                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2003-CT-00540-SCT

JESSIE J. CANNON

v.

STATE OF MISSISSIPPI

                                ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           01/27/2003
TRIAL JUDGE:                                HON. C. E. MORGAN, III
COURT FROM WHICH APPEALED:                  WEBSTER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     RONALD STEPHEN WRIGHT
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:                          DOUG EVANS
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                JUDGMENT OF THE COURT OF APPEALS
                                            REVERSED, AND CONVICTION AND
                                            SENTENCE AFFIRMED - 04/14/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       EASLEY, JUSTICE, FOR THE COURT:

¶1.    Jessie J. Cannon was convicted of felony DUI, third offense, in Webster County Circuit

Court. He appealed, and the appeal was assigned to the Court of Appeals, which reversed the

conviction and remanded the case for a new trial. A divided Court of Appeals held that the trial

court erred: (1) by not granting a sua sponte limiting instruction concerning the testimony of

an officer regarding Cannon’s performance on a portable breath test, and (2) because the

verdict was contrary to the law and the overwhelming weight of the evidence. Cannon v. State,
2004 WL 1381725 (Miss. Ct. App. 2004).             The State filed a motion for rehearing with the

Court of Appeals, which was denied. We granted the State’s petition for a writ of certiorari.

The State asserts that the Court of Appeals’ decision conflicts with prior decisions of this

Court. We agree.

                                                FACTS1

¶2.        On December 15, 2001, Cannon was stopped by Officer Keith Crenshaw of the Eupora

Police Department after he was observed traveling south in the northbound lane of Highway

9, causing another automobile to pull over onto the shoulder to avoid a collision. Cannon, a

diabetic, testified that at the time of the incident, he was en route to a nearby Shell station to

get some orange juice and honey. Feeling nervous, weak and "sort of woozy," he had tested his

blood sugar and found it to be dangerously low just prior to leaving his house.

¶3.        When asked to show his driver's license, Cannon advised Officer Crenshaw that it had

been suspended for driving under the influence of alcohol. He then asked if he could speak to

another Eupora police officer, Perry Yates. Officer Yates arrived shortly thereafter,

accompanied by a reserve officer, Shane Box.

¶4.        Cannon was subjected to a portable breath test at the scene. No other field sobriety tests

were given. The three officers presented testimony about Cannon's demeanor at the time of the

stop. They testified that his eyes were bloodshot and he smelled like alcohol. Officer Yates

noted that his stance and speech were normal. Officer Crenshaw found his speech slightly

slurred.


           1
       The facts are taken directly from the Court of Appeals’ decision. Cannon v. State,
2004 WL 1381725, at *1-2 (Miss. Ct. App. 2004).


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¶5.      None of the officers involved with Cannon's arrest had ever observed an individual

suffering a hyperglycemic incident. Cannon's physician, Dr. James Booth, testified that a blood

sugar reading of 21, which Cannon had recorded prior to the incident, was extremely dangerous

and would produce symptoms which could be mistaken for intoxication. He further stated that

changes in a diabetic's glucose levels can produce ketones, leaving an acetone smell on the

breath, which can be confused with alcohol.

¶6.      After the initial stop, Cannon was transported to the Webster County Sheriff's Office,

where he submitted to testing on the Intoxilyzer 5000 machine. He blew into the machine three

or four times, but was unable to blow long enough to complete the test or generate an accurate

reading. By his own admission, Cannon became angry and argumentative at the sheriff's office

when advised after his unsuccessful attempts to take the Intoxilyzer that he would not be

released. Subsequently, Cannon was placed under arrest, charged with felony DUI and held

overnight in jail.

¶7.      At the time of the incident, Cannon was in poor health. He had seen Dr. Booth several

days previously, on December 10th, as well as on December 17th and 21st. In addition to

diabetes, he suffered from an enlarged heart, congestive heart failure, high blood pressure and

kidney problems. He was taking five different medications. He testified that he had not been

drinking, stating that mixing alcohol with his various medications "will lock my kidneys, and

it will throw my heart out."

¶8.      The State argues that the Court of Appeals erred in rendering its decision and raises the

following contentions:




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        I.     THE CIRCUIT COURT DID NOT ERR IN NOT GRANTING A
               LIMITING INSTRUCTION CONCERNING THE TESTIMONY OF
               OFFICER CRENSHAW.

