                    IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2009-KA-01005-SCT

THOMAS IRBY

v.

STATE OF MISSISSIPPI

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          05/13/2009
TRIAL JUDGE:                               HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                 CLARKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF INDIGENT APPEALS
                                           BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                         BILBO MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 12/09/2010
MOTION FOR REHEARING FILED:                10/08/2010
MANDATE ISSUED:


       BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The original opinion is withdrawn, and this

opinion is substituted therefor.

¶2.    A Clarke County jury found Thomas Irby guilty of DUI maiming. The Clarke County

Circuit Court, Judge Robert W. Bailey presiding, sentenced Irby to serve a sentence of

twenty-five years in the custody of the Mississippi Department of Corrections as a habitual

offender. Aggrieved, Irby appeals. Finding no error, we affirm.
                FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶3.    On the afternoon of May 10, 2008, while driving a Ford Ranger pick-up truck,

Thomas Irby collided with a Dodge van driven by Olivia Miller. Also occupying Olivia’s

vehicle was her husband, Justin Miller. All three were injured. Both drivers sustained injuries

to their legs and feet, and the passenger, Justin, sustained brain injuries and was in a coma

for four weeks after the accident. At the time of trial, Justin had use of only his left arm and

hand. He was unable to speak clearly. He had received care at various hospitals, including

a facility specializing in brain injury in Atlanta, Georgia. At the time of trial, the Millers had

incurred $2,000,000 in medical bills. Justin’s prognosis at the time of trial was uncertain,

and doctors were unable to predict whether he would ever walk again. Irby’s charge of DUI

maiming stemmed solely from the injuries sustained by Justin.

¶4.    According to Olivia Miller’s testimony, on the day of the accident, she was traveling

north on County Road 430 in Clarke County. Upon passing over a hill, she discovered a pick-

up truck in her lane about a tenth of a mile in front of her, traveling south in the northbound

lane. Olivia testified that to her right was a ditch, and that because of the ditch, she did not

feel she could safely veer off the road to her right. Accordingly, she veered sharply into the

left lane. As soon as she went left, Irby veered to his right into the proper lane. As a result,

the two automobiles collided, not quite head-on, but at a slight angle. Olivia Miller further

testified that just after the accident, while in close proximity with Irby, she had detected the

smell of alcohol.



                                                2
¶5.    Clarke County Deputy Sheriff Jerry Ivey responded to the scene of the accident. After

impact, both vehicles were observed to have come to a stop on the west side of the highway.

Ivey diagrammed the final resting place of each vehicle and testified that, while at the scene,

he had observed tire marks from the pick-up in the northbound lane headed south and tire

marks from the van in the northbound lane headed north. He testified that he had smelled

alcohol in the pick-up truck and had observed a beer can lying inside the truck on the driver’s

side floorboard.

¶6.    Ivey followed the ambulance transporting Irby to a local hospital and spoke with Irby

at the hospital. Ivey testified that he had asked for and received consent from Irby for a blood

sample. Ivey further testified that he had read to Irby the contents of the law-enforcement

form requesting that the hospital withdraw a blood sample. Ivey testified that he had

informed Irby of his right to refuse consent to draw the blood sample. Ivey testified that the

nurse had read Irby a second form, the Consent by Individual form (hereinafter “consent

form”), which both Irby and the nurse had signed. The consent form read, in pertinent part,

as follows: “I, Thomas Irby, consent to the taking of a blood or urine specimen from me for

an investigation by a duly authorized law enforcement official . . . .” Moreover, the form

explicitly stated that “results of the test may be made available to law enforcement.”

According to the deputy, Irby had appeared “alert and awake.” The consent form bears

Irby’s signature. After Nurse Lauren Westbrook drew Irby’s blood, Ivey sent the samples

to the Mississippi Crime Laboratory in Meridian.




