        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-KA-02048-COA

CLARENCE DWAYNE JEFFERSON A/K/A                                         APPELLANT
CLARENCE D. JEFFERSON A/K/A CLARENCE
JEFFERSON

v.

STATE OF MISSISSIPPI                                                      APPELLEE


DATE OF JUDGMENT:                        10/18/2013
TRIAL JUDGE:                             HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:               MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:                       HALDON J. KITTRELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF FELONY DUI AND
                                         SENTENCED AS A HABITUAL OFFENDER
                                         TO FIVE YEARS IN THE CUSTODY OF
                                         THE MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS, WITH ONE YEAR
                                         SUSPENDED AND FOUR YEARS TO
                                         SERVE, AND ORDERED TO PAY A $1,000
                                         FINE AND $1,000 TO THE MARION
                                         COUNTY PUBLIC DEFENDER’S FUND
DISPOSITION:                             AFFIRMED: 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

      FAIR, J., FOR THE COURT:

¶1.   Clarence Jefferson was convicted of felony DUI, which required proof that he was

driving while intoxicated and that he had two prior DUI convictions within the last five
years. Jefferson contends that the evidence against him was insufficient in both respects.

We disagree, so we affirm his conviction and sentence.

                                       DISCUSSION

       1. The Sufficiency of the Evidence Test

¶2.    When the sufficiency of the evidence is challenged, the issue before this Court on

appeal is whether the evidence shows “beyond a reasonable doubt that [the] accused

committed the act charged, and that he did so under such circumstances that every element

of the offense existed.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation

omitted). “[W]here the evidence fails to meet this test it is insufficient to support a

conviction.” Id.

¶3.    But, as the United States Supreme Court has explained, a court should not “ask itself

whether it believes that the evidence established guilt beyond a reasonable doubt.” Id.

(quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)) (emphasis in original; internal

quotation marks omitted). “Instead, the relevant question is whether, after viewing 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.” Id. (quoting Jackson,

443 U.S. at 315).

¶4.    A reviewing court must reverse the conviction and render a judgment of acquittal if

“the facts and inferences . . . point in favor of the defendant on any [one] element of the

offense with sufficient force that reasonable men could not have found beyond a reasonable

doubt that the defendant was guilty.” Id. (citation and internal quotation marks omitted).

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       2. The Definition of Felony DUI

¶5.    The crime of felony DUI is defined by statute.            Jefferson was charged under

Mississippi Code Annotated section 63-11-30 (Rev. 2013), which at the time of the alleged

offense provided in relevant part:

       (1) It is unlawful for any person to drive or otherwise operate a vehicle within
       this state who (a) is under the influence of intoxicating liquor; [or] . . . (c) has
       an alcohol concentration of eight one-hundredths percent (.08%) or more for
       persons who are above the legal age to purchase alcoholic beverages under
       state law . . . .

While the first and second DUI offenses are misdemeanors with a lesser punishment,

Jefferson was charged under subsection (2)(c), which makes it a felony to commit a third or

subsequent DUI within a five-year period (quoted in relevant part):

       [F]or any third or subsequent conviction of any person violating subsection (1)
       of this section, the offenses being committed within a period of five (5) years,
       such person shall be guilty of a felony and fined not less than Two Thousand
       Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), shall
       serve not less than one (1) year nor more than five (5) years in the custody of
       the Department of Corrections; provided, however, that for any such offense
       which does not result in serious injury or death to any person, any sentence of
       incarceration may be served in the county jail rather than in the State
       Penitentiary at the discretion of the circuit court judge. The minimum
       penalties shall not be suspended or reduced by the court and no prosecutor
       shall offer any suspension or sentence reduction as part of a plea bargain. The
       law enforcement agency shall seize the vehicle operated by any person charged
       with a third or subsequent violation of subsection (1) of this section, if such
       convicted person was driving the vehicle at the time the offense was
       committed. Such vehicle may be forfeited in the manner provided by Sections
       63-11-49 through 63-11-53. Except as may otherwise be provided by
       paragraph (e) of this subsection, the Commissioner of Public Safety shall
       suspend the driver’s license of such person for five (5) years.