        II.    THE VERDICT OF THE JURY IS NOT CONTRARY TO THE LAW
               AND TO THE OVERWHELMING WEIGHT OF THE EVIDENCE
               IN THIS CASE.


                                      LEGAL ANALYSIS

        I.     Limiting Instruction

¶9.     Before trial, Cannon filed a motion in limine which sought to prevent the admission of

evidence that he had taken a portable breath test at the scene of the traffic stop. The trial court

ruled that the fact that Cannon submitted to a portable breath test would be admissible, but the

trial court determined that the result of the test was inadmissible.           During the direct

examination of Officer Crenshaw, a reference was made about the test but not the actual result.

When Officer Crenshaw attempted to offer that information, the defense objected.              The

following exchange transpired:

        Q: Okay. And what happened then?
        A: At that time I called Perry to the scene, and he said he would be there in a few
        minutes. And on Eupora 2 arrival, at that time I asked Mr. Cannon if he would
        submit to a portable intoxilizer test, and he said he would. And I did submit him
        to that, and he run high enough on it that it -
        MR. WRIGHT [DEFENSE COUNSEL]: Objection, Your Honor.
        BY THE COURT: Sustained.

¶10.    The Court of Appeals held that the issue was not preserved for appeal because Cannon

failed to request a cautionary instruction or mistrial.   However, the Court of Appeals further

held:

               Procedural bar notwithstanding, once Crenshaw's testimony went beyond
        the parameters set in the motion in limine, the circuit judge should have given,


                                                4
        sua sponte, a specific limiting or cautionary instruction to the jury. See Rose v.
        State, 846 So.2d 276(¶ 4)(Miss.Ct.App.2002)(even though defendant charged
        with firearms violation not prejudiced by testimony that officers smelled
        marijuana burning in his car, trial judge should have issued, sua sponte, a
        limiting instruction concerning the marijuana smell).

Cannon, 2004 WL 1381725, at *3.

¶11.    The State argues that the trial court had no affirmative duty to offer jury instructions sua

sponte or to suggest instructions for the parties to consider. King v. State, 857 So.2d 702,

720 (Miss. 2003). The State distinguishes Rose from the case at bar. In Rose, the Court held

that the officers’ detection of a marijuana odor was admissible to show probable cause for

stopping the defendant. Rose, 846 So.2d at 278.            When Rose exited the vehicle, a cartridge

fell to the ground, and one of the officers observed a gun stuck in the driver’s seat. Rose’s

conviction for a convicted felon in possession of a firearm was affirmed on appeal. Id. In the

case sub judice, Officer Crenshaw’s testimony did not involve another crime, and there was no

issue regarding the admissibility of the evidence.

¶12.    The State further argues that the trial court did instruct the jury, before it retired to

deliberate, that it was “to disregard all evidence which I excluded from consideration during

the course of the trial.” See Cavett v. State, 717 So.2d 722,729 (Miss. 1998) (there exists the

presumption that jurors respect the law as they are instructed by the Court).

¶13.    The Court of Appeals determined that Holmes v. State, 740 So.2d 952 (Miss. Ct. App.

1999), is analogous to the case at hand. In Holmes, the Court of Appeals held that the trial

court erred in allowing testimony regarding a horizontal gaze nystagmus (HGN) test after

having granted a motion to suppress that evidence. Id. at 959. The State contends that Holmes



                                                     5
can be distinguished as the issue there was the trial court’s admission of evidence. Here, there

was no issue regarding admissibility of evidence since the trial court sustained Cannon’s

objection.

¶14.    In his dissenting opinion, Court of Appeals Judge Griffis stated:

        [P]rocedural bar ... prevents our review of this issue. Indeed, the defendant's
        attorney is not a mere spectator at the trial. The defendant's attorney, just as the
        prosecutor, must participate in the trial by offering objections or motions that
        are necessary to ensure a fair trial. As the majority correctly points out, this
        Court has previously held that "[t]he law of this State is quite clear that, in order
        to preserve an error of this nature for review on appeal, defense counsel must
        offer a mistrial motion after it is established that the evidence was, in fact,
        improper." Jones v. State, 724 So.2d 1066, 1069 (¶ 11) (Miss.Ct.App.1998)
        (citing White v. State, 532 So.2d 1207, 1216 (Miss.1988)).

