         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-KM-01802-COA

MALCOLM CAMERON A/K/A MALCOLM                                                APPELLANT
ANDREW CAMERON

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                           11/25/2014
TRIAL JUDGE:                                HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                  MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    KEVIN DALE CAMP
                                            JARED KEITH TOMLINSON
ATTORNEY FOR APPELLEE:                      NONE
CITY PROSECUTOR:                            BOTY MCDONALD
NATURE OF THE CASE:                         CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION:                    CONVICTED OF DRIVING UNDER THE
                                            INFLUENCE, FIRST OFFENSE, AND
                                            SENTENCED TO FORTY-EIGHT HOURS IN
                                            THE CUSTODY OF SHERIFF OF MADISON
                                            COUNTY, WITH THE SENTENCE
                                            SUSPENDED FOR TWO YEARS, AND
                                            CONVICTED OF CARELESS DRIVING
                                            AND SENTENCED TO PAY A $50 FINE
DISPOSITION:                                AFFIRMED - 09/29/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., MAXWELL AND FAIR, JJ.

       MAXWELL, J., FOR THE COURT:

¶1.    The Fourth Amendment prohibits unreasonable searches and seizures, including

unreasonable traffic stops. But if an officer had probable cause to believe a traffic violation

occurred, the traffic stop is reasonable. Here, Malcolm Cameron never raised a Fourth
Amendment challenge to the stop. Still, the record shows the officer pulled over Cameron

after watching him swerve in his vehicle. So Cameron’s non-asserted argument that the

exclusionary rule should bar evidence obtained following the stop fails.

¶2.      We also find Cameron’s argument that there was insufficient evidence of his resulting

DUI conviction also lacks merit. We thus affirm.

                               Facts and Procedural History

         I.     Traffic Stop and Observation Room

¶3.      On March 16, 2013, Officer Ryan Ainsworth received a call from dispatch that a

complainant reported a GMC Sierra truck driving carelessly. Officer Ainsworth first saw the

truck—later confirmed to be driven by Cameron—in the McDonald’s drive-thru off of

Highway 51 in Madison, Mississippi. After Cameron went through the drive-thru, he turned

right on Highway 51, and then left on Ford Street. As Officer Ainsworth followed Cameron,

he noticed his truck swerve to the left on Ford Street, so he pulled Cameron over. Officer

Ainsworth immediately “observed the overwhelming odor of an intoxicating beverage

emitting from within the vehicle.” He also noticed Cameron’s eyes were “bloodshot and

glassy.” Cameron failed a preliminary breath test, so Officer Ainsworth conducted a variety

of field sobriety tests. Cameron exhibited several indicators of intoxication on these tests as

well.1


         1
        On the horizontal-gaze-nystagmus test, Cameron displayed six out of six clues; on
the walk-and-turn test, he displayed four out of eight clues; and on the one-leg-stand test, he
showed three out of four clues.

                                               2
¶4.    Officer Ainsworth arrested Cameron for careless driving and driving under the

influence (DUI). After booking, Officer Ainsworth sat in the observation room with

Cameron for the required twenty minutes before administering the Intoxilyzer 8000 test. But

as Officer Ainsworth began to read Cameron the implied-consent warning, Cameron placed

a penny in his mouth. After instructing Cameron to remove the penny, he started the twenty-

minute clock over. By the end of the second observation period, Cameron refused to

cooperate by not blowing hard enough into the intoxilyzer, so the results of the test read “no

sample given.”

       II.    Convictions and Appeals

¶5.    Cameron was charged with careless driving and DUI refusal, first offense. After

pleading nolo contendere in municipal court, Cameron appealed to county court, which held

a de novo trial on the two charges. Officer Ainsworth was the only person to testify. The

videos of the traffic stop and the observation room were also admitted. After being found

guilty again, Cameron appealed to the circuit court, which affirmed. Cameron again

appeals.2


       2
          The State failed to file an appellee brief. And we generally treat such failure as
tantamount to a confession of error. But we will not automatically reverse if we can “say
with confidence that the case should be affirmed.” Carlson v. City of Ridgeland, 131 So. 3d
1220, 1222 (¶7) (Miss. Ct. App. 2013); see also Woods v. State, 2014-KM-01807 n.2 (Miss.
Ct. App. 2015) (This court has repeatedly confronted DUI appeals from the City of
Ridgeland where no appellee’s brief was filed). And while the Mississippi Supreme Court
now mandates that “‘all prosecutions shall be carried on in the name and by the authority of
the ‘State of Mississippi,’” Cook v. State, 159 So. 3d 534, 534 n.1 (Miss. 2015) (quoting
Miss. Const. art. 6, § 169), the Office of the Attorney General of the State of Mississippi has

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                                         Discussion

       I.       Probable Cause for the Traffic Stop – Careless Driving

¶6.    Cameron argues for the first time on appeal that there was no probable cause for the

traffic stop.

