and blue lights on. He testified he was attempting to redirect traffic to a county road. When Evans came upon this area in the westbound lane, she proceeded slowly, but she did not stop her vehicle. Officer Sisk, wanting her to stop, tried to get Evans’s attention by cutting his spotlight on and shining it in her car, but to no avail. Feeling she should have known to stop, Officer Sisk pulled Evans over approximately one-half mile from the area. When he approached her vehicle, he noticed the smell of alcohol emanating from Evans’s vehicle. He saw an open beer can on the console (the one Callender had given Evans); however, Evans testified she had not consumed any of it. Officer Sisk also saw three or four unopened beers in Evans’s backseat. When queried about whether she had had any alcohol to drink that evening, Evans admitted to Officer Sisk she had been drinking beer at Woody’s that evening. He proceeded to administer an alcohol test with a portable Intoxilyzer device, which detected the presence of alcohol on her breath, but he did not conduct any field sobriety tests. Evans was then arrested and taken to the Monroe County Sheriffs Office, where she agreed to have a blood alcohol concentration (BAC) test on the Intoxilyzer 8000 machine.

¶ 4. However, before Evans and Officer Sisk departed for the sheriffs office, they had to wait for a vwecker from Aberdeen to tow Evans’s car, as this was standard operating procedure. Evans’s DUI ticket shows the time of the stop as 12:50 a.m. By the time Evans completed the paperwork at the sheriffs office and the BAC test was administered, it was 1:58 a.m. After a delay of one hour and eight minutes from the time she was driving and pulled over to the time of the test, Evans’s BAC was determined to be .09%, or .01% over the legal limit of .08%, pursuant to Mississippi Code Annotated section 63-ll-30(l)(c) (Supp.2008). Therefore, she was charged with DUI, first offense.

¶ 5. The Justice Court of Monroe County convicted Evans of DUI. She appealed the conviction to the Circuit Court of Monroe County, which held a trial de novo without a jury, finding Evans guilty. Prior to the trial, the State moved in li-mine to exclude the testimony of the defense’s expert witness, Dr. A.K. Rosenhan, who was to testify regarding the absorption rate of alcohol. The State argued that since this case is a DUI per se violation, the defense is prohibited from introducing evidence of alcohol consumption. The State continued that in order for the expert to formulate an opinion about Evans’s absorption rate, evidence would have to be introduced about her consumption of alcohol, which the State claimed is prohibited by Porter v. State, 749 So.2d 250 (Miss.Ct.App.1999). Therefore, the State moved to prohibit the introduction of any evidence from either expert or lay witnesses who would testify as to the manner or timing of her consumption of alcohol. After the defense argued Porter was inapplicable to the present case, the circuit court judge granted the State’s motion. However, Dr. Rosenhan was allowed to proffer his testimony for the sole purpose of creating a record. Evans now appeals to this Court.

ANALYSIS

¶ 6. Evans raises two issues: (1) whether the trial court erred in excluding the expert testimony of Dr. Rosenhan, and (2) whether Porter precludes testimony relating to the amount and timing of the consumption of alcohol that would provide the necessary basis for the expert’s opinion on the possible BAC of Evans at the time she was operating her vehicle. We shall discuss these issues together as they are interlinked — Porter was cited as the basis for the trial court’s exclusion of the consumption of alcohol evidence and Dr. Ro-senhan’s expert testimony.

¶ 7. Evans argues that the circuit court’s grant of the State’s motion in limine based on Porter was in error; thus, the circuit court and the State misinterpreted Porter. The State contends that the evidence was properly excluded under Porter. The State also argues that even if the circuit court misapplied PoHer, the evidence and testimony were properly excluded because Dr. Rosenhan was not qualified as an expert under Mississippi Rule of Evidence 702.

¶ 8. The standard of review for the admission or exclusion of evidence is an abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003). Further, “the admission of expert testimony is within the sound discretion of the trial judge. Therefore, the decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Id. (internal citations omitted).

¶ 9. The central issue in this case is whether Evans was illegally intoxicated at the time she was operating her vehicle when driving home from Tupelo. Officer Sisk pulled her over at 12:50 a.m., but Evans’s BAC was not tested on the Intoxi-lyzer 8000 until 1:58 a.m., resulting in an approximate one-hour delay since the time she was pulled over. The machine determined Evans’s BAC to be .09%, or .01% over the legal limit. Dr. Rosenhan proffered testimony on retrograde extrapolation, which has been explained as a scientific method of making a determination of the BAC at a particular point in time by “predicting an earlier unknown value by calculating a known later value with a series of generally used average values, and projecting that result back in time.” Smith v. State, 942 So.2d 808, 312(¶ 8) (Miss.Ct.App.2006). Dr. Rosenhan described it as a “mathematical relationship” related to whether Evans was in the absorption or metabolism phase of ethanol ingestion. The defense sought to establish, through Dr. Rosenhan’s testimony, that from the time she was stopped by Officer Sisk until the time of the test, Evans’s BAC was rising, as she was in the absorption phase of ethanol ingestion. He based this opinion that Evans was in the absorption phase on her body weight, the time frame of ethanol ingestion, and the amount of ethanol consumed — four twelve-ounce Bud Lights. Evans was within a few minutes from her house when she was pulled over; so Dr. Rosenhan opined her BAC would not have risen over the legal limit of .08% BAC before she arrived home. During cross-examination, the State pointed out the fact that Evans first blew a BAC of .104 and two minutes later blew a .099, indicating her BAC was decreasing at the time of the test. On redirect, however, Dr. Rosenhan countered that it is not unusual for small variations in the test results such as these, and one could not draw any conclusions concerning retrograde extrapolation from them.

¶ 10. We find the circuit court judge erred in excluding evidence of Evans’s alcohol consumption and the expert testimony of Dr. Rosenhan. His testimony was relevant as he would have offered his expert opinion regarding Evans’s BAC at the time she was pulled over by Officer Sisk. This evidence is especially relevant here, where there was approximately a one-hour delay between the time she was pulled over and the time she was tested, and her BAC level was only .01% over the legal limit.

¶ 11. Furthermore, we find the circuit court misapplied Porter as the basis for excluding the evidence. The circuit court judge accepted the argument by the State that the defense is prohibited from introducing evidence from either expert or lay witnesses regarding alcohol consumption because this is a “DUI per se case” under Porter, and there was an admissible Intox-ilyzer test result that showed Evans’s BAC to be over the legal limit. The State explained, and the circuit court agreed, that if this evidence on alcohol consumption is inadmissible, Dr. Rosenhan’s expert testimony then becomes irrelevant, because in order for the expert to formulate his opinion about Evans’s BAC at the time she was pulled over, evidence on consumption would have to be admitted to apply his retrograde-extrapolation formula to the facts of the case.

¶ 12. We agree with Evans that Porter is not controlling in the instant case. In Potter, after being arrested, the defendant submitted to an Intoxilyzer analysis of his BAC at the police station. His BAC was determined to be .164%. Potter, 749 So.2d at 253(¶ 5). There was no issue regarding a lapse of time between his arrest and the test. Procedurally, at trial the circuit court granted the State’s motion in limine, and this Court found no error. Id. at 255(¶ 15). Porter sought to present evidence that would rebut what he termed “the ‘presumption’ that his blood alcohol content of .164% impaired his ability to operate his vehicle.” Id. at 254-55(¶ 13).

¶ 13. In order to understand Potter’s holding in light of our current DUI laws, we must analyze the DUI statute’s legislative history. As the Porter court explained, since an amendment to the DUI statutes in 1983, it is a “per se” violation to operate a vehicle when the defendant’s BAC, as shown through a chemical analysis, is over the legal limit, which at that time was .10%. Id. at 255(¶ 14) (citing Fisher v. City of Eupora, 587 So.2d 878, 888 (Miss.1991)). Therefore, this Court stated that the supreme court explained in Fisher that since 1983, there is no longer a statutory “presumption” that a person is intoxicated if he is over the legal limit for BAC, but instead it is a “per se” violation under section 63-11-30. Id. This is the “presumption” that Porter was attempting to rebut. Further, in 1991, section 63 — 11— 39(2) (1972), a statute allowing the introduction of evidence on whether or not a person was under the influence of intoxicating liquor which impaired a person’s ability to operate a motor vehicle, was repealed. Id. at 255(¶ 15). Because of this repeal, this Court found Porter’s argument nullified, as he could not enter evidence that he was not impaired because he was prosecuted for a DUI per se violation, and not impairment. Id.