                                               3
¶7.    John Stevenson, a forensic scientist with the Mississippi Crime Laboratory, testified

regarding the results of the blood-alcohol and drug analysis. Irby’s blood tested positive for

benzodiazepines, benzoylecgonine (a breakdown product of cocaine), and opiates. The

particular benzodiazepine found in Irby’s blood sample was alprazolam, commonly known

as Xanax. The opiate was hydrocodone, which is commonly prescribed as a pain-killer. As

to the breakdown product of cocaine, or metabolite of cocaine, Stevenson explained that

cocaine “is in your system very readily. It is maybe 30 minutes at the most. It’s very rapidly

gone once you use. The metabolites are what are found . . . not the parent compound.”

Stevenson testified that a positive result for a metabolite of cocaine means that a person has

ingested cocaine; however, Stevenson had been unable to determine when Irby had ingested

cocaine relative to the accident. Irby’s blood sample was then sent to National Medical

Services Laboratories (NMS Labs) in Pennsylvania for quantitative analysis.

¶8.    Dr. Laura Labay, a forensic toxicologist with NMS Labs, testified as to the

quantitative analysis of Irby’s blood sample. Irby’s blood sample contained 410 nanograms

per milliliter of the cocaine metabolite benzoylecgonine, 90 nanograms per milliliter of

hydrocodone, and 87 nanograms per milliliter of alprazolam. Dr. Labay testified that the

benzoylecgozine in and of itself would have had no pharmacological activity or effect. Dr.

Labay testified that the therapeutic range for alprazolam is 10 to 50 nanograms per milliliter

and that a concentration of 75 nanograms per milliliter or more is potentially toxic. Side

effects of alprazolam include fatigue and drowsiness. Likewise, hydrocodone, a




                                              4
semisynthetic narcotic analgesic, produces the side effect of drowsiness. As to the effects of

these drugs on Irby’s ability to operate a motor vehicle, Dr. Labay testified from her report:

       Based on the concentration of Alprazolam and Hydrocodone found in this
       case, it can be stated with reasonable scientific certainty that if the individual
       showed signs of impairment . . . then these substances can be responsible for
       the production of that impairment, especially in the absence of a more
       competent cause. Such impairment would be characterized by diminished
       faculties associated with the safe operation of a motor vehicle, including
       impaired alertness, judgement [sic] perception, coordination, response time
       and sense of care and caution. These decrements can cause the individual to
       be impaired to and beyond the point of rendering this individual unfit to
       operate a motor vehicle safely.

¶9.    Two additional witnesses for the State testified that they had seen Irby earlier in the

day on May 10, 2008. Both testified that Irby had run his pick-up truck off Causeyville Road

and had gotten stuck in a ditch. One of the passersby, Gene Jay, stopped to see if Irby was

injured, but then declined Irby’s request for assistance in pulling his truck out of the ditch

because Jay was of the opinion that Irby’s behavior appeared erratic and that Irby should not

have been driving.

                                       DISCUSSION

¶10.   Irby raises three points of error for this Court’s review: (1) Was blood evidence

improperly admitted, (2) were the defendant’s confrontation rights protected, and (3) was the

verdict supported by the evidence? 1


       1
          On motion for rehearing, Irby argues, for the first time, that his indictment is
insufficient because it did not allege that the substances in his bloodstream “impaired [his]
ability to operate a motor vehicle.” Miss. Code Ann. § 63-11-30(1) (Rev. 2004). A party
may not raise a new issue on motion for rehearing. McFarland v. Entergy Miss., Inc., 919
So. 2d 894, 904 (Miss. 2005) (citing Brewer v. State, 819 So. 2d 1169, 1175 (Miss. 2002)).

                                               5
¶11.   Irby was charged pursuant to Mississippi Code Section 63-11-30(5) (Rev. 2004), in

connection with the permanent injuries sustained by Justin Miller in the collision. The

necessary elements of a conviction pursuant to Section 63-11-30(5) are: (1) that the

defendant negligently caused the death, disfigurement, or permanent disability or destruction

of “the tongue, eye, lip, nose or any other limb, organ or member of another” (2) while

operating a motor vehicle under the influence of alcohol or a controlled substance which has

impaired such person’s ability to operate a motor vehicle. Miss. Code Ann. § 63-11-30(1)(b),

(5) (Rev. 2004).

