Michael Thomas McDonald v. City of Aberdeen
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KM-01602-COA
MICHAEL THOMAS MCDONALD
APPELLANT
v.
CITY OF ABERDEEN
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
6/16/2003
HON. THOMAS J. GARDNER, III
MONROE COUNTY CIRCUIT COURT
MOSE LEE SUDDUTH
ROBERT H. FAULKS
CRIMINAL - MISDEMEANOR
DEFENDANT CONVICTED OF DUI, FIRST
OFFENSE: SENTENCED TO TWO DAYS’
INCARCERATION IN THE MONROE COUNTY
JAIL, WITH SENTENCE SUSPENDED, AND
PAYMENT OF $1,000 FINE. DEFENDANT
PLACED ON UNSUPERVISED PROBATION
FOR 180 DAYS AND REQUIRED TO ATTEND
AND COMPLETE AN ALCOHOL SAFETY
EDUCATION PROGRAM. CHARGES OF
IMPROPER STOPPING AND POSSESSION OF
AN OPEN CONTAINER WERE DISMISSED.
AFFIRMED: 12/14/2004
BEFORE LEE, P.J., IRVING AND GRIFFIS, JJ.
IRVING, J., FOR THE COURT:
¶1.
The Municipal Court of the City of Aberdeen found Michael McDonald guilty of driving under the
influence, first offense, improper stopping, and possession of an open container of beer. McDonald
appealed his conviction to the Monroe County Circuit Court. In a bench trial, the trial court found
McDonald guilty of driving under the influence, first offense, but dismissed the charges of improper stopping
and possession of an open container of beer. McDonald was sentenced to two days’ incarceration in the
Monroe County jail, with said sentence suspended, upon the condition that he not violate any laws or
statutes of the State of Mississippi. McDonald was also placed on unsupervised probation for 180 days,
fined $1,000 and court costs, and ordered to attend and complete an alcohol safety education program.
¶2.
Aggrieved, McDonald appeals his conviction and argues that the trial court committed reversible
error in failing to grant his motion to dismiss the DUI charge due to the City’s failure to prove beyond a
reasonable doubt that he was under the influence of alcohol at the time of his arrest.
¶3.
Similarly, the City of Aberdeen cross-appeals and alleges that (1) the City offered sufficient
evidence that McDonald was in possession of an open container of beer, and (2) the police officer’s ticket
sufficiently charged McDonald with “improper stopping” in violationof MississippiCode Annotated section
63-3-903 (Rev. 2004).
¶4.
Finding no reversible error, we affirm McDonald’s DUI conviction and the trial court's dismissal
of the charges of improper stopping and possession of an open container.
FACTS
¶5.
On April 29, 2001, Officer Randy Perkins, a lieutenant with the Aberdeen Police Department,
testified that he was dispatched to the intersection of Commerce Street and Highway 45 where he found
a vehicle sitting in the road blocking traffic.1 He stated that the car’s engine was running and that
1
On cross-examination, when asked how far out McDonald’s vehicle was in the highway, the
officer testified that McDonald was not across the whole lane, but was in the first lane of the four lane
highway. He stated that other cars had to go into the second lane to go around McDonald.
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McDonald was lying over the steering wheel asleep. The officer also testified that McDonald’s car was
approximately twenty feet beyond the stop sign and that the front end of McDonald’s car was sitting in the
roadway jutting into Highway 45, so that other cars had to go around it. The officer stated that he had to
beat on McDonald’s window several times before awaking him. Officer Perkins testified that when
McDonald woke up, he looked around as if he was lost, and when he asked McDonald to step out of the
vehicle, Officer Perkins saw an open container of beer on the console and could smell a strong odor of
alcohol emanating from McDonald. As McDonald exited the car, he staggered and almost fell. Officer
Perkins had to support him to the rear of the vehicle. Officer Perkins testified that he asked McDonald
several questions to determine if McDonald had diabetes or was ill. Officer Perkins administered to
McDonald the Horizontal Gage Nystagmus test (HGN) and a portable Intoxilyzer test. McDonald was
then arrested and transported to the Aberdeen Police department. While at the station, McDonald
informed Officer Perkins that McDonald had drunk three beers but refused to give a breath sample for an
analysis by an Intoxilyzer machine.
¶6.
McDonald, however, testified that his car was not jutting out into the highway as alleged by
Officer Perkins. Rather, he was sitting beside a stop sign with his vehicle in drive. McDonald also testified
that at the time of the incident, he was taking medications for depression and anxiety. Additional facts will
be related during our discussion of the issues.
DISCUSSION AND ANALYSIS OF THE ISSUES
DUI Charge
¶7.
McDonald argues that the trial court committed reversible error in failing to grant his motion to
dismiss the DUI charge because the City of Aberdeen (City) failed to prove beyond a reasonable doubt
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that he was under the influence of an intoxicating substance at the time of his arrest. McDonald claims that
he was not intoxicated but instead, had a reaction to medication which caused him to pass out.
¶8.
A motion for a JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.
