                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2002-CT-01585-SCT

GEORGE C. STODGHILL

v.

STATE OF MISSISSIPPI

                                ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                            06/03/2002
TRIAL JUDGE:                                 HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED:                   AMITE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     JULIE ANN EPPS
                                             SAMUEL H. WILKINS
ATTORNEY FOR APPELLEE:                       OFFICE OF ATTORNEY GENERAL
                                             BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                          CRIMINAL - MISDEMEANOR
DISPOSITION:                                 THE JUDGMENT OF THE COURT OF APPEALS
                                             IS REVERSED. CONVICTION OF DRIVING
                                             UNDER THE INFLUENCE, FIRST OFFENSE,
                                             AFFIRMED - 01/27/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The Amite County Circuit Court convicted George C. Stodghill of a misdemeanor

conviction of first offense driving under the influence of alcohol.   The trial court imposed a

sentence of forty-eight hours in jail and a $1000 fine, but suspended both due to mitigating

circumstances. A divided Court of Appeals reversed the conviction and remanded for further

findings, Stodghill v. State, 881 So. 2d 885 (Miss. Ct. App. 2004), and we granted the State’s
petition for a writ of certiorari, 883 So. 2d 1180 (Miss. 2004).          Finding the circuit court’s

conviction of Stodghill was correct, we reverse the judgment of the Court of Appeals and

affirm the judgment of the circuit court.

                                                   FACTS

¶2.      George Stodghill and his girlfriend, Carla Kenny, spent a weekend in a secluded country

cabin with his adult son and daughter and their spouses. On the night of June 10, the group held

an outdoor barbeque, during which everyone consumed different amounts of alcohol.           Stodghill

consumed three bourbons before he and Kenny went to bed around 9:30.

¶3.      Stodghill testified that he awoke from his sleep to discover Kenny staggering around

the room. He said she collapsed onto the floor outside their bedroom trembling, sweating, and

exhibiting seizure-like symptoms.1          Hope Armstrong, Stodghill’s daughter, called 911 on the

cellular phone but was unable to communicate the address of the cabin due to poor reception.

After making another 911 call, the operator confirmed the location of the cabin.          Armstrong

testified,

         [T]hey asked me where I was, and I told them . . . that I was on Finn Road and
         asked my father what the address was, and he told me . . . the McGehee house,
         and I remember the dispatcher saying it was the yellow house; that it used to be
         yellow. And my father said ‘Yes, that’s the house.’

She testified that they waited “a little while” before her father decided to drive Kenny to the

hospital, rather than wait on the ambulance. Despite the fact that Stodghill helped confirm the

location to the 911 operator, he testified that he decided to take Kenny to the hospital, because



         1
          However, other than the testimony offered by Stodghill and the other witnesses, there
is nothing in the record which indicates the actual cause, extent, or even existence of Kenny’s
illness that night.

                                                      2
Armstrong had been unable to get through to 911 on the second phone call and he knew the

ambulance was not coming.

¶4.       While Stodghill was on the way to the hospital, State Trooper Scott Clark pulled

Stodghill over after he noticed that Stodghill was speeding and crossing the center line.

Stodghill’s eyes were bloodshot, his breath smelled of alcohol, and when he got out of the car,

he staggered as he walked. Clark noticed that Kenny was pale and covered with a blanket. After

Clark requested Stodghill to submit to a portable breath test, Stodghill refused and explained

that he was taking his sick girlfriend to the hospital. Clark then called an ambulance for Kenny.

Soon after the ambulance arrived, Armstrong and her husband drove up to the scene. Clark

testified that he did not offer them a sobriety test, because he detected nothing that made him

suspect their ability to drive was impaired. 2 He then released Stodghill’s car to Armstrong and

her husband, and allowed them to go on to the hospital.

¶5.       After the ambulance arrived, Stodghill agreed to undergo the standard field sobriety

tests.3       After failing the field sobriety tests, Clark arrested Stodghill for driving under the

influence.      Clark took Stodghill to the sheriff’s department where he refused to submit to an

Intoxilyzer 5000 breath test.

¶6.       Stodghill elected to proceed to trial and defended upon the ground of necessity. The

trial court found Stodghill guilty and imposed a sentence of forty-eight hours in jail and a

$1000 fine but suspended both due to the mitigating circumstances. At a hearing on a Motion


          2
          Armstrong did testify that she and her husband had both consumed “a few beers” earlier
in the night.
          3
         The standard field sobriety tests consist of the horizontal gaze nystagmus, the walk and
turn, and the one leg stand.

                                                   3
for New Trial, the court further explained it found necessity an inadequate defense, because

Stodghill had failed to exhaust all possible alternatives before driving a vehicle after

consuming alcohol.       The Court of Appeals reversed and remanded the case for further fact-

finding by the trial court.