       I.     WHETHER THE BLOOD EVIDENCE WAS IMPROPERLY
              ADMITTED.

¶12.   “The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV.

“The people shall be secure in their persons, houses, and possessions, from unreasonable

seizure or search.” Miss. Const. art. 3 § 23. “The degree of intrusion necessary in the taking

of a blood sample is sufficient to require the presence of probable cause.” McDuff v. State,

763 So. 2d 850, 854 (Miss. 2000) (quoting Schmerber v. Cal., 384 U.S. 757, 770-71, 86 S.

Ct. 1826, 1835-36, 16 L. Ed. 2d 908, 919-20 (1966)).

¶13.   Voluntary consent to a search eliminates an officer’s need to obtain a search warrant.

Graves v. State, 708 So. 2d 858, 863 (Miss. 1997) (citing Davis v. United States, 328 U.S.

582, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946); Jones v. Miss. Dep’t of Pub. Safety, 607 So. 2d


Thus, this issue is procedurally barred.

                                              6
23, 26 (Miss. 1991); Waldrop v. State, 544 So. 2d 834, 837 (Miss. 1989); Whittington v.

State, 523 So. 2d 966, 973 (Miss. 1988); Hudson v. State, 475 So. 2d 156, 159 (Miss.

1985)). “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the

product of duress or coercion, express or implied, is a question of fact to be determined from

the totality of the circumstances.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

223, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Jones, 607 So. 2d at 26)).

¶14.   In addition to voluntary consent, a knowledgeable waiver of this right to be free from

unreasonable search also is required. Penick v. State, 440 So. 2d 547, 549 (Miss. 1983).

Irby cites the rule in Penick, which states that, for a consent to search to be valid, “it must

clearly appear” that the subject “voluntarily permitted, or expressly invited and agreed to the

search, being cognizant of [his] rights in the premises when the officer proposed to [him],

by asking [his] permission, to make the search without a warrant.” Id. (citing Smith v. State,

133 Miss. 730, 736, 98 So. 344, 345 (1923)) (emphasis added).

¶15.   In Graves v. State, 708 So. 2d 858, 864 (Miss. 1997), this Court held:

       If the defendant claims that his waiver was not knowledgeable, the burden is
       on him to raise the issue of lack of knowledgeable waiver. Knowledgeable
       waiver is defined as consent where the defendant knows that he or she has a
       right to refuse, being cognizant of his or her rights in the premises.

Graves, 708 So. 2d at 864 (citing Jones, 607 So. 2d at 28).

¶16.   “[A] trial judge enjoys a considerable amount of discretion as to the relevancy and

admissibility of evidence. Unless this judicial discretion is so abused as to be prejudicial to

the accused, we will not reverse his ruling.” Graves v. State, 492 So. 2d 562, 565 (Miss.


                                              7
1986) (citing Page v. State, 295 So. 2d 279 (Miss. 1974); Shearer v. State, 423 So. 2d 824,

826 (Miss. 1983)).

¶17.   Irby’s argument as to this issue is two-fold: (1) the trial court erred in admitting the

blood analysis because the nurse who drew the blood did not testify to the voluntariness of

Irby’s consent; and (2) because Irby was being prepared for surgery, he was incapacitated

and unable to consent knowingly to providing a blood sample.2 Accordingly, Irby maintains

that testimony regarding “other substances” in Irby’s blood sample should not have been

admitted.

