       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2014-KM-01649-COA

LYNDA DIANNE ROBINETTE A/K/A LYNDA                                   APPELLANT
ROBINETTE A/K/A LYNDA ROBINETTE-
MCNAIR

v.

STATE OF MISSISSIPPI                                                   APPELLEE


DATE OF JUDGMENT:                      10/20/2014
TRIAL JUDGE:                           HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:             MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:               KEVIN DALE CAMP
                                       JARED KEITH TOMLINSON
ATTORNEY FOR APPELLEE:                 BOTY MCDONALD
CITY PROSECUTOR:                       BOTY MCDONALD
NATURE OF THE CASE:                    CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION:               AFFIRMED CONVICTION OF DRIVING
                                       UNDER THE INFLUENCE, FIRST
                                       OFFENSE, AND FINE OF $700, AND
                                       SENTENCE OF FORTY-EIGHT HOURS IN
                                       THE CUSTODY OF THE MADISON
                                       COUNTY SHERIFF’S DEPARTMENT,
                                       WITH THE SENTENCE SUSPENDED FOR
                                       TWO YEARS UNLESS SOONER INVOKED;
                                       AND CONVICTION OF RUNNING A STOP
                                       SIGN AND FINE OF $50; AND
                                       CONVICTION OF FOLLOWING TOO
                                       CLOSELY AND FINE OF $50
DISPOSITION:                           AFFIRMED: 11/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      LEE, C.J., FOR THE COURT:

¶1.   In August 2012, Lynda Robinette pleaded no contest in Ridgeland Municipal Court
to driving under the influence, first offense, running a stop sign, and following too closely

(tailgating). The municipal court found Robinette guilty of all three offenses. Robinette

appealed the municipal court’s decision to the County Court of Madison County. After a trial

de novo, she was again convicted of all three offenses. Robinette appealed the county court’s

decision to the Madison County Circuit Court, which affirmed her convictions. Robinette

now appeals and asserts that the trial court erred in denying her motion for a directed verdict

and in rendering a verdict of guilty because the evidence was insufficient to find her guilty

beyond a reasonable doubt.1 Finding that Robinette is procedurally barred from raising these

issues, we affirm the judgment of the circuit court.

                                           FACTS

¶2.    On March 24, 2012, Officer David Mattox with the Ridgeland Police Department was

patrolling Rice Road when he observed a vehicle “traveling a little faster than it should have

been.” Officer Mattox approached the vehicle from behind. The vehicle, driven by

Robinette, was traveling at about fifty miles per hour, and there was approximately one car

length between her vehicle and the vehicle in front of her. Officer Mattox testified that

Robinette was tapping her brakes a lot, an indication that she was following too closely. The

vehicles approached a stop sign. The vehicle in front of Robinette came to a complete stop,

then proceeded through the intersection. Officer Mattox testified that Robinette yielded, but

did not stop. When Officer Mattox saw Robinette roll through the intersection without



       1
         Robinette’s notice of appeal states she was appealing her convictions for DUI,
running a stop sign, and tailgating. However, her brief only discusses the DUI and the
tailgating convictions.

                                              2
coming to a complete stop, he activated his blue lights and proceeded to pull her over.

¶3.    Officer Mattox approached Robinette’s vehicle and asked Robinette for her driver’s

license and insurance. Officer Mattox testified that he smelled alcohol coming from inside

the vehicle. He testified that when he noticed that Robinette’s eyes were bloodshot and

glassy, he asked her how much she had to drink that night, to which she replied, “three sips

of vodka and a glass of wine with dinner.” Officer Mattox testified that “her speech was

slurred and thick-tongued.” Initially, Robinette had told Officer Mattox that there was no

alcohol inside the vehicle, but in a bag inside the vehicle, Officer Mattox found a wine bottle

that had been opened with one-fourth of the wine remaining. Suspecting that Robinette was

driving under the influence of alcohol, Officer Mattox called DUI Officer Stephen Webb to

the scene.