                 At that moment, the defense had a choice to (a) ask for a limiting
        instruction, which may again highlight the objectionable testimony; (b) move the
        court for a mistrial; or (c) do nothing and continue with the testimony. The
        defense chose the third option, and this choice waived the error for our appellate
        review.

Cannon, 2004 WL 1381725, at *5.

¶15.    We find that, although reference was made to the result of the portable breath test, the

actual result was not revealed. The defense objected before the officer could state the result

of the test.   The information that had been limited by the motion in limine did not come into

evidence for the jury to hear.      Further, the defense did not preserve the issue for appeal by

failing to request a cautionary instruction from the trial court. The Court of Appeals erred in

reversing the conviction on this assignment of error and remanding the case to the trial court.

        II.     Overwhelming Weight of the Evidence

¶16.    The Court of Appeals found that the verdict was against the overwhelming weight of the

evidence. Specifically, the Court of Appeals held:


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                Looking, as we must, at all evidence in a light most consistent with the
       jury verdict, there is little in the record to support a guilty verdict in this case.
       No results were obtained from the Intoxilyzer 5000 tests administered at the
       sheriff’s office. Cannon’s speech was variously described as normal and only
       slightly slurred.       The officers’ testimony also included the ambiguous
       observations that his eyes were bloodshot and he smelled of alcohol. Despite
       the circuit court’s ruling on Cannon’s motion in limine, the jury further heard
       Officer Crenshaw’s testimony about the results of the portable breath test given
       at the time of the traffic stop, erroneously admitted without a specific limiting
       or cautionary instruction.

               There is, however, substantial evidence contrary to the State’s case.
       Cannon denied drinking on the evening in question; indeed, he seemed acutely
       aware of the ramifications of mixing alcohol with the various prescription
       medications he was taking. Evidence was introduced that Cannon suffered from
       diabetes and other serious health problems. He had left his house to get orange
       juice and honey, which his doctor recommended when his glucose levels were
       too low. His physician testified that the symptoms of a sudden change in
       glucose levels in a diabetic can be mistaken for intoxication.

Cannon, 2004 WL 1381725, at *4.

¶17.   The State contends that the Court of Appeals misapprehended the applicable law. The

State relies on Kingston v. Stat e, 846 So.2d 1023 (Miss. 2003), in asserting that the Court of

Appeals usurped the role of the jury. In Kingston, we stated:

       The jury is charged with weighing the conflicting evidence of witnesses.
       Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). Furthermore, this Court
       has stated:

               Jurors are permitted, indeed have the duty, to resolve the
               conflicts in the testimony they hear. They may believe or
               disbelieve, accept or reject the utterances of any witness. No
               formula dictates the manner in which jurors resolve conflicting
               testimony into finding of fact sufficient to support their verdict.
               That resolution results from the jurors hearing and observing the
               witnesses as they testify, augmented by the composite reasoning
               of twelve individuals sworn to return a true verdict. A reviewing
               court cannot and need not determine with exactitude which
               witness or what testimony the jury believed or disbelieved in



                                                 7
               arriving at its verdict. It is enough that the conflicting evidence
               presented a factual dispute for jury resolution.

       Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

Kingston, 846 So.2d at 1026.

¶18.   In his dissenting opinion, Judge Griffis stated:

                On the second issue, there was sufficient evidence before the jury to
       support the jury's verdict of guilty. Officer Crenshaw testified that he observed
       Cannon's vehicle cause another car to take evasive action to avoid a collision.
       When he stopped Cannon's vehicle, he learned that Cannon was driving while his
       license was suspended for driving under the influence. Officer Crenshaw
       testified that Cannon's speech was slurred. Also, Officer Crenshaw testified that
       he was familiar with and had experience with people suffering from diabetes and
       low blood sugar.

               Cannon asked to speak to Officer Yates, and Cannon asked Officer Yates
       if the officer could "help him out with that particular DUI." Officer Crenshaw,
       Officer Yates and Reserve Officer Shane Box testified about Cannon's
       bloodshot eyes and that they detected the smell of alcohol on Cannon's breath.
       Officer Yates testified that he was of the opinion that Cannon was intoxicated.