¶18.   During Stevenson’s testimony, Irby objected to the admission of the blood-analysis

results, stating that “we’ve objected to the method [sic] the blood was taken, so we certainly

have to object to the way these reports are now being presented to the Court for entry into

evidence.” The results were admitted over Irby’s objection. Irby also objected to Ivey’s

testimony that he had observed Westwood read the contents of the written consent form and

had observed both Irby and Westwood sign the form. The objection to the officer’s testimony

regarding written consent made at trial was that Westbrook’s testimony was necessary to

establish a “chain of custody.” An objection based on failure to establish a chain of custody



       2
        To be clear, Irby’s blood sample was not withdrawn subject to an arrest, nor was he
in custody at the time it was withdrawn. The law enforcement officer who had been at the
scene had Irby’s blood withdrawn based on Irby’s oral and written consent. “Schmerber v.
California, [384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)], should put to rest any
contention that taking a blood sample as a lawful incident to an arrest for driving while
intoxicated violates either the Fourth, Fifth or Sixth Amendments to the U.S. Constitution.”
Penick v. State, 440 So. 2d 547, 551 (Miss. 1983).

                                              8
is not an objection based on a failure to establish the voluntariness of consent. Mississippi

Rule of Evidence 103(a)(1) reads, in pertinent part, as follows:

       (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling
       which admits or excludes evidence unless a substantial right of the party is
       affected, and


       (1) Objection. In case the ruling is one admitting evidence, a timely objection
       or motion to strike appears of record, stating the specific ground of objection
       ....

The objection made at trial did not state with requisite specificity the basis for the objection

to the admission of the testimony. An objection based on the fact that the officer could not

testify to what he personally observed was properly overruled by the trial court. Ivey could

testify to what he personally observed concerning Irby’s written consent to the blood test. See

Miss. R. Evid. 602.

¶19.   Irby cites Comby v. State, 901 So. 2d 1282, 1285-86 (Miss. Ct. App. 2004), in support

of his argument that it was necessary for Westbrook to testify. In Comby, the Court of

Appeals noted the following regarding the facts of the case:

       Comby signed a consent form to have his blood drawn and tested for law
       enforcement purposes. To determine whether Comby's consent was valid, the
       trial court, outside the presence of the jury, heard testimony from the nurses
       who were present when Comby signed the consent form, the deputy who
       obtained Comby's consent, and Comby himself.

Id. at 1285. In Comby, the appellate court upheld the trial court’s ruling that the defendant’s

consent was voluntary. Id. at 1285-86. Irby also cites the following dicta from Cutchens v.

State, 310 So. 2d 273, 280 (Miss. 1975):


                                               9
       It would have been better practice to have examined into the voluntariness of
       the consent outside of the presence of the jury but since the evidence was
       sufficient to sustain the fact that Cutchens' consent was voluntarily given no
       prejudicial error was committed. If the evidence had shown lack of voluntary
       consent, a reversible error would have resulted requiring reversal and remand.

Id. at 280.

¶20.   While Irby objected to the testimony of Stevenson and Ivey, Irby never properly

raised the validity-of-consent issue. Accordingly, the trial court never ruled on the

voluntariness of Irby’s consent. The suppression of the blood sample was first raised in a

motion in limine to exclude the analysis on the basis that the officer had obtained a blood

sample under Mississippi Code Section 63-11-7 (Rev. 2004), a statute which allows for

obtaining a blood sample for the purposes of a blood-alcohol analysis from a person

“unconscious at the time of arrest or apprehension or when the test is to be administered, or

is otherwise in a condition rendering him incapable of refusal . . .” and “under the influence

of intoxicating liquor.” Miss. Code Ann. § 63-11-7 (Rev. 2004). According to Irby’s motion

in limine, the analysis for other substances should have been suppressed because the statute

at issue allows only for blood-alcohol analysis, not for the presence of other intoxicating

substances. The State, however, never compelled the blood sample under Section 63-11-7,

but always maintained that Irby had consented to the blood test.3



       3
        Defense counsel at trial stated that it was unaware at the time the motion in limine
was filed that Irby had given consent; thus, defense counsel erroneously believed the blood
sample to have been taken pursuant to Section 63-11-7. The record reflects that, upon
learning of this consent, the defense abandoned its argument concerning Section 63-11-7,
and that was why the motion in limine was never taken up by the trial court.