                                              ANALYSIS

¶7.     The State petitioned for writ of certiorari, requesting that we reverse the Court of

Appeals’ decision.      The State argues that because Stodghill ignored other alternatives to driving

drunk, the trial court correctly found that Stodghill could not use the affirmative defense of

necessity to avoid conviction. We granted the petition solely on the issue of whether the Court

of Appeals erred when it found the trial court’s holding was unsupported by the evidence.

¶8.     In Knight v. State, 601 So. 2d 403, 405 (Miss. 1992), the Court adopted the defense

of necessity and held that when a “person reasonably believes that he is in danger of physical

harm[,] he may be excused for some conduct which ordinarily would be criminal.” The defense

is also available where the defendant reasonably acts out of fear of “imminent danger of death

or serious bodily harm” to others. See McMillan v. State, 701 So. 2d 1105, 1106-07 (Miss.

1997). To prove that he had an objective need to commit a crime excusable by the defense of

necessity, a defendant must prove three essential elements: (1) the act charged was done to

prevent a significant evil; (2) there must was no adequate alternative; and (3) the harm caused

was not disproportionate to the harm avoided. Id. at 1107.            Factors such as intoxication or

abnormality are irrelevant to the inquiry into objective reasonableness “since the ‘reasonable

man’ standard postulates a sane and sober man.” Taylor v. State, 452 So. 2d 441, 446-47

(Miss. 1984).

                                                   4
¶9.     In denying Stodghill’s Motion for a New Trial, the trial court stated that because there

were adequate alternatives to driving Kenny to the hospital while intoxicated, Stodghill failed

to prove the affirmative defense of necessity. The Court of Appeals reversed the trial court,

holding that the trial court “never found exactly, or even generally, what alternatives were

available and whether or not they were adequate under the circumstances.” Stodghill, 881 So.

2d at 888. However, the Court of Appeals failed to cite (and we have not found) any authority

requiring a trial court to make an on-the-record justification for judgments in these types of

cases. When a defendant attempts to prove an affirmative defense, such as necessity, it is his

burden to prove that such circumstances exist so as to substantiate such a defense. See Bush

v. State, 585 So. 2d 1262, 1264 (Miss. 1991).

¶10.    Though the record is scant, it fully supports the trial court’s finding that Stodghill had

at least one adequate alternative at his disposal the night he chose to drive Kenny to the

hospital while under the influence of alcohol.   At the cabin, Armstrong and her husband were

present when Kenny began exhibiting signs of sickness.        Officer Clark testified that at the

scene of the arrest, the Armstrongs appeared to be sober, while Stodghill was too impaired to

pass the field sobriety tests Clark administered.    Clark’s testimony demonstrates that, rather

than driving while intoxicated, Stodghill could have asked either his daughter or her husband

to drive Kenny to the hospital.4




        4
         We also note that during the second 911 call, Stodghill and Armstrong confirmed the
location of the cabin with the dispatcher. Armstrong testified that after they waited “a little
while” for the arrival of the ambulance, Stodghill drove to the hospital. The record does not
show whether the ambulance arrived at the cabin after Stodghill left with Kenny.

                                                 5
¶11.     In light of the grave danger posed to the public by drunken drivers, we are reluctant to

extend the defense of necessity in all but the most exceptional circumstances of driving under

the influence of alcohol. We are troubled by the prospect of those who are alcohol-impaired

attempting to justify heinous endangerment to the public simply because they are stranded and

have created their own emergency by way of irresponsible drinking. Other jurisdictions’ tests

for necessity add another prong which naturally addresses the alarming policy implications of

finding that a defense of necessity exists in the case of drunken driving. In those jurisdictions,

the defense of necessity also includes the burden of proving the emergency did not arise by

any fault of the defendant. See, e.g., People v. Pena, 197 Cal. Rptr. 264, 272 (Cal. App. Dep’t.

Super. Ct. 1983) (dealing with case of drunken driving); see also State v. Nelson, 36 P.3d 405,

407 (Mont. 2001); State v. Cole, 403 S.E.2d 117, 119 (S.C. 1991); State v. Cram, 600 A.2d

733, 935 (Vt. 1991).       Were we to add this prong to our test for the affirmative defense of

necessity, it would bar the use of the defense in cases where an emergency is the consequence

of careless or excessive intoxication.    However, in light of the fact that Stodghill clearly fails

to meet the three requirements of the necessity defense under Knight, this issue is not before

us, and we decline to rule on it today.

¶12.     There was adequate evidence in the record for the trial court to find Stodghill did not

satisfy the elements of the necessity defense. We therefore affirm the trial court’s finding that

there were reasonable alternatives available to Stodghill other than driving under the influence

of alcohol.   We reverse the Court of Appeals’ judgment and affirm the judgment of the circuit

court.

                                          CONCLUSION

                                                 6
¶13.   The Court of Appeals erred in reversing the judgment of the circuit court. Therefore,

we reverse the Court of Appeals’ judgment and affirm the circuit court’s judgment.

¶14. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.
CONVICTION  OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE,
AFFIRMED.

      SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




                                                  7