¶6.    Operating a vehicle while under the influence of intoxicating liquor and having two


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convictions for DUIs committed within the last five years are both elements of the offense

of felony DUI. See Williams v. State, 991 So. 2d 593, 605 (¶40) (Miss. 2008). Since

Jefferson must be acquitted if he prevails in showing insufficient evidence of either element

of the offense, we will address the evidence that supports each element separately. See Bush,

895 So. 2d at 843 (¶16).

       3. Driving Under the Influence

¶7.    The record from the trial indicates that Jefferson was stopped at a safety checkpoint

in Columbia, Mississippi, at around 9:45 p.m. on October 15, 2012, a Friday night. Officer

Justin McKenzie of the Columbia Police Department, a DUI enforcement officer, testified

that he encountered Jefferson after he was stopped. Officer McKenzie, who is a certified

field sobriety test instructor, testified at length as to his observations and investigation of

Jefferson:

       A.     When I approached [Jefferson] and beg[an] convers[ing] with him, he
              seemed pretty nervous. He was kind of pacing back and forth. He had
              bloodshot eyes. I could smell the aroma of intoxicating beverages
              coming from his person. And based upon that, I deemed that I needed
              to perform some field sobriety tests and possibly a portable
              Breathalyzer. I used the PBT, preliminary breath test, and it indicated
              positive for the presence of alcohol. From there I moved on to the
              standardized field sobriety testing.

       Q.     And you stated before that you had specific training in these field
              sobriety tests?

       A.     Yes, ma’am.

       Q.     Which tests did you perform first?

       A.     To begin with, the horizontal gaze nystagmus. During that test I

                                              4
     received six of the six clues, plus vertical.

Q.   Let’s back up. Can you explain to the jury what the horizontal gaze
     nystagmus is?

A.   It's commonly – a lot of folks will say the finger test or the pen test,
     where they are asking you to follow a certain stimulus, be it your
     finger, a pen, a small light, or anything of that nature. Of course, the
     horizontal and the gaze is referred to as you are going in a horizontal
     movement. There’s three phases to that test. Then you want to check
     for vertical gaze nystagmus.

Q.   When you performed the test, what are you looking for specifically?

A.   You’re looking for the nystagmus. Nystagmus is the involuntary
     jerking of the eyes.

Q.   You said you noted six of six clues. How many possible clues are
     there?

A.   There are six clues total. That’s based upon a person with two eyes,
     because each – you are looking for three clues, and then you have two
     eyes. So that’s where you justify the six of the six. That’s based on the
     criteria that NHTSA provides us, which is the National Highway
     Traffic Safety Administration.

Q.   What are the three clues that are six total?

A.   The first thing you are looking for is the lack of smooth pursuit. The
     second is distinct and sustained nystagmus at maximum deviation. And
     the third is onset prior to 45 degrees.

Q.   Can you explain that in a way that we can understand it?

A.   The first one is just – to begin the test, you would do an equal tracking
     format, which is basically just moving it two times in both directions at
     roughly the same speed. Just a common pace back and forth. You’re
     making sure both eyes will track together so you can perform the test.
     From there you check for the lack of smooth pursuit, which is two more
     passes at basically the same pace. You are making sure that both eyes
     are tracking from side to side together. While you are watching them

                                     5
     – I start with the left eye first, because you always start with the
     suspect’s left side. You move to the left, to the right, back to the left,
     then back to the right, and then back to the center. During the first pass
     I’m looking at the left eye. The second pass, I’m looking at the right
     eye. You are looking for involuntary jerking as the eye moves along.
     It was very distinguished that night with Mr. Jefferson.

Q.   After you performed the horizontal gaze nystagmus test, what did you
     do next?

A.   I attempted to do the walk-and-turn, which we were able to complete,
     but it was without good cooperation from Mr. Jefferson. Mr. Jefferson
     made two different attempts to go back to his vehicle. Both times he
     attempted to get – not necessarily get in, but he was reaching into the
     vehicle for whatever reason. He was instructed several times not to go
     back to the vehicle, to remain where he was.

     From that point I would have proceeded with the instruction stage,
     which is to basically imagine there’s a line, if there’s not one available,
     put his left foot on that line and the right foot in front heel to toe and
     remain in that position. Mr. Jefferson continuously attempted to start
     the test and do it on his own. We run across that on various occasions
     with different impaired people that believe they already know the test,
     so they want to go ahead and do the test. The instructions were simple:
     To remain in that position. The first clue that was actually noted when
     the test was complete was that he could not maintain the balance and
     he began the test before instructed to do so. Mr. Jefferson – upon
     completing the test, I collected six of the eight clues available, and that
     is: He used his arms to balance; he missed heel to toe; he stepped off
     the line to the left and to the right; when he made the turn, he made an
     incorrect turn by making a wide radius turn, and then he took three
     steps backwards in an attempt to regain his balance before proceeding
     with nine steps in the other direction.