               The majority correctly states the testimony that Cannon presented     in his
       defense. Nevertheless, there was sufficient evidence to present this case     to the
       jury, which the court did. The jury considered the evidence and returned a    verdict
       against Cannon, thereby rejecting Cannon's evidence and the evidence           relied
       upon by the majority.

                I am of the opinion that, accepting all of the evidence favorable to the
       State as true and giving the State all reasonable inferences flowing from that
       evidence, there was sufficient evidence to support the jury's verdict. As to the
       weight of the evidence, I find that the verdict was not so contrary to the weight
       of the evidence that to allow it to stand would sanction an unconscionable
       injustice, which is required for this Court to disturb the jury's verdict on appeal.
       See Herring v. State, 691 So.2d 948, 957 (Miss.1997) (discussing the required
       standard of review).

Cannon, 2004 WL 1381725, at *5.




                                                     8
¶19.     A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749

So.2d 123, 127 (Miss. 1999).           A reversal is warranted only if the trial court abused its

discretion in denying a motion for new trial. Id.

¶20.     This Court has held that a new trial will not be given unless the verdict is so contrary to

the overwhelming weight of the evidence that an unconscionable injustice would occur by

allowing the verdict to stand.       Groseclose, 440 So.2d at 300. However, if a jury verdict

convicting a defendant is against the overwhelming weight of the evidence, then the remedy is

to grant a new trial. Collier v. State, 711 So.2d 458, 461 (Miss. 1998).

¶21.     In the case sub judice, the verdict is consistent with the weight of the evidence, and no

new trial is warranted.      The State asserts that reference to the possibility of confusing the

alcohol odor with that of acetone, which can be present in episodes of hyperglycemia, is

erroneous because Cannon claimed to be suffering from hypoglycemia, a low blood glucose

incident.      The State also points out, and as stated in Judge Griffis’s dissent, Officer Yates

testified that Cannon asked him for assistance with that particular DUI.

¶22.     Officer Yates stated that Officer Crenshaw called him and requested his assistance

because Cannon had requested Officer Yates come to where he was stopped. He testified that

he had known Cannon for approximately 2 or 3 years.             Officer Yates testified that when he

arrived, Cannon talked to him and asked if he “could help him out with that particular DUI.”

Officer Yates testified that he could smell alcohol and observed bloodshot eyes. Cannon never

told Officer Yates that he had a medical emergency nor did he request medical attention.

Cannon was transported to the Webster County Sheriff’s Office where he was tested on an

intoxilizer.

                                                    9
¶23.       Officer Crenshaw testified that when he stopped Cannon he asked for his driver’s

license.     Cannon informed him that it was suspended for DUI.        Cannon then asked Officer

Crenshaw to see if Officer Yates could come to the scene. After Cannon talked with Officer

Yates, Cannon was transported to the Webster County Jail. Officer Crenshaw testified that he

detected the smell of alcohol on Cannon’s breath.           He observed bloodshot eyes and slight

slurred speech, but Cannon spoke fairly well.

¶24.       Dr. James Booth testified that he was Cannon’s physician treating his diabetes.

According to Cannon, his blood sugar level was 21 at the time he was stopped. However, Dr.

Booth had no record of Cannon’s blood sugar level when he saw him the next day and had no

idea what it was when Cannon was arrested.          When asked on cross by the State, Dr. Booth

stated that a blood sugar level of 21 would be low, critically low. He stated that hyperglycemic

is having too much sugar and hydpoglycemic is having too low sugar in the body. When asked

by the defense, “the smell of a person who is in a [sic], having a diabetic hypoglycemic

incident, would there be any odor.”       Dr. Booth responded, “No that is in hyperglycemic.”

(emphasis added).

¶25.       Therefore, we find that the Court of Appeals erred in reversing the conviction on this

assignment of error and remanding the case for a new trial court.

                                           CONCLUSION

¶26.       The Court of Appeals erred in reversing the judgment of the trial court. Therefore, the

judgment of the Court of Appeals is reversed and rendered as discussed in the opinion above,

and the judgment of the Webster County Circuit Court is affirmed.




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¶27. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.
CONVICTION OF FELONY DUI AND SENTENCE OF FIVE (5) YEARS, WITH THE
LAST TWO (2) YEARS POST-RELEASE, WITH CONDITIONS, IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TOGETHER WITH PAYMENT
OF A FINE OF $2,000.00, ALL COSTS AND ATTORNEY FEES, AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




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