¶4.    Officer Webb approached the vehicle. He testified that “a strong odor of an

intoxicating beverage [was] coming from inside [the] vehicle.” He asked Robinette to get

out of the vehicle. She complied. Officer Webb testified that Robinette’s “breath and person

reeked of an alcoholic beverage.” He testified that her eyes were bloodshot and glassy, and

her “[s]peech was somewhat thick-tongued and slurred.” Officer Webb asked Robinette how

much she had to drink that night, to which she replied that she had one glass of wine at the

Zippity Doo Dah parade. He offered Robinette a preliminary breath test, to which she

consented, and she tested positive for alcohol. Officer Webb then asked Robinette to

perform several sobriety tests. Robinette informed him that she suffered from inner-ear

problems, which affected her balance, so he declined to administer the walk-and-turn test and



                                              3
the one-leg-stand test. She submitted to the horizontal-gaze-nystagmus test, where Officer

Webb observed all six indicators of impairment. He then placed Robinette under arrest for

driving under the influence and transported her to the Ridgeland Police Department. At the

Ridgeland Police Department, Officer Webb observed Robinette for twenty minutes prior to

offering the Intoxilyzer 8000 test. Robinette consented, and registered a .12 blood-alcohol

content.

¶5.    On cross-examination, Officer Webb was questioned regarding the twenty-minute

observation period. Officer Webb testified that the twenty-minute observation period is

required by the state crime lab to ensure that the person to be tested does not ingest anything

by mouth, burp, belch, or regurgitate. If the person to be tested does burp or belch, the

twenty-minute observation period must start over. Officer Webb testified that he never saw

Robinette burp, and he never asked her if she burped. When a portion of the video recording

of the twenty-minute observation period – where Robinette puts her hand to her cheek and

dips her head – was played, Officer Webb testified, “I’m not sure if you could call -- she said

the word ‘me,’ and then [she] kind of motioned to herself.” At this point in the trial,

Robinette interjected to make clear that she was saying “excuse me” during that portion of

the video. On redirect, Officer Webb testified that he was sitting three feet away from

Robinette, and never heard her burp, belch, or regurgitate, and that he had performed

hundreds of these observations during his career. At the end of the State’s case, Robinette

moved for a directed verdict. Her motion was denied.

¶6.    Melissa Dempsey, Robinette’s friend, testified for the defense. She and Robinette had



                                              4
met for lunch before marching in the Zippity Doo Dah parade together. For three hours they

stood in a parking lot waiting for the parade to begin. Dempsey testified that they did not eat

or drink anything while they waited. Once they finally started moving, the parade moved

very quickly. Dempsey testified that by the end of the parade, they were practically running.

After the parade, Dempsey and Robinette went to the liquor store and each bought a bottle

of wine. Using the cups that Dempsey’s husband had caught in the parade, they each poured

themselves some wine. They put their wine bottles in their cars and went to an outdoor

concert. They ate dinner at a sushi restaurant, then parted ways a little after 10 p.m.

Dempsey testified that she and Robinette had a plastic cup of wine each, that Robinette was

offered something to drink out of a cup during the parade, and that Robinette was not drunk.

¶7.    On cross-examination, Dempsey was asked about the three sips of vodka that

Robinette had told Officer Mattox she had consumed. Dempsey testified that she had

understood Robinette to have turned the vodka down when it was offered to her during the

parade, but if she had consumed any vodka at all, it would have been while they were

marching in the parade, and it would have been a very small amount because at the rate they

were going, there was no time to stop and drink anything. Dempsey also testified on cross-

examination that they each poured their plastic cup of wine from their own bottle, so how

Robinette’s bottle was only one-fourth full when Officer Mattox found it, she did not know.