Q.   Did you perform any other field sobriety tests?

A.   I attempted the one-leg stand, which is the final stage of the
     standardized field sobriety. After he attempted to do the test twice
     incorrectly, the test was discontinued.

Q.   After you discontinued the field sobriety tests, what did you do next?

                                      6
       A.     I placed him into custody and transported him to Marion County jail.

¶8.    After his arrest, Jefferson initially refused to have his blood alcohol concentration

tested, but he eventually consented to test his breath with a machine called the Intoxilyzer

8000. However, the device would not self-calibrate properly and could not be used.

According to Officer McKenzie, when it became clear the Intoxilyzer 8000 would not work,

Jefferson insisted on using it. He did not respond to offers to have blood drawn for direct

testing.

¶9.    Officer McKenzie also testified that Jefferson admitted he had “a few earlier,”

apparently referring to alcoholic beverages. McKenzie concluded, from his observations and

from his training and experience, that Jefferson was under the influence.

¶10.   Mississippi’s DUI statute provides that proof of driving under the influence may be

shown either by the defendant’s blood alcohol content, called “per se DUI,” or by evidence

sufficient to show the defendant was “under the influence of intoxicating liquor,” – common

law DUI. “Common law DUI is proven when a defendant’s blood alcohol results are

unavailable . . . but there is sufficient evidence to [show] that the defendant operated a motor

vehicle under circumstances indicating his ability to operate the vehicle was impaired by the

consumption of alcohol.” Young v. State, 119 So. 3d 309, 315 (¶19) (Miss. 2013) (citation

omitted). Since there were no blood alcohol test results available in this case, Jefferson’s

prosecution was under the common law DUI theory.

¶11.   Officer McKenzie testified that Jefferson admitted he had been drinking earlier that


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night; that he smelled of alcoholic beverages, had bloodshot eyes, appeared nervous, and

acted obstinately; and that a portable breath test was positive for alcohol. These are all

evidence of intoxication. See Saucier v. City of Poplarville, 858 So. 2d 933, 936 (¶14) (Miss.

Ct. App. 2003). Officer McKenzie also described at length how Jefferson failed or could not

complete all three field sobriety tests, including the walk-and-turn, the horizontal-gaze-

nystagmus, and the one-leg-stand. Field sobriety tests can also be evidence of intoxication.

See Deloach v. City of Starkville, 911 So. 2d 1014, 1018 (¶16) (Miss. Ct. App. 2005).

¶12.   Jefferson exercised his right not to testify in his own defense, instead relying on the

argument that the prosecution failed to meet its burden to prove him guilty beyond a

reasonable doubt. On appeal, he points out that no one testified that his operation of the

vehicle appeared to be affected. He notes that his performance of the field sobriety tests

could have been affected by conditions such as arthritis or poor footwear, though there was

no evidence this was actually the case. Jefferson further notes that Officer McKenzie

admitted the encounter could have been recorded on video, but was not.

¶13.   All of Jefferson’s arguments are actually directed to the weight of the evidence rather

than its sufficiency. In other words, Jefferson attempts to place the evidence of guilt into

doubt. But conflicts in the evidence, or conflicting inferences that could be drawn from the

evidence, were for the jury to resolve as the trier of fact. Since the jury convicted Jefferson,

on appeal this Court must view the evidence “in the light most favorable to the prosecution,”

and ask only whether “any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)

                                               8
(citation omitted).

¶14.   After reviewing the record, we find the evidence we have discussed above, viewed

in its totality, was sufficient for a reasonable juror to conclude beyond a reasonable doubt

that Jefferson “operated a motor vehicle under circumstances indicating his ability to operate

the vehicle was impaired by the consumption of alcohol.” Young, 119 So. 3d at 315 (¶19)

(citation omitted). Jefferson’s arguments to the contrary are without merit.

