        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KM-01024-COA




KYLE MILLIE PLATT A/K/A KYLE M. PLATT                                      APPELLANT
A/K/A KYLE MILLE PLATT A/K/A KYLE
PLATT A/K/A KYLE MILLE’ PLATT

v.


STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                         05/16/2013
TRIAL JUDGE:                              HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   DAVID S. VAN EVERY SR.
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
DISTRICT ATTORNEY:                        MICHAEL GUEST
NATURE OF THE CASE:                       CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION:                  CONVICTED OF DRIVING UNDER THE
                                          INFLUENCE, FIRST OFFENSE, AND
                                          SENTENCED TO FORTY-EIGHT HOURS,
                                          WITH FORTY-EIGHT HOURS SUSPENDED
DISPOSITION:                              AFFIRMED – 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       IRVING, P.J., FOR THE COURT:

¶1.    Kyle Platt was charged with driving under the influence, and the Madison County

Justice Court found him guilty of common law DUI pursuant to Mississippi Code Annotated

section 63-11-30(1)(a) (Rev. 2013). Platt appealed to the County Court of Madison County.

During trial, after Platt’s blood test results were admitted into evidence, the county court
granted the State’s ore tenus motion to amend Platt’s charges to include per se DUI pursuant

to Mississippi Code Annotated section 63-11-30(1)(c) (Rev. 2013). The county court found

Platt guilty of common law DUI. Platt appealed to the Madison County Circuit Court, which

affirmed the judgment of the county court. Platt now appeals the judgment of the circuit

court, arguing that (1) the evidence was insufficient to support his conviction; (2) the county

court erred by finding that there was probable cause for the stop; (3) the county court erred

by admitting the blood test results; and (4) the county court erred by amending the charges.

¶2.     Finding no error, we affirm.

                                           FACTS

¶3.     On November 3, 2009, Mark Sandridge, a deputy sheriff of Madison County, arrested

Platt for DUI after stopping Platt for driving with an expired tag.1 Before arresting Platt,

Deputy Sandridge administered several field sobriety tests, including two portable breath

tests (PBT) that yielded positive results. Deputy Sandridge also administered the horizontal

-gaze-nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. Platt failed

the HGN test and the walk-and-turn test, although he successfully passed the one-leg-stand

test.

¶4.     Following the arrest, Deputy Sandridge transported Platt to the Madison County

Detention Center (MCDC), where nurse Mildred Taylor collected a blood sample from Platt

to determine Platt’s blood-alcohol-concentration (BAC) level. Taylor cleaned Platt’s arm


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        Platt was ticketed for the expired-tag offense, although the charge was later
dismissed on motion by the State.

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with an alcohol swab prior to collecting the blood sample. The blood test revealed a BAC

level of nine one-hundredths percent (.09%).

¶5.    Following several continuances, on February 9, 2012, the justice court found Platt

guilty of common law DUI. Platt appealed, and the case proceeded to trial de novo in the

county court. During trial, Deputy Sandridge testified that he was traveling southbound on

Old Canton Road in Ridgeland, Mississippi, when he observed Platt, who was traveling

ahead of him on Old Canton Road, abruptly merge into a left-turn lane and then make a left

turn into a Kangaroo Crossings convenience store. According to Deputy Sandridge, when

Platt’s vehicle made the abrupt left into the turn lane, he noticed Platt’s expired tag, and this

caused him to initiate a traffic stop. Deputy Sandridge parked behind Platt’s vehicle in the

store’s parking lot and exited his patrol car to speak with Platt, who was attempting to enter

the store. Deputy Sandridge testified that while speaking with Platt, he smelled a strong odor

of alcohol on Platt’s breath and that Platt informed him that Platt had consumed alcoholic

beverages about an hour prior to being stopped. According to Deputy Sandridge, during the

stop, he noticed that Platt’s reflexes seemed “depressed and sluggish[,] [and] [h]is speech

was mumbled and slurred.” Deputy Sandridge testified that Platt admitted that he had been

driving with an expired tag. Deputy Sandridge also testified that after he stopped Platt, he

noticed a half-empty, open beer container in Platt’s vehicle.

¶6.    During the State’s case, the State introduced evidence of Platt’s blood test results

through the testimony of Emily J. Harper, who analyzed Platt’s blood sample and prepared

the report of the results of her analysis. The report was admitted into evidence. On cross-

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examination by Platt’s counsel, Harper testified that she had no independent knowledge

regarding the calibration of the machine used to test Platt’s blood sample and that she was

sure that there was a certificate of calibration showing the date of the last calibration,

although she was unable to produce that document at trial.

¶7.    Before resting its case, the State made an ore tenus motion, based on the blood test

results, to amend the charges against Platt to include per se DUI. Platt objected to the

amendment on jurisdictional grounds, arguing that the motion to amend came too late

because the State had completed the presentation of its evidence before moving to amend.