                                             10
¶21.   Additional objections to Ivey’s testimony regarding the validity of Irby’s consent were

not made by the defense until Ivey was later recalled to the stand after testimony by both

blood analysts already had been admitted. Accordingly, Irby did not timely object to the

admission of the blood-analysis evidence. For all the reasons stated above, we find that the

blood-analysis evidence was properly admitted. Thus, this issue has no merit.4

       II.     WHETHER IRBY’S SIXTH-AMENDMENT CONFRONTATION
               RIGHTS WERE PROTECTED.

¶22.   Irby argues that his right to cross-examine Ivey was limited by the trial judge, in

violation of his right to confrontation under the Sixth Amendment. In his brief, Irby states

that the trial court sustained an objection to the defense’s line of questioning regarding the

validity of Irby’s consent. This statement from Irby’s brief does not accurately reflect the

actual ruling by the trial court.

¶23.   Ivey testified as to the accident scene and Irby’s oral and written consent to the blood

test. As previously discussed, the defense objected to this testimony on the basis that

Westbrook had not been called to testify; thus, Ivey should not have been allowed to testify

as to written consent. This objection was heard and argued outside the presence of the jury.

The trial court overruled the defense’s objection, because Ivey had witnessed the defendant

and the nurse sign the consent form and thus had personal knowledge of consent. The officer



       4
          Irby also argues that he suffered from diminished capacity and could not validly
consent to giving a blood sample. Because the record is insufficient on this issue, we find
that this contention is better suited for a motion for post-conviction relief. Wilson v. State,
21 So. 3d 572, 580 (Miss. 2009).

                                              11
went on to testify that, after the blood sample was obtained, the vials of blood were sent to

the Mississippi Crime Laboratory. When asked if the defense wished to cross-examine Ivey

at that time, the defense declined to do so. Following Ivey’s testimony, the State introduced

testimony, absent objection, from the defense, as to the other substances found in Irby’s

blood-sample analyses.

¶24.   Ivey later was recalled by the State. After a brief direct examination, Ivey was cross-

examined regarding the diagram of the accident and observations of the victims after the

crash. Then, defense counsel questioned Ivey regarding his actions upon arriving at the

hospital. The defense began a line of questioning as to whether Ivey would have obtained

the blood sample even if Irby had refused to give consent. As defense counsel began to

recite for Ivey the statute pertaining to withdrawing blood for the purpose of obtaining a

blood-alcohol analysis, the State objected on the basis of relevance. The Court sustained the

State’s objection on the basis that the State had chosen to travel under the presumption that

Irby had given valid consent to the blood sample. Defense counsel then asked whether the

victims were unconscious, to which the State objected on the same basis that this question

pertained to the statute, not to consent. The Court then dismissed the jury.

¶25.   Outside the presence of the jury, the State argued that the fact that Irby had given oral

and written consent already had been admitted into evidence in Ivey’s previous testimony.

Moreover, the blood analysis from the Mississippi Crime Lab and Dr. Labay already had

been admitted into evidence. Thus, according to the State, validity of consent had been




                                              12
waived, and whether the officer had obtained the blood sample pursuant to Section 63-11-7

was irrelevant. The defense argued:

       We are attacking the consent. It was asked in direct and we have an
       opportunity to cross-examine him on that. Now, whether or not this officer had
       an alternate way to get exactly what he had already sought out to get, i.e.,
       blood, in this situation is motive. That’s why we’re questioning it. We think
       it’s motive on whether or not he did or did not have Mr. Irby sign this form
       under his own consent or his own permission. It goes to . . . [the officer’s]
       intent . . . .

The trial court ruled that defense counsel could proceed with this line of questioning only

outside the presence of the jury. In doing so, the trial judge stated that the motion in limine,

which sought to suppress the blood sample because it was compelled by Section 63-11-7,

was filed but never argued; thus, it had been waived. Moreover, the trial court found

irrelevant “whether there’s an alternate method” for compelling a blood sample, which the

State had never pursued, since Irby had given his consent.