¶ 14. Currently, the pertinent Mississippi DUI statute provides in part that it is unlawful for any person to drive or operate a vehicle in Mississippi if he is: (a) under the influence of intoxicating liquor; (b) under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle; or (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons at or above the legal age to purchase alcoholic beverages in Mississippi. Miss.Code Ann. § 63-ll-30(l)(a)-(c). Section 63-ll-30(l)(a) is referred to as “common law DUI,” and it is distinguishable from section 63 — 11—30(l)(c), which is referred to as “per se DUI.” “Common law DUI” is often used to prosecute defendants when BAC test results are unavailable, or the defendant’s BAC tests are under the legal limit, but there is sufficient evidence to prove the defendant’s ability to operate a vehicle was impaired by the consumption of alcohol. Leuer, 744 So.2d at 268 (¶¶ 6-7). This evidence of impairment may include slurred speech, bloodshot eyes, or erratic driving. However, in Evans’s case, we do not have any such “impairment” evidence, only her BAC level. Thus, Evans was not prosecuted under the common law DUI statute, but for a per se violation under section 63 — 11—30(l)(c). We read Porter to stand for the proposition that in a DUI per se case, the defendant cannot offer evidence regarding whether or not he was under the influence which would impair his ability to diive a vehicle. We do not read Porter as holding that in a DUI per se case, evidence regarding the consumption of alcohol cannot be introduced to prove whether or not the defendant was at a certain BAC when he was driving a motor vehicle. In the instant case, Evans was not offering evidence of her consumption of alcohol and Dr. Rosenhan’s testimony on retrograde extrapolation for the purpose of proving she was not impaired when she was pulled over. Instead, she offered it for the purpose of proving that she did not have a BAC of .08% or over when she was pulled over; thus, she did not violate section 63-ll-30(l)(c). We find this distinction dis-positive.

¶ 15. The State interprets Evans’s argument to be that although her BAC was over the legal limit when she was tested, she was not impaired an hour earlier when she was driving; thus, Evans is really trying to prove, through Dr. Rosenhan’s testimony and other evidence, that her alcohol consumption did not impair her ability to drive. We find the State misinterprets Evans’s argument and her purpose for introducing the evidence. Evans could not introduce evidence to prove that, even though her BAC test result was .09%, she was not impaired at the time she was driving, because this would conflict with the holding of Porter. However, we do not find this was the reason Evans offered the evidence; instead, it was offered to prove her BAC was not above the legal limit when she was pulled over.

¶ 16. Moreover, regarding testimony on retrograde extrapolation, as Evans points out, Mississippi courts have allowed this type of expert testimony in DUI per se cases where there has been a time lapse between the time the defendant was last driving and the time of the BAC test. However, in most cases, the State is offering the testimony in order to prove the defendant’s BAC at the time of the accident or arrest was actually higher at this time than at the time of the test. In Cowart v. State, 910 So.2d 726 (Miss.Ct.App.2005), an expert witness was allowed to testify for the State on “rates of absorption and metabolism of alcohol” in order to prove that the defendant’s BAC, which measured .16% three hours after the accident, was roughly .20% at the time of the accident, and thus the defendant’s claim that he was not intoxicated at the time of the accident was untrue. Id. at 729(¶ 13).

¶ 17. Additionally, in Smith, both the State and the defense were allowed to offer expert testimony on retrograde extrapolation. Smith, 942 So.2d at 316-17(¶ 21). In Smith, the defendant’s BAC was taken four hours after the accident and found to be .13%. Id. at 311(¶ 5). Both experts came to different results: the State’s expert was allowed to testify that Smith’s BAC would have been higher at the time of the accident. Id. The defense’s expert testified that in this case, retrograde extrapolation was an unreliable method of estimating Smith’s BAC at the time of the accident because there was only one known value for the calculations, and two known values were needed. Id. at 317(1122). Further, the defense’s expert argued retrograde extrapolation was only accurate up to a maximum of two hours, and Smith argued the four-hour delay precluded the BAC test’s admissibility. Id. The trial court allowed the State’s expert to give her opinion to the jury that Smith’s BAC would have been higher at the time of the accident than when his blood was tested, but she was precluded from quantifying what Smith’s BAC would have been at the time of the accident. Id. at 317(¶24). This Court affirmed, finding the trial court properly exercised its gatek-eeping role in determining that the testimony of both experts would aid the jury. Id. at 318(¶ 26). Also, the defense’s expert was allowed to testify to counter the State’s expert. Id. We find no distinction between these cases and the instant case, where the defendant is trying to use retrograde extrapolation to prove her BAC was rising, not decreasing, in the time period before her BAC test.

¶ 18. Finally, the State argues that if this Court finds Dr. Rosenhan’s testimony was improperly excluded under Porter, Dr. Rosenhan’s testimony is still inadmissible because he did not qualify as an expert. Evans, however, maintains that Dr. Rosen-han’s expertise was not challenged at trial. The State disagrees, contending that the prosecutor actually did challenge Dr. Ro-senhan’s qualifications by stating that he was “not aware of any expertise” in the field of “ethanol ingestion in the body.”

¶ 19. We are not persuaded by the State’s argument. The following colloquy occurred at trial among defense counsel Joshua Stevens, and prosecutor Robert Baker, after Dr. Rosenhan was examined about his qualifications:

Mr. Stevens: Specifically have you been tendered as an expert witness and served as an expert witness in DUI case type studies, blood alcohol content?
Dr. Rosenhan: Yes, sir. In that list of courts for blood alcohol calculations and discussion of the methods that they are determined.
Mr. Stevens: Are you familiar with what we mean by the absorption phase and the metabolism phase of one who has ingested alcohol?
Dr. Rosenhan: Yes, sir. This has been reduced to mathematical equations, and that’s what I utilized.
Mr. Stevens: [H]ave you had occasion to testify about a process called retrograde extrapolation?
Dr. Rosenhan: Yes, sir .... it is a mathematical relationship.
Mr. Stevens: Your Honor, I tender Mr. Rosenhan as an expert in the field of ethanol ingestion in the body.
The Court: Mr. Baker, do you have questions of voir dire of his qualifications?
Mr. Baker: My first question was for counsel opposite, exactly what this witness is being offered as an expert in.
Mr. Stevens: To testify based on the history of this particular case, what her blood alcohol content would have been at the time she was operating the motor vehicle based on proof.
Mr. Baker: Well, Your Honor, I’m not aware of any expertise in that particular area. If he’s got a particular area that he is offering [him] for, such as retrograde extrapolation ... that is something we would be able to respond to.
The Court: I assume that’s what he is going to testify to, Counsel.
Mr. Baker. Okay. Well, Your Honor, upon the issue of whether Mr. Rosen-han is going to be offered ... for the purpose of retrograde extrapolation, it’s an irrelevant issue to this case....

We find that on appeal the State takes the prosecutor’s comment out of context. According to the above colloquy, Mr. Baker was not objecting to Dr. Rosenhan’s qualifications, but the precise name of his expertise. We do not find a significant difference between the two phrases used to describe Dr. Rosenhan’s expertise. “Retrograde extrapolation” is the mathematical formula used to determine the rate of “ethanol ingestion in the body.” Obviously, the trial judge and defense counsel were under the impression Dr. Rosenhan was going to testify about “retrograde extrapolation,” and this is the line of questioning which preceded the State’s objection. Once this point was clarified, the prosecutor moved on to discuss the merits of Dr. Rosenhan’s testimony. He made no attempt to challenge Dr. Rosenhan’s qualifications as an expert in either “ethanol ingestion in the body” or “retrograde extrapolation.” The State is not allowed to litigate a new issue on appeal; it is well established that failure to raise an issue in the trial court procedurally bars the issue on appeal. Daniels v. Bains, 967 So.2d 77, 81(¶ 13) (Miss.Ct.App.2007).

