                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-KA-00570-SCT

LOREN ROSS a/k/a LOREN WENDELL ROSS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          03/21/2018
TRIAL JUDGE:                               HON. WILLIAM E. CHAPMAN, III
TRIAL COURT ATTORNEYS:                     CYNTHIA ANN STEWART
                                           SAMUEL LEE WILKINS
                                           DAN W. DUGGAN, JR.
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF THE STATE PUBLIC
                                           DEFENDER
                                           BY: GEORGE T. HOLMES
                                           PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
DISTRICT ATTORNEY:                         MICHAEL GUEST
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 07/25/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.

       KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Loren Ross was convicted of felony driving under the influence (DUI), fourth offense.

The Circuit Court of Rankin County imposed the maximum sentence of ten years in the

custody of the Mississippi Department of Corrections (MDOC). Ross appeals, arguing that

the trial court erred by not polling the jury to assure that the jurors had been unanimous in

specifying the particular subsection of the DUI statute Ross had violated. He argues also that
the trial court erred by sentencing him to the maximum statutory penalty instead of ordering

rehabilitative treatment for his alcoholism. Finding no error, we affirm Ross’s conviction and

sentence.

                                          FACTS

¶2.    At 12:10 a.m. on April 17, 2017, Brandon Holifield, a patrolman with the Richland

Police Department, was traveling south on Highway 49 in the City of Richland in Rankin

County. Upon approaching the Bud Street intersection, Officer Holifield observed a parked

car positioned halfway in the road and halfway in a parking lot. He approached the driver’s

side door and discovered Loren Ross passed out inside the car with the engine running and

the transmission in the “park” position. He opened the door, awakened Ross, and asked to

see his driver’s license. After viewing Ross’s license, Officer Holifield had him step out of

the car. Ross denied having diabetes or any other medical issues. When Officer Holifield

asked whether Ross knew where he was, Ross answered, erroneously, that he was in Madison

County. He said he had dropped a friend off at work and was on the way home. During the

conversation, Officer Holifield detected the odor of intoxicating beverages emanating from

Ross’s breath and noticed that Ross had difficulty balancing himself. Ross was cooperative

but appeared disoriented and confused, with red, bloodshot, glassy eyes. Based on his

observations of Ross, Officer Holifield arrested him for DUI.

¶3.    At the police station, Officer Holifield placed Ross in a holding cell. Ross began

banging on the holding cell door and, when no one responded, he urinated in the holding cell.

A few minutes later, Officer Holifield removed Ross from the holding cell and obtained



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Ross’s rights waiver and his consent to administer the Intoxilyzer 8000 test. The test,

administered at 1:24 a.m., revealed that Ross’s blood alcohol content was .17 percent, based

on a chemical analysis of his breath as measured by the Intoxilyzer 8000 machine.

¶4.    Wendy Hathcock, a forensic toxicologist with the Mississippi Forensics Laboratory,

testified that she is responsible for maintaining the Intoxilyzer 8000 machines used

throughout the state. She testified that the Intoxilyzer 8000 machine used to test Ross’s blood

alcohol content had been calibrated on April 1, 2017, on May 1, 2017, and also moments

before and after the test itself. She testified that, in her opinion, the results of Ross’s blood

alcohol test were reliable and accurate. The defense and State stipulated that Ross had three

prior DUI convictions. The jury convicted Ross of felony DUI, fourth offense.

                                  LAW AND ANALYSIS

       I.     Whether the trial court erred by failing to poll the jury to ascertain
              its unanimity in specifying the particular subsection of the DUI
              statute Ross violated.

¶5.    Ross was indicted for fourth offense DUI in violation of Mississippi Code Section 63-

11-30 (Rev. 2013). His indictment charged that he had driven “while under the influence of

intoxicating liquor and/or” had “an alcohol concentration of eight one-hundredths percent

(.08%) or more in his blood based upon grams of alcohol per two hundred ten (210) liters of

breath as shown by chemical analysis of his breath . . . .” Ross’s indictment tracked

Mississippi Code Section 63-11-30(1)(a) and (1)(c). Subsection (1) deems it “unlawful for

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

influence of intoxicating liquor.” Miss. Code Ann. § 63-11-30(1)(a) (Rev. 2013). And under



                                               3
subsection (1)(c), one who drives or otherwise operates a vehicle with “an alcohol

concentration of eight one-hundredths percent (.08%) or more . . . in the person’s blood

based upon . . . grams of alcohol per two hundred ten (210) liters of breath as shown by a

chemical analysis of the person’s breath, blood, or urine” is guilty of DUI. Miss. Code Ann.

§ 63-11-30(1)(c) (Rev. 2013).

¶6.    In Young v. City of Brookhaven, 693 So. 2d 1355, 1358 (Miss. 1997), this Court held

that Section 63-11-30 “sets forth numerous methods of committing the same crime.” The

Young Court arrived at this holding by examining the DUI statutes of Alabama and

Arkansas, which were similar to Mississippi’s. Id. at 1357-58. The courts of those states had

found “that the two[ ]subsections are ‘simply two different ways to prove a single violation.’”