¶26.   Only after the trial judge dismissed the jury did defense counsel move on from the line

of questioning on whether Ivey thought he could compel a blood sample from Irby pursuant

to Section 63-11-7 to a line of questioning as to whether Ivey considered the defendant to be

alert and able to give consent. Ivey testified that Irby was conscious and capable of giving

consent as well as informed of his right to withhold consent. We find no error on the part of

the trial judge, as the trial judge properly ruled that Ivey’s “motive” or “intent” for obtaining

consent from Irby was irrelevant, and evidence of it should not be presented to the jury.

Additionally, as previously discussed, Irby never properly moved the trial court to make an

on-the-record finding outside the presence of the jury, nor did Irby ever proffer any evidence

                                               13
that Irby was suffering from diminished capacity to consent to the blood test. Accordingly,

this argument is without merit.

       III.   WHETHER THERE IS INSUFFICIENT EVIDENCE TO
              SUPPORT THE VERDICT AND WHETHER THE VERDICT IS
              AGAINST THE OVERWHELMING WEIGHT OF THE
              EVIDENCE.

¶27.   Irby contends that the verdict was against the overwhelming weight of the evidence

and that the evidence was insufficient to support the verdict. Irby filed his motion for a new

trial and/or judgment notwithstanding the verdict on May 14, 2009. It was denied by order

of the trial court entered May 19, 2009.

       On review of a challenge to the weight of the evidence, this Court will reverse
       for a new trial only if the trial court's ruling was an abuse of discretion. Miller
       v. State, 980 So. 2d 927, 929 (Miss. 2008). We will not disturb the verdict
       unless it “is so contrary to the overwhelming weight of the evidence that to
       allow it to stand would sanction an unconscionable injustice.” Bush v. State,
       895 So. 2d 836, 844 (Miss. 2005) (citing Herring v. State, 691 So. 2d 948, 957
       (Miss. 1997)).

Neal v. State, 15 So. 3d 388, 410 (Miss. 2009). The “evidence should be weighed in the light

most favorable to the verdict.” Id.

¶28.   When there is a question whether the evidence was sufficient to support the verdict,

the State is given “the benefit of all favorable inferences that may reasonably be drawn from

objective facts established by the evidence.” Edwards v. State, 469 So. 2d 68, 70 (Miss.

1985) (citing Glass v. State, 278 So. 2d 384, 386 (Miss. 1973)). “If the facts and inferences

so considered point in favor of the defendant on any element of the offense with sufficient

force that reasonable [jurors] could not have found beyond a reasonable doubt that the


                                               14
defendant was guilty, granting the motion [for judgment notwithstanding the verdict] is

required.” Id. (citing May v. State, 460 So. 2d 778, 781 (Miss. 1984)).

¶29.   In today’s case, the State was required to prove the following elements beyond a

reasonable doubt: (1) that defendant negligently caused the death, disfigurement, or

permanent disability or destruction of “the tongue, eye, lip, nose or any other limb, organ

or member of another” (2) while operating a motor vehicle under the influence of alcohol or

a controlled substance which has impaired such person’s ability to operate a motor vehicle.

Miss. Code Ann. § 63-11-30(1)(b), (5) (Rev. 2004).

¶30.   Irby argues that Ivey’s testimony that there were two sets of skid marks leading to the

accident was contradicted by another officer at the scene. Contrary to Irby’s contention, the

testimony by the other officer, Roger Robinson, does not favor the defendant. Robinson

testified that he had observed skid marks at the scene trailing from the trajectory of Olivia

Miller’s vehicle. This is consistent with Olivia Miller’s testimony that Irby never appeared

to brake prior to impact. Such evidence that Irby failed to brake supports the jury’s finding

that Irby was operating a motor vehicle negligently and while impaired.