¶7.    We emphasize that Cameron never challenged the validity of the traffic stop at the

trial level. No motion to suppress was filed. Nor did Cameron object to any evidence on

Fourth Amendment grounds. And he has not argued any evidence was admitted in plain

error. So this issue is procedurally barred. See Lawrence v. State, 124 So. 3d 91, 94-95 (¶10)

(Miss. Ct. App. 2013). Aside from this bar, Cameron’s lack-of-probable-cause argument

fails because there was no Fourth Amendment violation warranting suppression of the

evidence.

¶8.    “The Fourth Amendment to the United States Constitution and Article 3[,] [S]ection

23 of the Mississippi Constitution protect individuals from unreasonable searches and

seizures.” Mosley v. State, 89 So. 3d 41, 45 (¶12) (Miss. Ct. App. 2011) (citing U.S. Const.

amend. IV; Miss. Const. art. 3, § 23). “Traffic stops are Fourth-Amendment ‘seizures.’” Id.

(citing Tate v. State, 946 So. 2d 376, 382 (¶17) (Miss. Ct. App. 2006)). And the “fruit of the

poisonous tree” doctrine “makes inadmissible tangible evidence obtained incident to an

unlawful search or seizure.” Id. at (¶13) (citing Marshall v. State, 584 So. 2d 437, 438 (Miss.




notified this court it will not appear in misdemeanor appeals originating from municipal
court.

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1991)). So if Cameron’s traffic stop was unreasonable, then the evidence obtained as a result

of the stop would be subject to this exclusionary rule. See Clack v. City of Ridgeland, 139

So. 3d 778, 782 (¶19) (Miss. Ct. App. 2014) (noting that traffic stops must be reasonable).

Typically, “a stop is reasonable if a law-enforcement officer has probable cause to believe

that a traffic violation has occurred.” Id.

¶9.    Officer Ainsworth testified he stopped Cameron for the offense of careless driving.3

The officer was first notified by dispatch that another driver reported Cameron’s truck

driving erratically. And as Officer Ainsworth followed Cameron, he saw his truck “veer to

the left side of the roadway.” This caused Cameron’s truck “to occupy both [the] east and

westbound lanes [on] Ford Street.” As further support, a video of the traffic stop was

admitted into evidence. It showed Cameron’s truck swerve left. From this evidence, we

find there was probable cause for the traffic stop. And absent a Fourth Amendment

violation, the exclusionary rule does not apply.

       II.    Sufficiency of the Evidence for the DUI Conviction

¶10.   Cameron next claims there was insufficient evidence to support his DUI conviction.

Considering the legal sufficiency of the evidence, “the critical inquiry is whether the

evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and



       3
          “Any person who drives any vehicle in a careless or imprudent manner, without due
regard for the width, grade, curves, corner, traffic and use of the streets and highways and
all other attendant circumstances is guilty of careless driving.” Miss. Code Ann. § 63-3-1213
(Rev. 2013). The fine for a careless-driving conviction is $5 to $50. Id.

                                              5
that he did so under such circumstances that every element of the offense existed.’” Bush

v. State, 895 So. 2d 836, 843-44 (¶16) (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886,

889 (Miss. 1968)). The key inquiry is “whether, after reviewing 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.” Ellis v. State, 77 So. 3d 1119, 1126 (¶29)

(Miss. Ct. App. 2011) (citing Bush, 895 So. 2d at 843 (¶16)). “If the evidence against the

defendant is such that ‘reasonable and fair-minded [jurors] in the exercise of impartial

judgment might reach different conclusions on every element of the offense,’ we will deem

the evidence sufficient.” Id. (quoting Bush, 895 So. 2d at 843 (¶16)).

¶11.   Cameron was convicted under Mississippi Code Annotated section 63-11-30(1)(a)

(Rev. 2013). This statute makes it “unlawful for a person to drive or otherwise operate a

vehicle within this state if the person . . . [i]s under the influence of intoxicating liquor[.]”

Id. This provision is often referred to as “common law DUI.” Ellis, 77 So. 3d at 1126 (¶30).

“Common law DUI is proven when a defendant’s blood alcohol results are unavailable or the

defendant’s BAC tests under the legal limit, 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.

¶12.   The evidence was sufficient to show Cameron drove under the influence of alcohol.

In addition to seeing Cameron swerve while driving, which was confirmed by video, after

stopping Cameron, the officer smelled an overwhelming odor of alcohol and noticed his eyes


                                               6
were glassy and bloodshot. The results of the field sobriety tests also indicated intoxication.

And Cameron tried to skew the intoxilyzer by sucking on a penny, which can also be seen

on video. Afterwards, Cameron gave an insufficient breath sample. “If a person under arrest

refuses to submit to a chemical test[,] evidence of refusal shall be admissible in any criminal

action[.]” Miss. Code Ann. § 63-11-41 (Rev. 2013).

¶13.   We find this evidence was sufficient for the judge to determine Cameron guilty of

DUI. We thus affirm.

¶14. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND
SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE SHERIFF OF
MADISON COUNTY, WITH THE SENTENCE SUSPENDED FOR TWO YEARS,
AND CONVICTION OF CARELESS DRIVING AND SENTENCE TO PAY A $50
FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
JAMES AND WILSON, JJ., CONCUR.




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