Id. at 1358 (quoting Johnston v. City of Fort Smith, 690 S.W.2d 358, 359 (Ark. Ct. App.

1985)).

¶7.    This Court applied Young in Kramm v. State, 949 So. 2d 18 (Miss. 2007). Kramm

was convicted of “driving a motor vehicle while under the influence and causing death,”

“driving a motor vehicle with a blood alcohol level of .08% or more and causing death,” and

“leaving the scene of an accident which resulted in the death of another person.” Id. at 19.

Kramm’s two DUI counts were based on the same incident and, on appeal, he argued that the

two counts described the same crime. Id. at 22. The Court examined Young’s holding that

63-11-30(1)(a) and (1)(c) set forth different methods of committing the same crime and held

that “Kramm [wa]s correct that his conviction and sentence under Count I and Count II




                                              4
amounted to being convicted and sentenced twice for the same crime.” Id. at 23. Therefore,

the Court reversed and vacated Kramm’s conviction on Count II. Id.

¶8.    In this case, after much discussion, the trial court secured both parties’ agreement on

the wording of the elements instruction. That instruction told the jury that it must find,

unanimously, the elements of subsection (1)(a), or, unanimously, the elements of subsection

(1)(c). The elements instruction also set forth that, if the jury found neither the elements of

subsection (1)(a) nor the elements of subsection (1)(c), then it must acquit Ross of fourth

offense DUI. After the jury returned its verdict of guilty, Ross requested that the jury be

“polled in terms of the unanimity issue.” The trial court polled the jury by asking each juror

whether the verdict of guilty was that juror’s verdict; each juror answered affirmatively.

Without objection from Ross, the trial court found that the verdict was unanimous and

discharged the jury.

¶9.    On appeal, Ross argues that the trial court erred by failing to poll the jury to assure

that it unanimously found either the elements of subsections (1)(a) or (1)(c) as required by

the elements instruction. Ross’s argument is procedurally barred. Although Ross requested

that the jury be “polled in terms of the unanimity issue,” the trial court did poll the jury, all

of whom acknowledged having voted guilty, and Ross did not object to the manner in which

the jury had been polled. “In order to preserve an issue for appeal, counsel must object. The

failure to object acts as a waiver.” Havard v. State, 928 So. 2d 771, 791 (Miss. 2006)

(internal quotation marks omitted) (quoting Carr v. State, 873 So. 2d 991, 1004 (Miss.

2004)).



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¶10.   Notwithstanding the procedural bar, the issue is without merit. Ross’s arguments

misapprehend the purpose of jury polling. Mississippi Rule of Criminal Procedure 24.5

provides for the court to poll the jurors individually at a party’s request or sua sponte “[a]fter

a verdict is returned, but before the jury is discharged.” If the jurors are not unanimous on

the verdict, the trial court may direct further deliberations or declare a mistrial. MRCrP 24.5.

The purpose of jury polling “is to determine with certainty that ‘each of the jurors approves

of the verdict as returned; that no one has been coerced or induced to sign a verdict to which

he does not fully assent.’” MRCrP 24.5 cmt. (quoting Humphries v. Dist. of Columbia, 174

U.S. 190, 194, 19 S. Ct. 637, 43 L. Ed. 944 (1899)). Thus, jury polling is a means of ensuring

that all of the individual jurors agree on the verdict. It is not a method for exploring whether

the jurors unanimously found particular facts. We observe that Mississippi Rule of Criminal

Procedure 24.2(a) mandates, except in specified situations, a general verdict, which “gives

the jury discretion over the disposition of the case which it would not have if restricted to

finding particular facts in special verdicts.” MRCrP 24.2(a) cmt.

¶11.   Ross also makes vague attacks on the decision in Young, arguing that this Court

should follow the reasoning of the Young dissent that Section 63-11-30(1) sets forth five

separate offenses in each subsection. But a dissent has no precedential value. Buffington v.

State, 824 So. 2d 576, 580 (Miss. 2002) (noting that “a majority of all sitting judges is

required to create precedent”). Ross also argues that Kramm strengthens his argument that

a defendant cannot be convicted under both subsections. But Kramm solidified that Section

63-11-30 establishes a single offense of DUI with alternative methods of proof. Unlike



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Kramm, who was convicted of two violations of Section 63-11-30 for the same incident,

Ross was convicted of a single violation of Section 63-11-30; so Kramm provides no basis

for reversal of Ross’s conviction.

¶12.   Finally, while not assigning as error the grant of the elements instruction, Ross makes

amorphous complaints that the elements instruction was confusing. An appellant’s brief must

“identify the issues presented for review.” M.R.A.P. 28(a)(3). “No issue not distinctly

identified shall be argued by counsel, except upon request of the court, but the court may, at

its option, notice a plain error not identified or distinctly specified.” Id. Because Ross did not

assign the grant of the elements instruction as an issue on appeal, we do not address his

vague arguments about the instruction to which he never objected at trial.

