        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KM-01603-COA

RYAN RHYMER A/K/A RYAN P. RHYMER                                           APPELLANT
A/K/A RYAN PATRICK RHYMER

v.

STATE OF MISSISSIPPI                                                         APPELLEE


DATE OF JUDGMENT:                         08/14/2013
TRIAL JUDGE:                              HON. LEE SORRELS COLEMAN
COURT FROM WHICH APPEALED:                OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   LANCE O’NEAL MIXON
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                        FORREST ALLGOOD
NATURE OF THE CASE:                       CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION:                  CONVICTED OF DRIVING UNDER THE
                                          INFLUENCE, FIRST OFFENSE, AND FINED
                                          $300; AND CONVICTED OF CARELESS
                                          DRIVING AND FINED $25
DISPOSITION:                              AFFIRMED - 03/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Ryan Rhymer appeals the Oktibbeha County Circuit Court’s judgment finding him

guilty of driving under the influence (DUI), first offense, and careless driving. On appeal,

Rhymer argues his DUI and careless-driving convictions are against the overwhelming

weight of the evidence. Finding no error, we affirm.

                                         FACTS
¶2.    The Oktibbeha County Justice Court convicted Rhymer of DUI in Cause No. 2012-

0399-CRA and of careless driving in Cause No. 2012-0400-CRA. Rhymer appealed his

convictions to the circuit court, which tried the two causes together in a trial de novo by

bench trial.

¶3.    During the trial, Deputy Tim Cook testified that, just before 2 a.m. on July 20, 2012,

he pulled Rhymer over after witnessing Rhymer’s truck weave across the center lane of

traffic. Deputy Cook testified that when he approached Rhymer’s truck he smelled alcohol

coming from inside the vehicle and saw an open beer can inside the truck. According to

Deputy Cook’s testimony, he never noticed tobacco or anything else inside Rhymer’s mouth

when speaking with Rhymer.

¶4.    Following the traffic stop, Deputy Cook had Rhymer blow into a portable breath-test

machine, which registered a positive result for alcohol. After arriving at the sheriff’s

department, Rhymer agreed to submit to a second test. Following the automated screen

prompts from the Intoxilyzer 8000, Deputy Cook administered the second test. The test

results from the two breath samples submitted by Rhymer indicated that Rhymer had a

breath-alcohol concentration (BAC) of 0.10 percent.

¶5.    Rhymer’s coworkers Cody Smith and Jason Johnson also provided trial testimony.

Smith testified that he ate dinner with Rhymer around 7:30 p.m. the evening before Rhymer’s

arrest and then went back out with Rhymer from around 9 p.m. to 1:30 a.m. Smith testified

that Rhymer consumed several alcoholic beverages during their time together but did not

consume any more alcohol after midnight. Smith further testified that Rhymer never



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appeared to be impaired or under the influence of alcohol at any point during the evening.

¶6.    Johnson, another one of Rhymer’s coworkers, testified that he received a phone call

around 2:30 a.m. on July 20, 2012, asking if he would pick up Rhymer’s truck. When

Johnson arrived at the location where Deputy Cook had pulled over Rhymer, Johnson

approached Rhymer and spoke with him for a few minutes. Johnson testified at trial that

Rhymer had appeared normal and did not seem to be impaired or under the influence of

alcohol when the two men spoke.

¶7.    Rhymer also testified during his trial. He stated that, starting around 4:45 p.m. on July

19, 2012, and continuing over the course of the evening, he consumed about five alcoholic

beverages. According to Rhymer’s testimony, when Deputy Cook pulled him over, he had

dipping tobacco in his mouth and informed Deputy Cook of this fact. Rhymer testified,

however, that Deputy Cook said that was fine and still instructed Rhymer to blow into the

portable breath-test machine. Rhymer testified that Deputy Cook then told him to spit out

his tobacco, and Rhymer complied with the request. Rhymer testified that Deputy Cook

asked whether Rhymer had anything with which to rinse out his mouth, and Rhymer replied

that he did not.

¶8.    Rhymer also testified that, after arriving at the sheriff’s station and prior to taking the

Intoxilyzer 8000 test, he asked for a drink of water to rinse out his mouth. Rhymer testified

that he made the request because he still had tobacco between his teeth and in his retainer.

Rhymer further testified that Deputy Cook refused the request and informed Rhymer that he

could have some water after Deputy Cook was finished with him.



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¶9.    Rhymer’s attorney tendered Dr. Jimmie Valentine as an expert in clinical

pharmacology and toxicology. Dr. Valentine testified that he was familiar with the protocols

for using the Intoxilyzer 8000 to administer a breath test. According to Dr. Valentine’s

testimony, the tobacco used by Rhymer contained the ingredient ethyl alcohol. Dr. Valentine

further stated that, in his expert opinion, the presence of dipping tobacco in a person’s mouth

could affect a breath test. Dr. Valentine testified that the Intoxilyzer 8000 was unable to

differentiate between the alcohol in the tobacco and the alcohol from a person’s lungs. Based

on his own mathematical calculations, Dr. Valentine estimated that Rhymer’s BAC was

between 0.027 percent and 0.066 percent at the time Deputy Cook stopped him.