The county court granted the State’s motion, finding that the amendment would neither

enhance Platt’s charges nor prejudice Platt’s defense. However, before granting the motion,

the county court gave Platt the option of continuing the case in order to prepare his defense,

and Platt declined.

¶8.    After the State rested its case, Platt testified in his own defense. He testified that he

was traveling northbound on Old Canton Road prior to making an initial right turn followed

by a second right turn into the store parking lot. Platt stated that he did not see Deputy

Sandridge’s patrol car until Platt was opening the door to enter the store. Platt also stated

that he had no knowledge of an open beer container being in his vehicle. Platt indicated that

he believed the alcohol from the swab applied by Taylor mixed in with his blood sample,

resulting in an increased BAC level. Platt adduced testimony from Kirk Rosenhan, an expert

in the field of DUI. Rosenhan testified that the swab may have contaminated Platt’s blood

sample and may have led to inaccurate results.

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¶9.     At the conclusion of the evidence, the county court found Platt guilty of common law

DUI only. Platt appealed to the Madison County Circuit Court, which affirmed.

                                       DISCUSSION

       I.     Sufficiency of the Evidence

¶10.   A person is guilty of common law DUI if he “drive[s] or otherwise operate[s] a

vehicle . . . under the influence of intoxicating liquor.” Miss. Code Ann. § 63-11-30(1)(a).

In Robinson v. State, 794 So. 2d 293, 296 (¶12) (Miss. Ct. App. 2001) (quoting Reed v. State,

749 So. 2d 179, 181 (¶3) (Miss. Ct. App. 1999)), this Court stated:

       The standard of review for determining whether the evidence is legally
       sufficient to sustain a conviction in a case tried without a jury is the same as
       the standard of reviewing a denial of a motion for a judgment notwithstanding
       the verdict. This Court may only reverse “where one or more of the elements
       of the offense charged is lacking to such a degree that reasonable jurors could
       only have found the defendant not guilty.”

This court is required to view the evidence in the light most favorable to the prosecution. Id.

at (¶16).

¶11.   In this case, Deputy Sandridge testified that he noticed Platt’s expired tag when Platt

abruptly merged into a left-turn lane and then turned into the parking lot of a convenience

store. Platt admitted that he had consumed alcoholic beverages about an hour prior to being

stopped and that he had been driving with an expired tag. As stated, Platt had no explanation

for the open beer container found in his vehicle on the night he was arrested. Additionally,

Platt acknowledges that the only field sobriety test he passed was the one-leg-stand test,

although he insists that passing the one-leg-stand test is evidence that he was not driving


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under the influence of alcohol. As noted, Deputy Sandridge testified that Platt’s speech was

slurred and that Platt swayed back and forth as he and Platt conversed in the store’s parking

lot. After reviewing the record, we find that the evidence was sufficient to sustain Platt’s

DUI conviction. This issue is without merit.

       II.    Probable Cause

¶12.   “‘Determinations of reasonable suspicion and probable cause should be reviewed de

novo.’ While we review the lower court's legal conclusions regarding probable cause de

novo, we ‘must accept the fact[-]findings that led the lower court to that legal conclusion

unless there is clear error in those fact[-]findings.’” Martin v. State, 43 So. 3d 533, 534 (¶4)

(Miss. Ct. App. 2010) (citations omitted). “As a general matter, the decision to stop an

automobile is reasonable where the police have probable cause to believe that a traffic

violation has occurred.” Mosley v. State, 89 So. 3d 41, 46 (¶14) (Miss. Ct. App. 2011)

(quoting Whren v. United States, 517 U.S. 806, 810 (1996)).

¶13.   Here, Deputy Sandridge testified that he noticed Platt’s expired tag when Platt

abruptly merged into a left-turn lane and then turned into the store’s parking lot. Deputy

Sandridge stated that this observation caused him to stop Platt. On appeal, Platt argues that

Deputy Sandridge lacked probable cause to stop him because Deputy Sandridge was

traveling northbound on Old Canton Road while he was traveling southbound. Platt insists

that it was impossible for Deputy Sandridge to have seen his expired tag because he and

Deputy Sandridge were traveling in opposite directions. However, this argument belies

Platt’s own admission, made during the traffic stop as well as during trial in the county court,

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that he was driving with an expired tag on the night he was arrested for DUI. Moreover,

when the evidence is conflicting, it is the providence of the fact-finder to resolve the conflict.

See Langston v. State, 791 So. 2d 273, 280 (¶14) (Miss. Ct. App. 2001) (citing Billiot v.

State, 454 So. 2d 445, 463 (Miss. 1984)). Here the conflicting evidence was resolved against

Platt. This issue is without merit.