       II.      Whether the trial court’s imposition of the maximum sentence
                rather than ordering rehabilitation was an abuse of discretion.

¶13.   Ross argues that the trial court erred by imposing the maximum sentence instead of

ordering rehabilitation. The record reveals that Judge Chapman held a thorough sentencing

hearing and carefully considered the sentence to be imposed. The judge said he had reviewed

a presentencing report,1 a letter from Ross’s mother, and Ross’s resumé. Ross’s counsel

stressed that Ross was “as serious an alcoholic” as she ever had encountered. She argued

that, rather than imposing a lengthy sentence, the court should craft a punishment that

addressed his addiction problem. The State, noting that Ross had several prior DUI

convictions and had been on probation for another felony DUI when this offense was

committed, requested the maximum sentence.

       1
           The presentencing report was not included in the record on appeal.

                                                7
¶14.   In contemplating the appropriate sentence, Judge Chapman said that “I honestly don’t

think there is any sentence I can hand down in this case that’s going to make me feel

comfortable . . . .” He recognized that Ross’s resumé showed that he had a good job and a

good education. Judge Chapman observed that the drug and alcohol treatment services

available at the MDOC are limited. He considered ordering Ross to serve a term of years

followed by post-release supervision and drug court. But he also considered the need to

protect society given Ross’s record of five or six DUI convictions,2 one other having been

a felony. Judge Chapman concluded that, “I don’t think it’s a fair sentence for the protection

of society for me to do anything other than send him to the penitentiary for as long as I can,

because I know society is protected then,” and that “I don’t know that they’re protected if I

don’t do that and he gets into some program that’s going to help him and he fails for the fifth,

sixth, or seventh time.” He imposed the maximum sentence of ten years, ordered Ross to pay

a fine and court costs, and ordered that Ross’s vehicle be equipped with an ignition interlock

device for ten years following his release from incarceration.

¶15.   “The general rule in this state is that this Court cannot disturb a sentence on appeal

so long as it does not exceed the maximum term allowed by statute.” Wilkerson v. State, 731

So. 2d 1173, 1183 (Miss. 1999) (citing Hoops v. State, 681 So. 2d 521, 538 (Miss. 1996)).3


       2
        The State referenced additional convictions noted in the presentencing report, but
there was confusion about whether Ross had five or six total DUI convictions.
       3
         “Whe[n] a sentence is ‘grossly disproportionate’ to the crime committed,” it can be
attacked on Eighth Amendment grounds even if it is within the limits prescribed by statute.
Wallace v. State, 607 So. 2d 1184, 1188 (Miss. 1992) (citing Fleming v. State, 604 So. 2d
280, 302 (Miss. 1992)). Ross makes no argument that his sentence is grossly disproportionate
to the crime. His sole contention is that the trial court should have ordered rehabilitation

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Mississippi Code Section 63-11-30(2)(d) (Rev. 2013) prescribes a sentence for fourth offense

DUI of no less than two years and no more than ten years. Ross’s sentence was for the

maximum of ten years. Therefore, his sentence was within the statutory limits and is not

subject to appellate review.

¶16.   Ross’s own argument acknowledges that his sentence was within the trial court’s

discretion; he cites the concurring opinion from the Court of Appeals in which Judge Roberts

acknowledged that, if a sentencing court determines that an offender needs treatment for

addiction, the court “may certainly request or recommend to the MDOC that the offender

receive short term, long term, or therapeutic drug and alcohol treatment while an inmate.”

Jefferson v. State, 958 So. 2d 1276, 1287 (Miss. Ct. App. 2007) (Roberts, J., concurring)

(emphasis added). Judge Roberts’s use of the word “may” recognizes that a judge’s decision

to order substance abuse treatment for an addicted defendant is discretionary, not mandatory.

¶17.   Ross also cites State v. Burns, 723 So. 2d 1013, 1017-20 (La. Ct. App. 1998), in

which a Louisiana appellate court found that a life sentence as an habitual offender was

unconstitutionally excessive for a young defendant whose nonviolent drug crimes stemmed

entirely from his substance abuse problems and who had a good chance of rehabilitation.

Ross relies on Burns to argue that rehabilitation would be the only way to meet the goals of

the criminal justice system in this case. But here, the trial court explicitly considered ordering

a shorter sentence and drug and alcohol rehabilitation but declined to do so because of the




instead of imposing the maximum sentence.

                                                9
danger to society the court found that Ross posed, given his multiple DUI convictions. The

sentence was within the trial court’s discretion because it was within the statutory limits.

                                       CONCLUSION

¶18.   Ross is procedurally barred from arguing that the trial court erred by not polling the

jury to ascertain its unanimity in specifying the particular subsection of the DUI statute Ross

violated. Regarding Ross’s maximum sentence of ten years, because the sentence was within

the statutory limits, its imposition was within the trial court’s discretion.

¶19.   AFFIRMED.

    RANDOLPH, C.J., KING, P.J., COLEMAN,                             MAXWELL,         BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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