¶10.   The circuit court entered two orders finding Rhymer guilty of both DUI and careless

driving. For the DUI conviction in Cause No. 2012-0399-CRA, the circuit court judge fined

Rhymer $300. For the careless-driving conviction in Cause No. 2012-0400-CRA, the circuit

court judge fined Rhymer $25. Rhymer subsequently filed a motion for a judgment

notwithstanding the verdict or, in the alternative, a new trial. The circuit court denied

Rhymer’s motion, and Rhymer now appeals his convictions to this Court. In the interest of

judicial economy and efficiency, Rhymer’s two causes have been consolidated into a single

case for purposes of his appeal to this Court.

                                       DISCUSSION

¶11.   On appeal, Rhymer argues that his DUI and careless-driving convictions are against

the overwhelming weight of the evidence. When reviewing the circuit court’s denial of

Rhymer’s motion for a new trial and Rhymer’s argument that his convictions are against the



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overwhelming weight of the evidence, we weigh the evidence in the record in the light most

favorable to the verdicts. McCallum v. State, 996 So. 2d 189, 194-95 (¶23) (Miss. Ct. App.

2008). Furthermore, we accept as true all evidence in favor of the State, and we reverse only

if the circuit court abused its discretion. Price v. State, 892 So. 2d 294, 297 (¶11) (Miss. Ct.

App. 2004). “[W]e 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.”

McCallum, 996 So. 2d at 194 (¶23) (citation omitted).

¶12.   Rhymer argues that the circuit court judge failed to provide any factual or legal basis

to support his convictions. Specifically, Rhymer asserts that the circuit court judge failed to

make any ultimate findings of fact or conclusions of law regarding Dr. Valentine’s expert

testimony and regarding the conflicting testimony about whether Rhymer had tobacco in his

mouth at the time Deputy Cook stopped him. Rhymer contends that the circuit court judge’s

decision to find him guilty without making such findings constituted an abuse of discretion.

He therefore asks this Court to either reverse and render his convictions or to reverse and

remand for a new trial.

¶13.   As our precedent recognizes, the findings of a circuit court judge sitting without a jury

are safe on appeal where they are supported by substantial, credible, and reasonable evidence.

Kea v. Keys, 83 So. 3d 399, 408 (¶27) (Miss. Ct. App. 2011). This Court will only disturb

the circuit court judge’s findings if he abused his discretion, was manifestly wrong or clearly

erroneous, or applied an erroneous legal standard. Id.

¶14.   In the present case, testimony provided at trial disputed Rhymer’s assertions that he



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had tobacco in his mouth at the time Deputy Cook stopped him and that he informed Deputy

Cook of this fact. Deputy Cook testified that he observed Rhymer for at least twenty minutes

before administering a breath test. Although Rhymer admitted that he had consumed five or

six beers earlier that night, Deputy Cook testified that Rhymer did not consume any foods

or liquids between the time of the traffic stop and the breath test. According to Deputy

Cook’s testimony, he never noticed tobacco or anything else inside Rhymer’s mouth during

his conversations with Rhymer. Furthermore, Deputy Cook testified that Rhymer never

stated that he had tobacco in his mouth or that he wished to rinse his mouth out prior to

taking the breath test.

¶15.   Following Rhymer’s trial, the circuit court judge made his findings of fact and

conclusions of law. Sitting as the trier of fact during Rhymer’s bench trial, the circuit court

judge possessed the sole authority to determine the credibility of the witnesses who testified.

See Kea, 83 So. 3d at 408 (¶27). Although conflicting testimony was presented about

whether Rhymer had tobacco in his mouth at the time Deputy Cook administered the breath

test, the circuit court judge determined Deputy Cook’s testimony to be the most credible.

¶16.   The circuit court judge noted that Rhymer had consumed five or six beers prior to the

traffic stop. The circuit court judge also noted that the defense witnesses who testified about

the amount of alcohol Rhymer consumed prior to the traffic stop were both Rhymer’s close

friends and his subordinate employees. Therefore, after considering all the evidence and

testimony presented during trial, the circuit court judge found Rhymer guilty of both the DUI

and careless-driving charges.



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¶17.   After weighing the evidence in the light most favorable to the verdicts and accepting

as true all evidence in favor of the State, we cannot find upon review that the verdicts in this

case are so against the weight of the evidence that they constitute an unconscionable

injustice. See McCallum, 996 So. 2d at 194 (¶23); Price, 892 So. 2d at 297 (¶11). We

therefore find no abuse of discretion in the circuit court judge’s decision to deny Rhymer’s

motion for a new trial. As a result, this issue lacks merit.

¶18. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT OF
CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND
FINE OF $300; AND CONVICTION OF CARELESS DRIVING AND FINE OF $25,
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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