¶8.    Robinette testified at trial. She testified that the day of the parade, she woke up at

4:30 a.m. because she had to work. Robinette, a registered nurse, helped deliver six babies

before 2 p.m., which is when she left work to get something to eat. She then brought some



                                              5
food home to her sons. Robinette testified that she met Dempsey at Babalu restaurant about

4:30 p.m., then waited for three hours in a parking lot for the parade to start. She testified

that she and Dempsey were surrounded by “a bunch of drunk old women.” Robinette

testified that one of the women was extremely intoxicated and said to her as they were

marching, “Oh, you’re not having any fun. Here, take a sip of this,” and handed Robinette

the cup she was holding. To pacify the woman, Robinette put the cup to her lips, and took

a sip. She testified that it was “maybe half a teaspoon.” Robinette testified she took a sip

at 5 p.m., and twice during the parade.

¶9.    After the parade, Robinette, Dempsey, and Dempsey’s husband and daughter went to

see a band that was playing in the Fondren area of Jackson. Robinette and Dempsey went

to a liquor store and each bought a bottle of wine. Dempsey’s husband gave them the plastic

cups he had caught in the parade, and they each poured themselves a cup of wine from their

respective wine bottles. Robinette testified that she later measured the plastic cups and found

that they held twelve fluid ounces. They recapped the wine bottles and put them in their cars.

They ate sushi at a restaurant, then parted ways. Robinette started driving to her boyfriend’s

house. He was in bed when she arrived, so she left to drive home, talking to him on the

phone all the while. As she was driving down Rice Road, she noticed a police car get behind

her. Robinette testified that as she approached a stop sign, she “hesitated,” which was when

the police officer turned on his lights. Robinette pulled over.

¶10.   Robinette testified that she suffers from gastroparesis, a medical condition that causes

belching and regurgitation. She testified that she burps on a regular basis, “pretty much after



                                              6
every meal,” and that she was burping the night she was pulled over by Officer Mattox.

Robinette testified that she did not realize how much she was burping until she watched the

video of the Intoxilyzer test. Robinette also testified that she has Meniere’s disease, which

is an inner-ear disorder that causes loss of equilibrium, vomiting, and nystagmus. She

testified that she also suffers from brain seizures, which cause loss of equilibrium as well.

At the end of direct examination, she denied that she was under the influence of alcohol.

¶11.   On cross-examination, Robinette testified that she takes medication for her brainstem

seizures and loss of equilibrium. She testified that she had recently started having drop

attacks where she would collapse unexpectedly, so her doctor increased the dosage of her

medicine. Regarding Robinette’s ability to keep her balance while she is drinking alcohol,

the following exchange occurred between her and the State:

       Q.     Balance doesn’t come easy for you?

       A.     It comes easier once I take my medication, yes. But, no, I’m not the
              typical person that -- if I didn’t take my medication -- no, balance is not
              easy. And alcohol, if I have not had my medication, will definitely
              make it worse, which is why I do not drink very much because the next
              day -- I work six days a week. I work Monday through Friday at
              [University of Mississippi Medical Center] and Saturdays I work at --
              at River Oaks [Hospital], and so, no.

       Q.     The best result would be just to not drink at all, wouldn’t it?

       A.     Right, which is basically what I do.

       Q.     But if you have some alcohol --

       A.     I can have some, yeah, uh-huh.

       Q.     If you have some alcohol, it’s going to contribute more and make more
              complicated your ability to keep your balance.

                                               7
        A.    Yes.

        Q.    And that balance could also impact your ability to drive?

        A.    It has never impacted my ability. The only time my ability to drive was
              impacted was before they knew I had brainstem seizures and I would
              black out on the road. And they diagnosed that in 2006. And since I
              started taking the seizure medicine in 2006[,] I’ve not blacked out any.
              And that did get to where I would not drive on the interstate before I
              was diagnosed. And after I was diagnosed and they put the shunt in my
              ear, I’m able to drive perfectly.