¶ 20. Procedural bar notwithstanding, we find Dr. Rosenhan sufficiently qualified as an expert in “retrograde extrapolation” or “ethanol ingestion in the body.” Discussing Mississippi’s Daubert standard and Mississippi Rule of Evidence 702 regarding the qualifications of an expert witness, our supreme court has stated:

First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Second, the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue. In addition, Rule 702 “does not relax the traditional standards for determining that the witness is indeed qualified to speak an opinion on a matter within a purported field of knowledge.”

McLemore, 863 So.2d at 35(¶ 7) (internal citations omitted). Dr. Rosenhan is a registered mechanical engineer with a bachelors and masters of science in mechanical engineering, and he has done all but his dissertation for a Ph.D. He has taught courses in internal combustion engines and statistics at Mississippi State University for approximately forty-four years. He testified that the Intoxilyzer 8000 is essentially an engineering instrument — an infrared spectrometer. He has engaged in scientific studies of the effect of ethanol on the body, and while he is not a toxicologist, he has studied “the various relationships between ethanol ingestion, absorption, elimination, and blood alcohol content in humans.” Additionally, Dr. Rosenhan stated he has served as an expert witness in DUI cases on blood alcohol content methods and calculations. Accordingly, we find that the State’s argument that Dr. Rosenhan is not qualified as an expert in retrograde extrapolation is without merit.

CONCLUSION

¶ 21. For the foregoing reasons, we find the circuit court abused its discretion in excluding the evidence of Evans’s consumption of alcohol and the expert testimony of Dr. Rosenhan. Additionally, we reject the State’s argument that Dr. Ro-senhan is not qualified as an expert in retrograde extrapolation. Accordingly, we reverse and remand for a new trial in accordance with this opinion.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

KING, C.J., LEE, P.J., IRVING, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P. J., AND GRIFFIS, J. CHANDLER, J., NOT PARTICIPATING.

CARLTON, J.,

Dissenting:

¶ 23. The majority opinion states that it reads Porter v. State, 749 So.2d 250 (Miss.Ct.App.1999), to stand for the proposition that in a DUI per se case, the defendant cannot offer evidence regarding whether or not she was under the influence, impairing her ability to drive a vehicle. I agree with that portion of the majority’s reading of Porter. However, the majority further explains that it does not read Porter as holding that in a DUI per se case, evidence regarding the consumption of alcohol cannot be introduced to prove whether or not the defendant’s blood alcohol content (BAC) was below the legal limit when she was operating a motor vehicle. I disagree with this portion of the majority’s reading of Porter, and I respectfully dissent.

¶ 24. This Court examines a trial judge’s admission or exclusion of evidence for abuse of discretion. Smith v. State, 942 So.2d 308, 313(¶ 11) (Miss.Ct.App.2006). “Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party.” Id.

¶25. In Porter, this Court found no merit to Porter’s argument that the trial court erred when it denied Porter the opportunity to offer evidence that his ingestion of alcohol had not impaired his ability to operate his truck. Porter, 749 So.2d at 254-55(¶ 13). In the case before us, Evans is similarly trying to introduce evidence of ingestion in order to argue that she was not over the legal limit, even though this is a DUI per se case. Evans was shown to be over the legal limit through a chemical analysis, and her attempt to bring in evidence of consumption of alcohol is simply a subterfuge to escape the limitations of the DUI per se statute and of our holding in Porter.

¶ 26. The Court in Porter explained that there was no evidence to weigh against the reliability of the Intoxilyzer machine’s analysis of his BAC. Porter, 749 So.2d at 257(¶ 24). Similarly, Evans offers no evidence that the Intoxilyzer was not working properly, was not calibrated properly, or that the chemical analysis reading was otherwise unreliable. Instead, Evans sought to introduce evidence of her consumption of alcohol, her particular absorption rate, her gender, and her wreight to argue that she would have tested at a lower BAC had she been tested at the time she was stopped. This evidence was inadmissible under our ruling in Porter, and the trial judge did not err in refusing to allow it.

¶ 27. Evans emphasizes the fact that her BAC was not tested until more than one hour after her arrest. I find that to be a reasonable delay, and I respectfully submit that such a finding would be supported by legislative intent based upon my review of the statutory guidelines and case law. Even in DUI cases involving a death, the Legislature requires only that the defendant’s BAC be tested within two hours, if possible. Miss.Code Ann. § 63-11-8(1) (Rev.2004). In Wash v. State, 790 So.2d 856, 859(¶ 10) (Miss.Ct.App.2001), this Court upheld admission of a BAC test which had not been obtained within the two-hour time frame suggested by the Legislature, stating:

The statute provides that the test is to be administered within two hours of the accident “when possible.” Miss.Code Ann. § 63-11-8 (Rev.2000). The words “when possible” are relevant here. Were this two[-]hour time frame necessary to ensure the integrity of the test results, it is doubtful that the [Ljegisla-ture would have included such language in the statute. The trial judge found that although the blood test was administered more than two hours after the accident, there was no evidence of deliberate delay on the part of the officers. We agree, and we see no reason to find that the time lapse between the accident and the administration of the blood test was prejudicial to Wash in any way.

There is no evidence of any deliberate delay on the part of the officers in Evans’s case. The delay was attributed to waiting on a tow truck to tow Evans’s car and the drive back to the Monroe County Sheriffs Office.

¶ 28. I further disagree with the majority’s rebanee on Cowart v. State, 910 So.2d 726 (Miss.Ct.App.2005) and Smith v. State, 942 So.2d 308 (Miss.Ct.App.2006). The majority contends those cases allowed expert testimony-similar to the testimony Evans sought to introduce — in DUI per se cases which involved a time lapse between when the defendant was driving and when the BAC test was administered. However, Cowart and Smith were both charged under Mississippi Code Annotated section 63-11-30(5) (Rev.2004) and not under the DUI per se statute. The applicable portion of section 63-11-30(5), which was at issue in Coivarl and Smith, states:

Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb, organ or member of another shall, upon conviction, be guilty of a separate felony for each such death, mutilation, disfigurement or other injury and shall be committed to the custody of the State Department of Corrections for a period of time of not less than five (5) years and not to exceed twenty-five (25) years for each such death, mutilation, disfigurement or other injury....

Miss.Code Ann. § 63-11-30(5). James Cowart was charged with an offense commonly referred to as DUI manslaughter, under section 63-11-30(5), for causing the death of another driver in a car accident. Cowart, 910 So.2d at 727(¶ 1). James Smith was charged with aggravated DUI, also under section 63-11-30(5) for causing serious injury to another driver in an accident. Smith, 942 So.2d at 310(¶ 1). Section 63-11-30(5) requires not only a violation of any subsection of Mississippi Code Annotated section 63-11-30(1) but also, proof that the defendant acted negligently and that his negligence was the cause of the death or serious injury to the victim. Because negligence and causation must be proven, in addition to the violation of one of the subsections of section 63-11-30(1), in order to convict a defendant under section 63-11-30(5), evidence of impairment, and therefore consumption, would be relevant and admissible in those cases. The facts in Evans’s case are not at all similar to the facts of Smith and Cow art. Evans’s case is a straight DUI per se case, and evidence of consumption was inadmissible. Evans was not charged with driving while under the influence of an intoxicating liquor pursuant to section 63 — 11—30(l)(a) or charged with driving under the influence of another substance under section 63-11-30(l)(b). She was charged only with DUI per se under section 63 — 11—30(l)(c). The Smith and Cowart cases are section 63-11-30(5) cases, not DUI per se cases; and their holdings are inapplicable here.