¶31.   Although conceding that he was observed to be in the wrong lane of traffic, Irby

argues that it was Olivia Miller’s negligence, namely swerving into the wrong lane just as

Irby swerved into the correct lane, that caused the accident. Irby further maintains that Olivia

Miller was speeding in that she was traveling at 35-45 miles per hour in a 25-miles-per-hour

zone. Moreover, Irby avers that he had no alcohol in his system and that the toxicologist’s

analysis regarding other substances was speculative. More specifically, Irby highlights

                                              15
testimony from Dr. Labay regarding her “impairment statement” in the toxicology report. Dr.

Labay testified as follows:

       Based on the concentration of Alprazolam and Hydrocodone found in this
       case, it can be stated with reasonable scientific certainty that if the individual
       showed signs of impairment–and examples of that we listed here include
       evidence of erratic driving, unusual demeanor–that these substances can be
       responsible for the production of that impairment, especially in the absence of
       a more competent cause.

Presumably, Irby takes issue with the words “substances can be responsible for the

production of that impairment.”

¶32.   This lack of evidence, according to Irby, means that the State failed to prove its

requisite element of negligence for a conviction of DUI maiming; thus, the motion for

judgment notwithstanding the verdict should have been granted. Lastly, Irby contends that

the verdict “is so contrary to the overwhelming weight of the evidence that to allow [it] to

stand would sanction an unconscionable injustice.” Taggart v. State, 957 So. 2d 981, 987

(Miss. 2007).

¶33.   When viewing the evidence “in the light most favorable to the verdict,” Neal, 15 So.

3d at 410, it is clear that the overwhelming weight of the evidence supports a guilty verdict.

Olivia Miller testified that, as she drove over a hill, she saw Irby’s truck in her lane driving

toward her at an alarming speed. Afraid of veering into the ditch on her right, Miller swerved

left just as Irby overcorrected to his right. This resulted in an impact that was not quite head-

on, but at an angle. Both Miller and Ivey testified that Irby had smelled of alcohol that day,

and although Irby’s blood sample was not positive for the presence of alcohol, it did test


                                               16
positive for other substances. The forensic toxicologist, Dr. Labay, testified to significant

levels of alprazolam and hydrocodone in Irby’s blood analysis, both of which, according to

Dr. Labay, affect one’s ability to operate a motor vehicle. Finally, Olivia Miller testified at

length regarding her husband’s permanent disability that was a direct result of the crash.

¶34.   Finally, “after viewing the evidence in the light most favorable to the prosecution,”

it is clear that “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Neal, 15 So. 3d at 409 (quoting Jackson v. Virginia, 443 U.S.

307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Accordingly, the trial judge did not

abuse his discretion in denying Irby’s motion for a new trial and/or judgment notwithstanding

the verdict.

                                       CONCLUSION

¶35.   The trial court did not err in admitting the blood-analysis evidence because Irby did

not properly raise the validity-of-consent issue. Secondly, the defendant had the burden to

proffer evidence of diminished capacity and failed to do so. Moreover, the trial court did not

err in refusing to allow defense counsel to cross-examine Ivey in the jury’s presence as to

whether he had intended to compel Irby to submit a blood sample, given that the State always

had maintained that Irby had consented to the blood sample. Finally, the trial court did not

abuse its discretion in denying Irby’s motion for a new trial and/or judgment notwithstanding

the verdict.




                                               17
¶36.   Therefore, the Clarke County Circuit Court judgment of conviction for DUI maiming

and sentence of twenty-five years in the custody of the Mississippi Department of

Corrections entered against Thomas Irby is affirmed.

¶37. CONVICTION OF DUI MAIMING AND SENTENCE OF TWENTY-FIVE (25)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AS A HABITUAL OFFENDER, WITHOUT REDUCTION,
SUSPENSION, PROBATION, PAROLE OR ANY OTHER TYPE EARLY RELEASE
OR REDUCTION, AFFIRMED. APPELLANT SHALL PAY COURT COSTS OF
$368.50, A FINE OF $1,000.00, PAY $1,000.00 AB FEE AND $3,000.00 RESTITUTION
FOR JUSTIN MILLER.

    WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.




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