¶12.    Doctor Steven T. Hayne also testified for the defense. Dr. Hayne was accepted as an

expert in the field of clinical and forensic pathology and was asked to review the toxicology

report, perform an extrapolation, and explain the difference between the two results if there

was one.

¶13.    Dr. Hayne testified that he met with Robinette for about three hours and reviewed

some of her medical records. He testified that her medical records showed that she suffers

from vertigo, Meniere’s disease, a seizure disorder, and gastroparesis. He testified that

someone with Meniere’s disease “should have nystagmus all the time,” and that it is

exacerbated by stress and other variables.

¶14.    Dr. Hayne did a retrograde extrapolation. Based on the information Robinette

provided, which included the amount of wine ingested (12 ounces), the time ingested, her

weight, and her medical conditions, Dr. Hayne concluded that her blood-alcohol content was

0.03.   To explain the difference between the Intoxilyzer results and his retrograde

extrapolation, he explained that with gastroparesis, food and fluid remain in the stomach for

a considerable amount of time. He testified that it causes reflux, regurgitation, and vomiting.



                                              8
Dr. Hayne watched the video of the Intoxilyzer test and testified that he saw Robinette burp

at least once and saw what he thought was evidence of burping at other times during the

twenty-minute observation period. He testified that he also saw Robinette cough between

the two samples that were taken. Dr. Hayne testified that because the wine Robinette had

consumed was sitting in her stomach, and because she was burping, and also coughed at one

point, the alcohol, in its gaseous form, “mixed with pulmonary air [to produce] an erroneous,

high level of ethyl alcohol in the pulmonary sample that was tested.”

¶15.   Dr. Hayne also took issue with the difference between the two samples that were

taken. At 11:51 p.m., Robinette registered a .133 blood-alcohol content, and at 11:53 p.m.,

she registered .125. Dr. Hayne testified that is a 6.4 percent difference, which is unusual.

Usually, the difference is one or two percent. He testified that physiologically, one could not

have that high of a variance, and that the variance was caused by the mixture of the two

gases, the pulmonary air with the gastric gas.

¶16.   Robinette was charged with violating Mississippi Code Annotated section 63-11-

30(1)(a) and (b) (Rev. 2013). Robinette was ultimately convicted under section 63-11-

30(1)(a). As stated previously, she was also convicted of running a stop sign and tailgating.

                                STANDARD OF REVIEW

¶17.   Again, this Court is faced with an appeal in which the City of Ridgeland has failed to

file an appellee’s brief.2 “An appellee’s failure to file a brief on appeal is tantamount to

       2
         See Clack v. City of Ridgeland, 139 So. 3d 778, 778 (¶1) (Miss. Ct. App. 2014);
Carlson v. City of Ridgeland, 131 So. 3d 1220, 1222 (¶7) (Miss. Ct. App. 2013); Drabicki
v. City of Ridgeland, 130 So. 3d 113, 118 (¶19) (Miss. Ct. App. 2013); Lobo v. City of
Ridgeland, 135 So. 3d 148, 152 (¶12) (Miss. Ct. App. 2013); see also Woods v. State, 2014-

                                              9
confession of the errors alleged by the appellant. However, automatic reversal is not required

if this Court can say with confidence that the case should be affirmed.” Chatman v. State,

761 So. 2d 851, 854 (¶9) (Miss. 2000) (internal citations omitted).

                                       DISCUSSION

¶18.   Robinette argues that the trial court erred in denying her motion for a directed verdict

and in rendering a verdict of guilty where the evidence was insufficient to prove beyond a

reasonable doubt that she was under the influence of intoxicating liquor. To preserve a

challenge to the sufficiency of the evidence, the defendant must first make a motion for a

directed verdict at the close of the State’s case-in-chief. Page v. State, 990 So. 2d 760, 762

(¶9) (Miss. 2008) (citing Wright v. State, 540 So. 2d 1, 3 (Miss. 1989)). If that motion is

denied, “and the defendant introduces evidence on [her] own behalf, [she] must [then] renew

[her] motion for [a ]directed verdict at the close of all the evidence.” Id. “Failure to do so

constitutes a waiver of any challenge on appeal to the sufficiency of the evidence.” Moore

v. State, 131 So. 3d 1228, 1231 (¶5) (Miss. Ct. App. 2013) (citations omitted).