¶ 29. A review of the records in Cowart and Smith show further factual distinctions between those cases and Evans’s case. The majority states that the indictment in Cowart does not specify which subsection of section 63-11-30(1) was charged, but that the language clearly indicates that the defendant was accused of driving with a BAC greater than .10%. I agree that the indictment is perhaps lacking with respect to subsection numbers and letters. However, the language of the indictment reflects that the elements of both subsections 63-ll-30(l)(a) and (l)(c) were charged in stating that Cowart did “willfully, unlawfully, and feloniously operate a motor vehicle while under the influence of intoxicating liquor, having ten one-hundredths percent (.10%) or more by weight volume of alcohol in his blood.”

¶ 30. The jury instructions submitted by both the defense and the State, which were given by the court in Cowart, both carried forth that same language from the indictment setting forth elements of subsections (l)(a) and (l)(c). The portion of the indictment charging a violation of operating a motor vehicle while under the influence of intoxicating liquor constitutes a violation of subsection (l)(a), thereby allowing evidence of impairment and consumption into evidence. Moreover, such evidence of intoxication and consumption was indeed presented to the jury. The jury heard evidence of beer cans in Co-wart’s truck at the scene of the wreck, with some of the beers still cold at the time of the wreck. Officers found beer cans inside and outside the truck, including a beer on the front seat and a bag of beer cans on the floorboard. Cowart left the scene of the accident. He claimed at trial that he drank three or four beers after leaving the scene, despite statements to law enforcement at the scene that he bought the beer before the wreck in two different towns and had been to a bar before the wreck. Cowart’s BAC registered a .16% on the Intoxilyzer. An officer testified that Cowart told him that he and his boss purchased a twelve-pack of beer after work and drove back to Forest where his vehicle was parked to drink the twelve-pack of beer. The officer stated that Cowart told him that he purchased another six-pack of beer, stopped at a fast-food restaurant to get something to eat, and then traveled home on Highway 21 where the wreck occurred. The officer also testified that the odor of alcohol permeated out of the vehicle, off both Co-wart’s breath and body. Furthermore, the officer testified that Cowart spontaneously approached him upon his return to the scene of the wreck and said he was drunk. The officer further testified that, coupled with his admission that he had been drinking, Cowart’s mannerisms were unsteady, his speech was slurred, and his eyes were red. The officer testified that, in his opinion, Cowart was intoxicated prior to leaving the scene of the wreck.

¶ 31. Testimony by the toxicologist was offered to refute Cowart’s claim that the three or four beers he had consumed following the wreck caused his BAC to register .13% on the Intoxilyzer. The gap in time between the wreck and Cowart’s claim of consumption of three to four beers after the wreck render the Cowart case factually distinguishable from the case at bar.

¶ 32. Likewise, the indictment in Smith does not specify the subsection of section 63-11-30(1) the defendant was charged with violating by delineating a subsection letter. However, the language in the indictment reflects that both subsections (l)(a) and (l)(c) were charged in the indictment with language stating that Smith did “willfully, unlawfully, feloniously drive or operate a vehicle in the County of Pearl River, State of Mississippi, at a time when he was under the influence of intoxicating liquor and at a time in which he had ten one-hundredths percent (.10%) or more in his blood ... to wit: .13%.” The indictment in Smith contains the word “and” between the language charging violations of subsections (l)(a) and (l)(c), making it clear that both subsections were contained in the indictment. At trial, evidence of intoxication was presented through testimony that Smith had the odor of alcohol on his breath, slurred speech, and bloodshot eyes. A witness also said Smith was drunk and loud, acted crazy, and cursed at the police. However, at the close of the case, the jury instructions reflect that only the per se violation was submitted to the jury-

¶ 33. There is no explanation in the record as to why both violations were not submitted to the jury. However, the prosecution may have set forth both violations in the indictment as alternative theories in the event the BAC results were suppressed or otherwise not admitted into evidence. The record does reflect that there was a pretrial motion to exclude the BAC results or suppress the testimony asserting that the defendant’s blood alcohol content would have been higher at the time of the wreck. However, we do not know why only one theory was submitted to the jury. Nonetheless, since both subsections were charged by the plain language of the indictment and evidence relevant to the elements charged therein was admissible, I find Smith factually distinguishable from the case at bar.

¶ 34. Furthermore, while the State’s objections to the defense expert’s qualifications on the subject of retrograde extrapolation and the human absorption rate of alcohol were, perhaps, inartful and lacking, I would find that the issue of admissibility of the testimony has been preserved for this Court’s review. The admission or exclusion of expert testimony is within the discretion of the trial judge. Smith, 942 So.2d at 315(¶ 18). We do not reverse the decision of the trial judge unless his decision “was arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id. at 316(1118). I see no abuse of discretion in the trial judge’s exclusion of Mr. Rosen-han’s testimony.

¶35. Mississippi courts apply a modified Dcmbert standard when ruling on the admission or exclusion of expert testimony. Id. at 316(¶ 20). The Mississippi Supreme Court has explained the standard as follows:

Under Rule 702, expert testimony should be admitted only if it withstands a two-pronged inquiry. Kansas City S. Ry. v. Johnson, 798 So.2d 374, 382 (Miss.2001). First, the witness must be qualified by virtue of his or her knowledge, skill experience or education. Second, the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue.

Id. (citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 35(¶ 7) (Miss.2003)). Mr. Rosenhan was an unqualified witness under the first prong of the modified Dau-bert standard. The record reflects that Mr. Rosenhan retired from engineering and was teaching statistics and internal combustion engines at the college level. He indicated that he had studied and utilized the various relationships between ethanol ingestion, absorption, elimination, and blood alcohol content in humans. However, he had received no formal medical training. Mr. Rosenhan received formal training in mechanical engineering, not in the biological sciences or toxicology. The trial judge has a duty as gatekeeper to make sure that only reliable scientific information is presented to the court. Mr. Rosenhan was not qualified to testify regarding toxicology, including the absorption and metabolism of alcohol in the human body.

¶ 36. Moreover, in both Coivart and Smith, the two cases relied upon by the majority as allowing retrograde-extrapolation testimony in DUI per se cases, the judges in those cases allowed toxicologists to testify regarding human absorption rates and metabolism of alcohol. Mr. Ro-senhan was not qualified as an expert in toxicology. Moreover, as explained above, neither Cowart nor Smith was a DUI per se case under section 63 — 11—30(l)(c).

¶ 37. I find Evans’s attempt to enter evidence of her consumption of alcohol in order to show that her BAC was lower than .08% in the hour before being given the Intoxilyzer test is actually an effort to circumvent our holding in Porter. The decision whether to admit or refuse evidence is within the discretion of the trial judge. I find no abuse of discretion or error of law in the trial judge’s application of Porter to this case or in the judge’s exclusion of Mr. Rosenhan’s testimony. I respectfully dissent and would affirm the conviction and sentence.

MYERS, P.J., and GRIFFIS, J., Join this Opinion.

      . A "DUI per se" violation means a violation that should be charged as an offense under section 63 — 11—30(l)(c), "when test results are available and are sufficient to give the officer probable cause” to believe that the person is operating a vehicle with a BAC of .08% or more. Leuer v. City of Flowood, 744 So.2d 266, 268(¶ 7) (Miss.1999) (quoting Young v. City of Brookhaven, 693 So.2d 1355, 1363-64 (Miss.1997) (citation omitted)).

      . In 2002, this standard was lowered to .08%. See Miss.Code Ann. § 63-11 — 30(l)(c) (Supp. 2003).

      . However, this type of evidence would be properly offered for a violation of section 63-1 l-30(l)(a).

      . There was no issue on appeal as to whether the trial court should have allowed the State's expert to quantify the BAC at the time of the accident.