       4. Prior DUI Convictions

¶15.   The other contested element of Jefferson’s guilty verdict is whether he had been

convicted of two other DUIs committed in the previous five years. To prove this element,

the prosecution called two witnesses, custodians of court records from two different

jurisdictions in Mississippi.

¶16.   Melissa Creel was a deputy court clerk at the Municipal Court of Petal. She provided

the foundation for introducing a certified abstract of a conviction of “Clarence D Jefferson”

for a DUI committed on January 17, 2010. The abstract contained various identifying

information such as an address in Columbia, Mississippi, Jefferson’s race and sex, the tag

number and make of his vehicle, and his social security number and date of birth. It

indicated “NL” for the driver’s license, presumably indicating “no license.”

¶17.   Wynette Parkman was a clerk who oversaw the Marion County Justice Court clerk’s

office. She authenticated a certified abstract of conviction and various accompanying




                                              9
documents for a DUI committed by “Jefferson Clarence Dwayne” on January 18, 2010.1 The

abstract also contained identifying information, but it was not exactly the same as the Petal

abstract. Jefferson’s race and sex were indicated and were the same. The same day and

month were given for the birth, but the year was different – 1969 on the Petal abstract and

1964 on the Marion County abstract. A different address was shown, but both were in

Columbia. The Marion County abstract had no box for a social security number, but it gave

a driver’s license number that was the same as Jefferson’s social security number on the Petal

abstract. No vehicle information was given.

¶18.   The ticket for the DUI in today’s case was admitted into evidence and authenticated

by Officer McKenzie. It showed Jefferson’s race and sex as on the abstracts, and the same

day and month of birth, with 1964 as the year. Jefferson’s license address was the same

address as on the Marion County abstract. Jefferson’s driver’s license number was the same

as the driver’s license number on the Marion County abstract and the social security number

on the Petal abstract. Officer McKenzie testified that this was also Jefferson’s social security

number. A vehicle was indicated, but it was different from the one on the Petal abstract.

¶19.   Jefferson’s argument on appeal is that because some of the information on these

documents is conflicting – primarily the year of birth, 1964 versus 1969 – the jury did not

have before it sufficient evidence to conclude it was the same Clarence Jefferson in each

case. We disagree. All of the documents bear the same social security or driver’s license


       1
         It should be noted that this is the day after the date of the offense on the other
abstract.

                                              10
number, and Officer McKenzie testified that it was both Jefferson’s social security number

and driver’s license number. It is also a matter of common knowledge that, until recently,

Mississippi often used a person’s social security number as his driver’s license number. The

differing year of birth can be explained as a scrivener’s error, given the similarity of the

numerals “4” and “9” and Creel’s testimony that the Petal abstract was entered into a

computer from a handwritten ticket. As to Jefferson’s address, it is true that the addresses

on the two abstracts differ. This is concerning because the abstracts refer to offenses that

occurred on consecutive days – January 17 and 18, 2010. However, the source of the

addresses is not given; they could have come from Jefferson himself, from his driver’s

license, or from some other source. Addresses are easily changed and one’s address as

indicated on a license or kept in a database can be outdated. In fact, one of the abstracts

indicates “NL” for the license number, presumably indicating that Jefferson had no license

with him when he was arrested. Given this, that the addresses were different goes to the

weight of this evidence rather than its sufficiency.

¶20.   “It [is] within the jury’s province to draw reasonable inferences from the evidence

based on their experience and common sense.” Broomfield v. State, 878 So. 2d 207, 215

(¶30) (Miss. Ct. App. 2004). Jefferson’s name, social security / driver’s license number, day

and month of birth, sex, race, and city of residence appear on both abstracts. There is some

conflicting data, but it is easily explained; so we are satisfied that a reasonable jury could

have found that Jefferson is the person who was convicted of both prior offenses. This issue

is without merit.

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                                      CONCLUSION

¶21.   Because there was sufficient evidence for a reasonable jury to find every element of

the offense, the question of Jefferson’s guilt or innocence was properly entrusted to the jury.

This Court cannot disturb the jury’s verdict on appeal.

¶22. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY OF
CONVICTION OF FELONY DUI AND SENTENCE AS A HABITUAL OFFENDER
OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH ONE YEAR SUSPENDED AND FOUR YEARS TO SERVE,
AND TO PAY A $1,000 FINE AND $1,000 TO THE MARION COUNTY PUBLIC
DEFENDER’S FUND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO MARION COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.




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