¶19.   At the close of the State’s case-in-chief, Robinette moved for a directed verdict, which

was denied. Robinette then introduced evidence on her own behalf. At the close of all the

evidence, Robinette did not renew her motion for a directed verdict. Therefore, Robinette’s

challenge to the sufficiency of the evidence is procedurally barred.

¶20.   Notwithstanding the procedural bar, we can say with confidence that the circuit



KM-01807-COA, 2015 WL 5687818, at *1 n.2 (Miss. Ct. App. Sept. 29, 2015); Cameron
v. State, 2014-KM-01802-COA, 2015 WL 5687791 at *1 n. 2 (Miss. Ct. App. Sept. 29,
2015).

                                             10
court’s judgment should be affirmed. In reviewing the sufficiency of the evidence, “the

critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused

committed the act charged, and that [s]he did so under such circumstances that every element

of the offense existed[.]” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation and

internal quotation marks omitted). 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.” Id. If the facts and

inferences “point in favor of the defendant on any element of the offense with sufficient

force that reasonable [jurors] could not have found beyond a reasonable doubt that the

defendant was guilty,” we will reverse and render. Id. However, if the evidence is of such

quality and weight that, “having in mind the beyond a reasonable doubt burden of proof

standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach

different conclusions on every element of the offense,” we will affirm the conviction. Id.

¶21.   Robinette was convicted under section 63-11-30(1)(a), which makes it “unlawful for

any person to drive or otherwise operate a vehicle within this state who . . . is under the

influence of intoxicating liquor[.]” Section 63-11-30(1)(a) is commonly referred to as

“common-law DUI.”         Gilpatrick v. State, 991 So. 2d 130, 133 (¶18) (Miss. 2008).

“Common[-]law DUI is proven when a defendant’s blood[-]alcohol results are unavailable[,]

. . . but there is sufficient evidence that the defendant operated a vehicle under circumstances

indicating his ability to [operate] the vehicle was impaired by the consumption of alcohol.”

Id. (citation omitted).



                                              11
¶22.   After viewing the evidence in the light most favorable to the prosecution, we find that

the evidence was sufficient to support Robinette’s conviction. Officer Mattox testified that

Robinette was speeding, that she was tapping her brakes because she was too close to the

vehicle in front of her, and that she failed to stop completely at a stop sign. He testified that

he smelled alcohol coming from inside the vehicle. There was testimony that Robinette’s

eyes were bloodshot and glassy and that her speech was slurred and thick-tongued. Robinette

admitted that she had consumed alcohol that evening, and a wine bottle one-fourth full of

wine was found inside the vehicle. Officer Webb also smelled the alcohol coming from

inside the vehicle, and testified that Robinette’s breath and person smelled like alcohol. He

administered a preliminary breath test, which tested positive for alcohol.

¶23.   While Robinette’s medical conditions might explain why Officer Webb observed all

six indicators of impairment when he administered the horizontal-gaze-nystagmus test and

why she was swaying in the video footage, Robinette admitted that the consumption of

alcohol aggravates her symptoms, including the loss of equilibrium. Therefore, we find that

the trial court could find that Robinette operated her vehicle under circumstances indicating

that her ability to operate her vehicle was impaired by the consumption of alcohol. This issue

is without merit.

¶24.   Robinette also argues that the evidence was insufficient to support a conviction for

following too closely. She argues that the State failed to prove that Robinette operated her

vehicle imprudently. Mississippi Code Annotated section 63-3-619 (Rev. 2013) provides,

“The driver of a motor vehicle shall not follow another vehicle more closely than is



                                               12
reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon

and the condition of the highway.”