      . We are not persuaded by the attempt of the dissent to distinguish Cowart and Smith. While these cases do concern section 63 — 11— 30(5), DUI manslaughter, rather than section 63-11-30(1) alone, by definition, in order to violate subsection (5), there has to be a violation of subsection (1). The opinions did not specify what portion of subsection (1) was involved; however, we have reviewed the records of those cases and have confirmed that each defendant was indicted for causing the accident while having ten one-hundredths percent (.10%) or more by weight volume of alcohol in his blood. Further, the jury instructions and closing arguments of both cases do not reflect that there was any issue of intoxication other than by exceeding the BAC. We have reviewed the entire trial transcript of Cowart, and there was no evidence presented of any impairment at the time of the accident, other than Cowart’s BAC. The testimony cited by the dissent regarding Co-wart's evidence of intoxication and statements to law enforcement officers were after his return to the scene two hours later. Accordingly, we find these DUI per se cases analogous to the one before us.

      . The use of the term DUI per se in this opinion refers to a violation of section 63 — 11 — 30(l)(c), which under the applicable version of that statute is driving with a blood alcohol content over die legal limit of .08%. See Miss. Code Ann. § 63 — 11—30(1 )(c) (Supp.2008).

      . The underlying violation of section 63 — 11— 30(1) in Cowart’s case charged a violation of driving under the influence of alcohol under subsection (l)(a) and under section (l)(c), the per se portion of the statute. Cowart, 910 So.2d at 727(¶ 1).

      . The underlying violation of section 63 — 11— 30(1) in Smith’s case charged a violation of subsections (l)(a) and (l)(c), driving under the influence of alcohol. Smith, 942 So.2d at 310(¶ 1). However, only the per se violation was submitted to the jury.

      .Section 63-1 l-30(l)(a)-(e) includes: (a) driving while under the influence of intoxicating liquor; (b) driving while under the influence of any other substance which impairs one's ability to operate a motor vehicle; (c) driving with a blood alcohol content of .08% or higher for those above the legal age to buy alcoholic beverages, or .02% for those below the legal age to buy alcoholic beverages; (d) driving while under the influence of a controlled substance, the possession of which is unlawful; or (e) driving with a blood alcohol content of .04% for persons operating a commercial motor vehicle.

      . The State made a motion in limine to exclude any evidence from the defense’s proposed expert. The State noted in its argument that it learned of the proposed expert at docket call and implied that he had not been provided prior notice of the proposed expert's testimony through discovery. The State then moved orally to exclude the testimony of the expert as irrelevant and inadmissible under Porter. He argued that any such testimony would be based upon inadmissible facts. He further objected to any expert or lay witness who would testify as to Evans’s consumption of alcohol. See M.R.E. 701.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Billy Joe ANDERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02137-COA.
    Court of Appeals of Mississippi.
    May 26, 2009.
    Rehearing Denied Oct. 27, 2009.
    Certiorari Denied Jan. 21, 2010.

      William R. Labarre, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Billy Joe Anderson was convicted of armed robbery and sentenced to serve thirty-five years in the custody of the Mississippi Department of Corrections. Anderson now appeals and argues that the circuit court abused its discretion when it: (1) failed to suppress the in-court identification of Anderson when the initial out-of-court identification had been tainted by an earlier display of a single photograph of Anderson and (2) admitted into evidence exhibit number four — the photographic lineup — when its authenticity could not be conclusively established. We find no error and affirm.

FACTS

¶ 2. Anderson was indicted for the September 10, 2002, armed robbery of Jerry’s Appliance Center in Utica, Mississippi. At the time of the robbery, there were only two employees working at Jerry’s — Bryan Hales and Lynda Stephens. They heard the door open and saw two males enter the store. One man was tall and thin; the other was short and muscular. Both Hales and Stephens assumed that the men were customers because they began to look around the store. Then, the tall, thin man pulled out a gun and pointed it at Hales. He demanded that Hales give him the money from the cash register.

¶ 3. While the tall man was holding the gun on Hales, the shorter man removed about $1,000 in cash and checks from the cash register. The tall man then demanded Hales’s wallet. Hales and Stephens were told to get on the floor behind the store counter until the two men left the store.

¶ 4. Hales then called, the Utica Police Department. Officer Von Shinnie immediately reported to the crime scene. Utica Police Chief Timothy Myles, who was in Jackson at the time, was also called to the scene.

¶ 5. Officer Shinnie spoke with Darren Howard, the owner of a car wash located across the street from Jerry’s. Howard told Shinnie that he saw his cousin, Billy Joe Anderson, in a blue car driving up and down Main Street and back behind Jerry’s.

¶ 6. Jerry Yates, the owner of Jerry’s, was called to the store after the robbery. He called his long-time customer, Hattie Mae Washington, to find out if she knew Anderson. She informed Yates that Anderson was her son. Yates said that Anderson had robbed him and asked Washington to come to the store. Washington was -asked for a picture of her son, and she retrieved a Polaroid picture of Anderson that she kept in her car. The picture had been taken while Anderson was eating a piece of cake, so part of his face was covered.

¶ 7. Hales testified that he did not remember seeing the photograph. Stephens remembered the photograph, but she said that she could not tell whether or not the man eating cake in the picture was the individual who had robbed the store. Washington testified that both Hales and Stephens assured her that the man in her picture was not the man who had robbed the store.

¶8. Approximately one week after the robbery, Officer Shinnie separately showed Hales and Stephens a photographic lineup containing photographs of six different males. Hales and Stephens both independently selected Anderson as the tall, thin man who held the gun during the robbery.

¶ 9. Anderson filed a motion to suppress the photographic lineup and any in-court identification. After a lengthy hearing, the circuit court denied Anderson’s motion and found that the show-up — the showing of the single Polaroid picture of Anderson eating cake — did not taint the identification from the photographic lineup because Anderson was not identified from the Polaroid. The circuit court further held that there was nothing unduly suggestive about the photographic lineup; thus, it was unnecessary to consider the factors regarding any issues with an in-court identification. The witnesses were allowed to identify Anderson during trial, and the jury found Anderson guilty of armed robbery. Anderson now appeals his conviction.

ANALYSIS

I. Whether the witnesses’ in-court identification of Anderson was tainted by the earlier display of the picture of Anderson eating cake or the photographic lineup.

¶ 10. Anderson argues that “the original out-of-court identification upon which his arrest was based was tainted by a view on the day of the robbery of a single photograph his mother brought to Jerry’s.” He further claims that the photographic lineup was unduly suggestive, and it tainted the in-court identification of him. The State responds that there was substantial evidence to support the circuit court’s ruling that the photographic lineup was not suggestive and that the picture shown by Anderson’s mother did not taint the witnesses’ later identification of Anderson.

¶ 11. When reviewing a trial court’s suppression hearing findings, we consider “whether or not substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted,” and we will disturb the findings of the trial court “only where there is an absence of substantial credible evidence supporting it.” Brooks v. State, 748 So.2d 736, 741(¶ 26) (Miss.1999) (citation omitted).

¶ 12. This case is governed by York v. State, 413 So.2d 1372, 1383 (Miss.1982). In York, the Mississippi Supreme Court held that:

Only pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed. A lineup or series of photographs in which the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer, is impermissibly suggestive. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A showup in which the accused is brought by an officer to the eyewitness is likewise impermissibly suggestive where there is no necessity for doing so. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (impermissively suggestive); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (same); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (not impermissively suggestive).
An impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Id. (footnotes omitted).

¶ 13. First, we examine whether the Polaroid picture of Anderson tainted the witnesses’ later identification of Anderson in the photographic lineup. Washington, Anderson’s mother, showed Hales and Stephens a picture of Anderson eating a large piece of cake. Neither witness identified the man in the picture as the man who had robbed Jerry’s. The picture was small, and portions of Anderson’s face were covered by the piece of cake.