2d 774, 778 (Miss. 1993). “In appeals from an overruled motion for JNOV[,] the sufficiency of the
evidence as a matter of law is viewed and tested in a light most favorable to the [City].” Id. (citing
Esparaza v. State, 595 So. 2d 418, 426 (Miss. 1992)). “We are authorized to reverse only where, with
respect to one or more of the elements of the offense charged, the evidence so considered is such that
reasonable and fair-minded jurors could only find the accused not guilty.” McClain, 625 So.2d at 778
(citing Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987)).
¶9.
Here, ample evidence was offered by the City in support of McDonald’s DUI conviction. The
police officer who responded to the scene testified that he found McDonald slumped over the steering
wheel with the motor running and had to beat on McDonald’s window several times before waking him.
The officer further testified that when McDonald finally woke up, he was disoriented and looked around
as if he was lost. Similarly, the officer testified that he could smell a strong odor of alcohol emanating from
McDonald and that when McDonald attempted to exit his car, he had to support him because McDonald
staggered and almost fell. The officer additionally testified that McDonald was swaying badly, was very
incoherent, and did not know his whereabouts. McDonald also admitted, according to Officer Perkins,
that he had consumed three beers.
¶10.
Although McDonald argues that he was not intoxicated but had a reaction to medication that he
was taking, we emphasize that in a non-jury trial, “[a] [judge] sits as a fact-finder and in resolving factual
disputes, is the sole judge of the credibility of witnesses.” Murphy v. Murphy, 631 So. 2d 812, 815 (Miss.
1994) (citing West v. Brewer, 579 So. 2d 1261, 1263-64 (Miss. 1991)). Here, the judge, as the trier of
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fact, was presented with conflicting testimony. He was in the best position to assess the credibility of the
witnesses and the weight to be given their testimony.
¶11.
We find that substantial evidence exists in the record to support McDonald’s conviction. Accepting
the evidence in the light most favorable to the City, the trial judge was justified in finding McDonald guilty.
We will now address the City’s assignment of errors on cross-appeal.
Possession of Open Container/Improper Stop Charges
¶12.
On cross-appeal, the City argues that it offered sufficient evidence that McDonald was in
possession of an open container of beer and that the law does not require that the beer container be offered
into evidence or that there be laboratory confirmation of its alcoholic content. The City also argues that
the ticket written by the arresting officer sufficiently charged McDonald with improper stopping on a
highway in violation of Mississippi Code Annotated section 63-3-903 (Rev. 2004).
¶13.
At the conclusion of the City’s case and again at the conclusion of the defense’s case, McDonald
moved for a dismissal of the open container charge on the basis that the City had failed to prove its case
against him because it failed to prove that he was in possession of a can of beer at the time of his arrest.
McDonald also moved for a dismissal of the improper stop charge on the basis that the City failed to
provide sufficient evidence that he had improperly stopped. The trial judge agreed and dismissed both
charges. However, after dismissing the improper-stop charge, the trial judge remarked, "I'm not sure that's
a proper charge in any event." Apparently, the City takes this remark to mean that the trial judge was
finding that McDonald had not been properly charged with improper stopping because the charge was
made by giving McDonald a ticket which only referenced the code section allegedly violated without
describing the acts constituting the violation.
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¶14.
We cannot know what the trial judge meant since there is no explanation of the remark in the
record. Nevertheless, we agree with the City that the traffic ticket given to McDonald was legally sufficient
to charge him with improper stopping inasmuch as it referenced the statute which was allegedly violated.
However, we affirm the dismissal of the improper stopping charge because it would be a violation of
McDonald's constitutional rights to retry him on this charge. Moreover, the basis for the trial judge's
dismissal of the improper stopping charge is not clear in the record. What is clear is that he dismissed the
charge prior to making the comment about his not being sure the charge was proper. His dismissal can only
be construed as a dismissal on the merits. As to the dismissal of the open-container charge, it is clear in
the record that the dismissal was on the merits.
¶15.
Article 3 Section 22 of the Mississippi Constitution, the State’s double jeopardy statute, provides:
No person’s life or liberty shall be twice placed in jeopardy for the same offense; but there
must be an actual acquittal or conviction on the merits to bar another prosecution.
“Under the plain wording of [the statute], in order for this state’s Double Jeopardy clause to apply[,] the
accused must first suffer an actual acquittal or conviction on the merits of the offense.” State v. Fleming,
726 So. 2d 113, 115 (¶9) (Miss. 1998). “Then, and only then, will a second prosecution for that same
offense be barred.” Id.
¶16.
The dismissal of the open-container and improper stop charges against McDonald was, in effect,
an acquittal of the charges for which he was being tried. A reversal of his acquittal by this Court for a
second trial would violate McDonald’s constitutional right to protection from double jeopardy. Therefore,
we affirm the trial court on all issues.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF
DISMISSAL OF THE CHARGES OF IMPROPER STOPPING AND POSSESSION OF AN
OPEN CONTAINER AND CONVICTION OF THE CHARGE OF DRIVING UNDER THE
INFLUENCE, FIRST OFFENSE, AND SENTENCE OF TWO DAYS’ INCARCERATION IN
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THE MONROE COUNTY JAIL, WITH SENTENCE SUSPENDED, 180 DAYS OF
UNSUPERVISED PROBATION, AND PAYMENT OF $1,000 FINE, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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