¶25.   The evidence was sufficient to sustain Robinette’s conviction for tailgating. Officer

Mattox testified that Robinette was traveling at about fifty miles per hour, and there was

approximately one car length between her and the car in front of her. He testified that he tells

people that as a general rule there should be one car length for every ten miles per hour.

Officer Mattox testified that Robinette was tapping her brakes, which was another indication

that she was following too closely. And lastly, Robinette was operating her vehicle under

the influence of intoxicating liquor. This issue is without merit.

¶26. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND
FINE OF $700, AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY
OF THE MADISON COUNTY SHERIFF’S DEPARTMENT, WITH THE
SENTENCE SUSPENDED FOR TWO YEARS UNLESS SOONER INVOKED; AND
CONVICTION OF RUNNING A STOP SIGN AND FINE OF $50; AND
CONVICTION OF FOLLOWING TOO CLOSELY AND FINE OF $50 IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, MAXWELL, FAIR AND
JAMES, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH
SEPARATE WRITTEN OPINION.

       ISHEE, J., DISSENTING:

¶27.   I respectfully dissent from the majority’s opinion affirming Robinette’s conviction of

driving under the influence. First, it should be noted that the State of Mississippi failed to

file an appellee’s brief in this appeal. “Failure of an appellee to file a brief is tantamount to

confession of error and will be accepted as such unless the reviewing court can say with


                                               13
confidence, after considering the record and brief of appealing party, that there was no error.”

Varvaris v. Perreault, 813 So. 2d 750, 752 (¶5) (Miss. Ct. App. 2001) (citing Dethlefs v.

Beau Maison Dev. Corp., 458 So. 2d 714, 717 (Miss. 1984)). “In order to merit reversal, the

appellant’s argument should at least create enough doubt in the judiciousness of the trial

court’s judgment that this Court cannot say with confidence that the case should be

affirmed.” Taylor v. Kennedy, 914 So. 2d 1260, 1262 (¶3) (Miss. Ct. App. 2005) (citation

omitted).

¶28.   Robinette was convicted of “operating a vehicle within the state under the influence

of an intoxicating liquor,” also known as “common-law DUI.” As the majority correctly

points out, in order for Robinette to be guilty of such, the State was required to produce

sufficient evidence showing that on the evening in question, Robinette’s “ability to [operate]

the vehicle was impaired by [her] consumption of alcohol.” Gilpatrick, 991 So. 2d at 133

(¶18). I do not believe this burden was met.

¶29.   Officer Mattox testified that when he approached Robinette’s vehicle, the smell of an

alcoholic beverage was emanating from the vehicle, but it is undisputed that Robinette had

consumed a glass of wine, and that there was an open bottle of wine in the car, either of

which could have accounted for the smell. Then, Officer Webb first testified that Robinette’s

“speech was somewhat thick-tongued and slurred,” but when asked the degree to which her

speech was impaired, he admitted that “she wasn’t sloppy slurred, but there was a good –

every now and then you would kind of catch it.” Upon reviewing the video of the

conversations that took place between Robinette and the police officers, I observed no



                                              14
slurring of her speech.

¶30.   Finally, throughout the record, much was made of the conditions from which

Robinette suffers, and how her symptoms might have impacted the outcome of a sobriety

test. She suffers from vertigo and inner-ear problems that affect her balance, so Officer

Webb did not administer the walk-and-turn test or the one-leg stand test. He administered

the horizontal-gaze-nystagmus test in which he reportedly observed all six indicators of

impairment. However, Dr. Hayne testified that someone suffering from Meniere’s disease,

like Robinette, would have nystagmus all of the time. For these reasons, I cannot say with

full confidence that Robinette’s conviction should be affirmed. Accordingly, due to the

appellee’s failure to file a brief, I would reverse and render the circuit court’s judgment.




                                             15