¶ 14. The circuit court noted that show-ups — showing a single photograph of a suspect — are certainly suggestive in nature. However, the circuit coui*t found that the testimony of Hales, Stephens, and Washington indicated that no identification was made. The circuit court held that:

We would be dealing with a different situation if in showing the photograph or in observing the photograph that Ms. Washington presented in saying, yes, that was one of the culprits, and then the police got together and came up with a photo lineup which included the same photograph or a photograph of the same defendant that had been earlier identified by the witness, then we would be looking at the York factors.
But accepting Ms. Washington’s testimony as fact, both witnesses according to her indicated that the person shown in that photograph was not involved in the robbery.
Therefore, there could not have been any resulting taint from that which led them to make an identification of the defendant from the subsequent photographic lineup.

¶ 15. We do not agree with the circuit court that the photographic lineup was not tainted by the single photograph simply because Anderson was not positively identified by the witnesses. Anderson’s argument is that the witnesses recognized him from the Polaroid picture and not the robbery. This argument is not conclusively dismissed just because the witnesses said that the man in the Polaroid was not the man who had robbed the store. Thus, we reject the circuit court’s finding that the show-up was not suggestive only because no positive identification was made.

¶ 16. Anderson argues that the show-up was suggestive; therefore, the subsequent photographic lineup was tainted. He states that “a week [after the robbery and the show-up], Stephens and Hales both identified] Mr. Anderson, the only individual of whom they [had] previously seen a photograph.... ”

¶ 17. However, even if we agree with Anderson’s argument, the suggestiveness of the Polaroid picture and the photographic lineup does not require the exclusion of the witnesses’ in-court identification of Anderson. As we stated above: “An impermissibly suggestive pretrial identification does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” York, 413 So.2d at 1383 (footnotes omitted).

¶ 18. The factors to be considered in determining the likelihood of misidenti-fication are:

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witnesses] degree of attention, [3] the accuracy of the witnesses] prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, [5] and the length of time between the crime and the confrontation.

Id. (quoting Neil, 409 U.S. at 199-200, 93 S.Ct. 375).

¶ 19. Here, an examination of these factors shows that, under a totality of the circumstances, there is credible evidence to support the circuit court’s admission of the in-court identifications.

A. The opportunity of the witnesses to view the criminal at the time of the crime.

¶ 20. Both Hales and Stephens had the opportunity to view the gunman’s face under the lighting of the store at noon on the day of the robbery. He was not wearing any type of mask or disguise. Further, Hales and Stephens were only a few feet away from the gunman, and there were no obstructions in the store blocking their view of him.

B. The witnesses’ degree of attention.

¶ 21. Both witnesses were paying close attention to the gunman because he was pointing an automatic weapon at Hales. Even before seeing the gun, the witnesses paid close attention to the two men because it was part of their job to be attentive to customers who came in to look around the store. Hales testified that he approached the tall man to see if he needed any assistance. He further testified to the areas of the store that the two men browsed before the gun was shown.

C. The accuracy of the witnesses’ prior description of the criminal.

¶ 22. Both witnesses described the gunman as a tall and skinny male. Hales estimated him to be about six feet tall and about 155 to 160 pounds. According to the record, Anderson is five feet, ten inches tall and weighs 157 pounds.

D. The level of certainty demonstrated by the witnesses at the confrontation.

¶ 23. Officer Shinnie testified that Hales and Stephens immediately picked Anderson out of the photographic lineup. There was no hesitation from either witness. Hales testified that it only took a matter of seconds to pick out Anderson because he recognized him immediately as the tall man who had robbed the store. Stephens further testified that she was one hundred percent certain that the man that she picked out of the photographic lineup was the same man who had robbed the store.

E.The length of time between the crime and, the confrontation.

¶ 24. Officer Shinnie presented the photographic lineup to Hales and Stephens one week following the robbery.

¶ 25. The linchpin of the issue of identification is reliability. York, 413 So.2d at 1383 (citation omitted). We find that each of the factors examined above is sufficiently met such that, even assuming that the photographic lineup was suggestive, the record is clear as to the reliability of the in-court identifications. Thus, we find that the circuit court did not err in admitting the in-court identifications. Accordingly, this issue is without merit.

II. Whether the authenticity of the photographic lineup was conclusively established.

¶ 26. Anderson contends that the circuit court abused its discretion in admitting into evidence the copy of the photographic lineup because the exhibit was never properly authenticated. The State responds that the circuit court properly found that the exhibit was what it purported to be — a collection of the photographs shown to the witnesses.

¶ 27. Authentication of evidence is governed by Mississippi Rule of Evidence 901(a), which states: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” We review a circuit judge’s decision to admit or exclude evidence under an abuse of discretion standard. Graves v. State, 492 So.2d 562, 565 (Miss.1986).

¶ 28. The Utica Police Department was unable to locate the original photographic lineup that Hales and Stephens actually viewed. Instead, a photocopy of the photographic lineup was introduced as exhibit four. There was conflicting testimony regarding the format of the original photographic lineup. Neither Hales nor Stephens could say that exhibit four was in the exact form as the photographic lineup they used to identify Anderson.

¶ 29. After Anderson’s objection concerning authentication, the circuit court made the following ruling:

... it’s the Court [which] determine[s] whether or not it’s admissible, and in exercising that discretion the ultimate inquiry is [whether] the Court [is] satisfied that the document is what it is purported to be, and what it is purported to be is a collection of the photographs shown to the witnesses. The Court is satisfied that it’s a collection of the photographs shown to the witnesses. Whether or not those photographs were shown separately or all together in a sheet as far as the Court is concerned is immaterial. The Court is satisfied that it contains copies of [the] photographs in black and white that were shown to the witnesses.

¶ 30. We find no abuse of discretion in the circuit court’s ruling. Regardless of the conflicting testimony concerning the form of the original photographic lineup, the testimony at trial and during the suppression hearing established that exhibit four did, indeed, contain copies of the photographs shown to Hales and Stephens. Accordingly, this issue has no merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J„ NOT PARTICIPATING.


author: IRVING, J.,

text:
    MISSISSIPPI GAMING COMMISSION, Appellant, v. Edward SIMON, Appellee.
    No. 2008-SA-02066-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      Office of the Attorney General by: Deanne B. Saltzman, by: Thomas H. Mueller, attorneys for appellant.
    Robert S. Little Jr., attorney for appel-lee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of the Mississippi Gaming Commission’s denial of Edward Simon’s work permit application. After the Commission denied the application, Simon appealed to the Tunica County Circuit Court, which reversed and found that the Commission’s denial was arbitrary and capricious. Feeling aggrieved, the Commission appeals and asserts that the circuit court erred in finding that the Commission’s denial of Simon’s application was arbitrary and capricious.

2. We agree, and, therefore, reverse and render the judgment of the circuit court.

FACTS

¶ 3. The Commission initially granted Simon a work permit in 1994. In 1998, Simon entered a plea of guilty to a felony marijuana possession charge and received deferred adjudication, which he successfully completed. Despite the felony, the Commission renewed Simon’s work permit in 1998, 2000, and 2002 or 2003. In 2006, Simon applied for a work permit, but the Commission’s executive director denied same due to Simon’s having pleaded guilty to a felony. Feeling aggrieved, Simon appealed, and the decision was affirmed by a hearing examiner and by the full Commission. Simon then appealed to the circuit court, which reversed the decision of the Commission. In its judgment, the circuit court found “that the Commission has the authority to deny a person a [work permit] if they commit a felony crime. There is no requirement ... that a person have an actual conviction.” (Emphasis added). Nevertheless, the circuit court reversed the Commission’s decision, finding:

[Simon]’s argument that does have merit is the contention that the Commission’s action was arbitrary and capricious. When the Commission became aware of [Simon]’s charge in 1997, it made the decision to suspend [Simon]’s work permit until such time as he was released from probation. Once [Simon] had successfully completed his probation and had the charges against him dismissed, the Commission again made the decision to reinstate his work permit and again renew it in 2002.
This is not a case where the Commission is claiming that it only recently discovered [Simon]’s run[-]in with the law; the Commission had all of the pertinent facts before it in 1997 when it chose to take the its [sic] disciplinary action. It had the opportunity then to deny [Si-monas permit unequivocally. It chose not to. Once the Appellant finished his probationary period and reapplied for his work permit, the Commission again had the discretion to deny his request. It chose not to.
While the Commission would have been justified in denying [Simon] a work permit in 1997 when he first entered a plea of guilty to a felony crime, to wait some ten years later to do so is arbitrary and capricious.