       III.    Blood Test Results

¶14.   “The standard of review for admission of evidence is abuse of discretion.” Debrow

v. State, 972 So. 2d 550, 552 (¶6) (Miss. 2007) (citing Smith v. State, 839 So. 2d 489, 494

(¶6) (Miss. 2003)). “[R]eversal will be appropriate only when an abuse of discretion

resulting in prejudice to the accused occurs.” Wash v. State, 790 So. 2d 856, 858 (¶5) (Miss.

Ct. App. 2001) (quoting Sturdivant v. State, 745 So. 2d 240, 243 (¶10) (Miss. 1999)).

¶15.   Platt argues that the county court erred by admitting the blood test results because

there was uncontradicted, uncontested evidence that the blood sample used to test his BAC

level was contaminated. Platt asks us to find that “a reasonable doubt and more has been

raised about the validity and trustworthiness of the blood test results considering the

contamination of the blood.” In response, the State argues that Platt failed to object to the

admissibility or reliability of the blood test results during trial, and that Platt is, therefore,

procedurally barred from raising this issue on appeal. Additionally, the State points out that

Platt also failed to object to the State’s failure to present Taylor at trial.

¶16.    The record reveals that Platt lodged a “continuing objection” to the blood test results

on the ground that the evidence at trial did not show that the machine used to test his blood

                                                7
had been properly calibrated. At trial Platt objected to admission of the blood test results on

the basis that the machine used to analyze the blood sample allegedly had not been

calibrated. On appeal, he argues that admission was improper because the sample was

allegedly contaminated. It is well-settled law that one cannot offer and argue on appeal a

different basis than what was offered at trial in objecting to admission of evidence. Ratcliff

v. State, 906 So. 2d 133, 137 (¶11) (Miss. Ct. App. 2004) (citation omitted). That is exactly

what Platt is attempting to do with his argument on appeal that the trial court erred by

admitting the results of the blood sample because of overwhelming evidence of its

contamination. Therefore, we agree with the State that he is procedurally barred from raising

this issue on appeal. Procedural bar notwithstanding, we do not find that the county court

abused its discretion in admitting the blood test results. There was ample evidence that the

sample was not contaminated and that the machine used to analyze the blood sample had

been properly calibrated. This issue is without merit.

       IV.    Amendment

¶17.   As previously indicated, section 63-11-30(1)(a) makes it “unlawful for any person to

drive or otherwise operate a vehicle . . . under the influence of intoxicating liquor.” Section

63-11-30(1)(c) makes it “unlawful for any person to drive or otherwise operate a vehicle.

[with] an alcohol concentration of eight one-hundredths percent (.08%) or more for persons

who are above the legal age.”

¶18.   In a case cited extensively by Platt, Young v. City of Brookhaven, 693 So. 2d 1355,

1357 (Miss. 1997), the State prosecuted a defendant for both common law DUI (under

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section 63-11-30(1)(a)) and per se DUI (under section 63-11-30(1)(c)). Id. The defendant

was convicted of DUI and he appealed, arguing that the State’s prosecution under both

subsections prejudiced his defense. Id. There, after extensive analysis, our supreme court

found no merit in the defendant’s argument and held that “[section] 63-11-30 merely sets

forth numerous methods of committing the same crime.” Id. at 1358.

¶19.   In Watts v. State, 828 So. 2d 835, 842 (¶19) (Miss. Ct. App. 2002), this court stated,

“[An amendment] is permissible if it does not materially alter facts which are the essence of

the offense . . . as . . . originally [charged] or materially alter a defense to [a charge] as it

originally stood so as to prejudice the defendant’s case.”

¶20.   On appeal, Platt argues that “[o]ne would assume that on an appeal of the common

law conviction, being a trial de novo, there would only be a retrial of the [j]ustice [c]ourt’s

trial pursuant to the common law[-]DUI charge.” He insists that to allow the county court

to amend the charges “would be a return to a trial by ambush.” In response, the State argues

that there is no distinction between common law DUI and per se DUI that would support

Platt’s argument that he received an unfair trial. The State also argues that this issue is moot

because the county court did not find Platt guilty of per se DUI. We agree.

¶21.   The county court allowed the charges to be amended to reflect the evidence presented

during trial, and the amendment did not materially alter the charges made against Platt or the

essence of the offense that Platt was charged with. Although Platt argues that his defense

was prejudiced because he was not given an opportunity to “attack[ ] the machine, [and

present] possible expert testimony on issues of science as compared to common law DUI,”

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the record shows otherwise. During trial, Platt adduced testimony from Harper regarding the

certification of the machine used to test his blood. Furthermore, Platt adduced testimony,

through Rosenhan, in an attempt to contradict the blood test results. Additionally, although

given an opportunity to do so, Platt declined to accept the court’s offer to continue the trial

to allow him time to prepare any additional defense he may have deemed necessary as a

result of the amendment. This issue is without merit. Accordingly, we affirm.

¶22. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND
SENTENCE OF FORTY-EIGHT HOURS, WITH FORTY-EIGHT HOURS
SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.




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