¶ 4. Additional facts, as required, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. Our supreme court has discussed the standard of review that appellate courts should use when reviewing the Commission’s decisions:

Pursuant to Miss.Code Ann. § 75-76-173(2) ([Rev.] 2000), circuit court and [appellate court] judicial review afforded by the Mississippi Gaming Control Act is the exclusive method of reviewing Mississippi Gaming Commission actions. The standard of review for such appeals is outlined as follows:
The reviewing court may affirm the decision and order of the commission, or it may remand the case for further proceedings or reverse the decision if the substantial rights of the petitioner have been prejudiced because the decision is:
(a) In violation of constitutional provisions;
(b) In excess of the statutory authority or jurisdiction of the commission;
(c) Made upon unlawful procedure;
(d) Unsupported by any evidence; or
(e) Arbitrary or capricious or otherwise not in accordance with law.
Miss.Code Ann. § 75-76-171(3) [(Rev. 2000) ] (emphasis added). Also, we must adhere to a “deferential standard of review of an administrative agency....” Miss. Gaming Comm’n v. Freeman, 747 So.2d 231, 238 [(32)] (Miss.1999). See also IGT v. Kelly, 778 So.2d 773, 775 [ (6)] (Miss.2001). In Nevada, which employs [an] identical statutory standard of review, the Nevada Supreme Court held that “a reviewing court should affirm a decision of the Board which is supported by any evidence whatsoever, even if that evidence is less than that which a reasonable mind might accept as adequate to support a conclusion.” Sengel v. IGT, 116 Nev. 565, 2 P.3d 258, 261 (2000) (emphasis in original) (citations omitted).

Pickle v. IGT, 830 So.2d 1214, 1220(12) (Miss.2002). Simon’s appellate brief urges this Court to “first consider the repercussions of assigning to [the words ‘any evidence whatsoever’] their broadest meaning.” However, we are bound by the law as stated by the Mississippi Supreme Court. Therefore, we will consider the decision of the Commission with a highly deferential standard of review, and will affirm if the decision is supported by “any evidence whatsoever, even if that evidence is less than that which a reasonable mind might accept as adequate to support a conclusion.”

¶ 6. As the circuit court properly found, there is no requirement that Simon have been convicted of a felony before being denied a work permit. Mississippi Code Annotated section 75-76-131(5) (Rev. 2009) states that: “The executive director [of the Commission] shall refuse to issue a work permit if the applicant has committed, attempted [,] or conspired to commit a crime which is a felony.... ” (Emphasis added). While Simon pleaded guilty and received deferred adjudication, there is no doubt that he committed a felony. The statute does not require that Simon be convicted of a felony. Also, unlike the other grounds listed in section 75-76-131(5), there is no discretion on the part of the Commission when an applicant has committed a felony. Rather, an applicant who has committed a felony “shall” be denied a work permit. Therefore, the Commission had no discretion in denying Simon’s work permit. Furthermore, as we understand Simon’s appellate brief, he does not contend that the statute requires a conviction; rather, he contends that the Commission’s decision was arbitrary and capricious because of the previous renewals of his work permit applications.

¶ 7. Simon specifically attacks the fact that the Commission was unable to explain why his work permit applications were renewed in contravention of the statute. Simon argues that: “The Commission’s silence as to the reasoning behind its late decision ... should be deemed per se arbitrary and capricious.” Simon further claims that the Commission’s denial “opens the door to far more unsavory dealings than those likely to be committed by a man with a dismissed marijuana charge.” Without citing any supporting evidence, Simon claims that “[a] corrupt gaming inspector could literally extort thousands of dollars from applicants, all the while threatening to expose a[sic] ‘overlooked’ crime if the applicant didn’t cooperate.”

¶ 8. This Court finds Simon’s contentions wholly without merit. The Commission was without discretion in its decision to deny him a work permit. It therefore follows that the decision was not arbitrary and capricious. While there is no explanation of why Simon’s permit was renewed after he committed a felony, that fact does not mean that the Commission’s denial of his work permit was arbitrary and capricious; in fact, according to the statute, the Commission had no choice but to deny Simon’s application. That the Commission improperly acted in contravention of the statute several times prior to the denial merely means that Simon improperly held a work permit for several years when such should have been denied to him. If anything, the Commission’s previous renewals of Simon’s work permit constituted a windfall to him. Given our highly deferential standard of review, the circuit court’s judgment must be reversed, and the Commission’s decision must be reinstated.

¶ 9. As to Simon’s contention that the Commission’s decision will lead to “widespread graft,” we note that there is no suggestion that anyone attempted to extort money from Simon in order to “overlook” his felony. The non-discretionary nature of the denial may even be intended to reduce graft and corruption — goals that would be undermined by allowing Simon to improperly retain his work permit.

¶ 10. This contention of error is without merit.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: MAXWELL, J.,

text:
    Latoya Dominique ROBINSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01689-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.
    Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court.

¶ 1. Latoya Dominique Robinson was convicted of aggravated assault. The Circuit Court of Amite County sentenced her to five years’ imprisonment and ten years of post-release supervision in the custody of the Mississippi Department of Corrections. She now appeals claiming ineffective assistance of counsel based upon her attorney’s failure to request a self-defense jury instruction. Finding no obvious deficient performance by Robinson’s trial counsel, we affirm her conviction without prejudice to her right to pursue post-eon-vietion relief.

FACTS

¶ 2. On the night of December 29, 2007, Robinson and her cousins, Druscilla and Sasha Robinson, were walking to the Gloster community center for a party. A car driven by Kellie Carter stopped on the side of the road near them. Christy Bonds was a passenger in the car, as were Nia Bonds and Nia’s friends, April Coving-ton and Swan Abernum.

¶ 3. After the car stopped, Nia exited the vehicle, and a fight broke out between Druscilla and Nia. Robinson tried to join in the fight, and Christy attempted to stop her. Christy testified that she grabbed Robinson’s arm and placed herself between Robinson and Nia. According to Christy and Kellie, Robinson swung across Christy’s left cheek and cut her face. Christy then responded to Robinson’s attack, and Kellie also joined in the fight.

¶ 4. After the altercation, both Christy and Kellie sought medical treatment. Christy had a gash on her face that required fifty-three stitches to close. Hospital staff believed Christy’s injury resulted from a razor blade or box cutter. Kellie testified she also went to the hospital because of injuries she sustained when Robinson hit her over the head with a bottle.

¶ 5. Sasha testified for the defense. She claimed Robinson did not have a razor blade or knife that night, but she saw Nia holding a paper towel with an unknown object wrapped in it when Nia got out of the car. Druscilla also testified for the defense. She explained that she did not see a razor in anyone’s hand but saw a paper towel with something rolled up inside of it sitting on top of Kellie’s car.

¶ 6. Robinson testified in her own defense. She claimed she began fighting with Christy, and Kellie then hit her on the head with a gin bottle. Robinson testified she then grabbed a paper towel from the back of the car to defend herself. The paper towel contained a razor blade, and Robinson used the blade to cut Christy. Robinson explained that at the time she was afraid for her safety.

¶ 7. Robinson was found guilty of aggravated assault. Her motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict, was denied by the circuit court.

STANDARD OF REVIEW

¶ 8. To prevail on a claim of ineffectiveness of counsel “[a] defendant must demonstrate that [her] counsel’s performance was [1] deficient and [2] that the deficiency prejudiced the defense of the case.” Burnside v. State, 882 So.2d 212, 216(¶ 20) (Miss.2004) (quoting Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001)). “Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable. The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id. (internal citations omitted).

DISCUSSION

¶ 9. Robinson’s sole claim on appeal is that her trial counsel was ineffective because he did not seek a self-defense instruction.

¶ 10. We have held “[c]ounsel’s decision not to request a specific jury instruction falls under the category of trial strategy, and is given much deference by this Court.” Fair v. State, 950 So.2d 1108, 1111(¶ 9) (Miss.Ct.App.2007) (citing Smiley v. State, 815 So.2d 1140, 1148 (¶¶ 31-32) (Miss.2002)). In Mohr v. State, 584 So.2d 426 (Miss.1991), our supreme court discussed the wide latitude given attorneys and our limited review of their choice of trial strategy. In assessing whether an attorney’s representation meets constitutional standards, the supreme court emphasized:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a pai'ticular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Id. at 430 (quoting Lambert v. State, 462 So.2d 308, 316 (Miss.1984) (internal citation omitted)).

¶ 11. Our review of the record as a whole, without further factual inquiry, reflects no obvious deficient performance by Robinson’s trial counsel. While Robinson may have been entitled to a self-defense instruction upon request, it is improper for this Court, without more, to second-guess defense counsel’s trial strategy. Thus, we decline to do so here. In the absence of obvious defects in counsel’s performance, the parties must “stipulate that the record is adequate” for direct review of an ineffective assistance of counsel claim before we address the merits of the claim on direct appeal. See Read v. State, 430 So.2d 832, 841 (Miss.1983). Here they did not do so.

¶ 12. Because the sole issue on appeal involves an allegation of inaction by her trial attorney and would require information outside the record, we find it should not be addressed at this time. Neal v. State, 15 So.3d 388, 406(¶ 42) (Miss.2009). Seeing no obvious deficient performance by her trial attorney, we affirm Robinson’s conviction without prejudice to her right to pursue post-conviction relief.

¶ 13. THE JUDGMENT OF THE AM-ITE COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS TO SERVE AND TEN YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO AMITE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . There was testimony that there previously had been an argument between the two groups.


text:
    Verenzo GREEN, Appellant, v. STATE Of Mississippi, Appellee.
    No. 2008-KA-01918-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.

      Benjamin Allen Súber, attorney for appellant.
    Office of The Attorney General, by Lisa Lynn Blount, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Verenzo Green was convicted of conspiracy to commit a crime. He was sentenced to five years in the custody of the Mississippi Department of Corrections (“MDOC”). Green appeals the conviction. He claims that the circuit court erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. Green was incarcerated at the Natchez City Jail on prior convictions for possession of a weapon by a convicted felon and drug possession. During his incarceration, Green was romantically involved with Jessica Emfinger and Ellen Ayers. Emfinger testified that she received a series of phone calls from Green prior to and during his incarceration. Em-finger testified that Green asked her to call his mom and get soap and toothpaste for him. He then asked Emfinger to go to Broadmoore grocery, pick up some “burn” (i.e., marijuana), put it in a soap box, bring it to the jail, and give it to the female jailer. Emfinger followed Green’s instructions except she gave the package to a male jailer, Ricky Hinson.

¶ 3. Hinson testified that he received the package. He found' the package suspicious. When he opened it, he found a piece of soap, a lighter, a dollar bill, rolling papers, a hydrocodone with acetaminophen tablet (Lorcet), and marijuana. Hinson turned the package over to his supervisor, Gary Nations.

¶ 4. Nations, a criminal investigator with the Natchez Police Department, ascertained Emfinger’s identity and called her in for questioning. At first, Emfinger denied having any knowledge about the package. Emfinger subsequently admitted knowledge of the package and implicated Green. However, Emfinger did admit that Green did not ask for the Lorcet. Emfinger was arrested and held in the Natchez City Jail from May 12 to May 16, 2008.

¶ 5. During her incarceration, Emfinger’s mother gave her two letters, one postmarked May 12, that were mailed to Emfinger’s home address. The return address of the letters contained Green’s name and jail address. Emfinger identified the handwriting in the letters as Green’s handwriting. Also, during her incarceration, Emfinger received a letter that was slipped under her door. She identified the handwriting in that letter as Green’s. Emfinger turned the letters over to Nations.

¶ 6. Two witnesses testified on Green’s behalf, both of which were Green’s relatives. Green’s mother testified that she did not give Emfinger soap and toothpaste. Green’s mother also testified that the handwriting in the letters was Green’s. Ashley Williams, Green’s cousin and a female jailer, testified that while Green and Emfinger were both incarcerated, a male inmate gave her a letter that was supposed to go to Green. Williams, assuming the letter was from Emfinger, took it to her and told her if she wanted to send a letter, she must use a stamp.

¶ 7. On August 13, 2008, Green was indicted for conspiracy to introduce a controlled substance into the Natchez City Jail. After a trial, Green was convicted of conspiracy to introduce a controlled substance into a correctional facility and sentenced to five years in the custody of the MDOC. On November 12, 2008, Green filed a motion for a new trial, which was denied.

STANDARD OF REVIEW

¶ 8. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.

ANALYSIS

¶ 9. Green argues that the only evidence that he was involved in a conspiracy to bring a controlled substance into the Natchez City Jail was the testimony of Emfinger. He claims that Emfinger’s testimony was unreliable and confusing. Green also argues that Emfinger denied knowing anything about the items found in the package and did not confess her knowledge until she was interrogated by Nations. He contends that Emfinger knew he had other girlfriends, and this fact made Emfinger uncomfortable and upset, causing her to try to get back at him for seeing many different women. The State’s evidence, discussed above, established that Gi’een and Emfinger agreed to introduce a controlled substance into the Natchez City Jail.

¶ 10. Green also argues that evidence was px*esented establishing that the letters Emfinger claimed were sent to her were not sent by Green, and the only evidence the letters were associated with him was from the testimony of Emfinger. The letters that were sent to Emfinger’s home contained Green’s name and jail address as the return address. The first letter sent on April 30, 2008, indicated that Green and Emfinger were romantically involved. It contained the following language:

Hey Boo. What you up to. Me, just waiting on Sunday. Have you been being good? Thank a hell of a lot for accepting my phone calls. I will never forget this. I owe you one. Look, I need to talk to you on Friday. So make sure you are at home. Stay real to yourself and in love with me.

The content of the second letter, postmarked May 12, 2008, referenced that Green did not receive the package. The second letter contained the following language:

Look the sack didn’t make it. So I would think it’s best if you didn’t show your face around here anymore. Okay. Thanks for trying.... I love you and respect you to the fullest. The good thing about this whole thing is they don’t know who you are or where you come from. Look, did you go to court today. I know yesterday you left the block and talked to somebody. What about?

Once Green found out that Emfinger had been incarcerated, he sent her another letter. This letter was slipped underneath the door of Emfinger’s jail cell. It indicates that Green was trying to tell Emfinger what to say to the police. It contained the following language:

Look, you got paid twenty dollars to bring a bag to the guy, who paid, a girl from across the water named whoever.... You never talked to him. He don’t know y[’]all from a can of paint. That’s what he told them. That’s all you know, and that’s all you’re going to know.

¶ 11. The letters clearly indicate that Green and Emfinger were conspiring to introduce contraband into the Natchez City Jail. They also show that Green and Emfinger were involved romantically, regardless of whether Green had other girlfriends. These letters are evidence that Emfinger was trying to comply with Green’s request for the contraband rather than get back at him for being involved with other women.

¶ 12. It is the jury’s responsibility to evaluate the credibility of a witness. Smith v. State, 821 So.2d 908, 910(¶ 4) (Miss.Ct.App.2002). “The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity.” Id. (quoting Ford v. State, 737 So.2d 424, 425(¶ 8) (Miss.Ct.App.1999)). The jury - accepted and believed Emfinger’s testimony.

¶ 13. We find that the verdict is not against the overwhelming weight of the evidence and allowing the verdict to stand will in no way result in an unconscionable injustice. Thus, this issue has no merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF CONSPIRACY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.