Zavien T. Beal v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KM-00345-COA
ZAVIEN T. BEAL
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
COUNTY ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/24/2006
HON. LAMAR PICKARD
JEFFERSON COUNTY CIRCUIT COURT
AAFRAM YAPHET SELLERS
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
JOSEPH B. MOFFETT
CRIMINAL - MISDEMEANOR
CONVICTION OF SPEEDING AND D.U.I.
FIRST OFFENSE (OTHER SUBSTANCE) AND
SENTENCE OF FORTY-EIGHT HOURS OF
JAIL TIME, SUSPENDED UPON PAYMENT OF
$511.50 FINE.
AFFIRMED – 05/29/2007
BEFORE KING, C.J., IRVING AND ROBERTS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Zavien Beal was convicted by the Jefferson County Justice Court of speeding and D.U.I. first
offense (other substance) and was sentenced to pay a fine and serve a term of forty-eight hours in
jail, with the forty-eight hours suspended upon payment of the fine. Aggrieved, Beal appealed his
conviction for D.U.I. first offense to the Jefferson County Circuit Court, which reviewed the case
de novo and also found Beal guilty of D.U.I. first offense.1 Thereafter, Beal appealed to this Court,
asserting that insufficient evidence exists to convict him of D.U.I. Finding no error, we affirm.
FACTS
¶2.
Beal was a student at Alcorn State University in 2005. On November 3, 2005, Beal left
school and went to Natchez, Mississippi, some twenty-five miles or so away. After spending some
time in Natchez, Beal left to return to Alcorn State when he was stopped by Officer Kenny Tarleton
of the Mississippi Highway Safety Patrol. Officer Tarleton stopped Beal because Beal was traveling
at eighty-seven miles per hour in a fifty-five-miles-per-hour zone. Officer Tarleton testified that as
he approached the vehicle, he smelled a strong odor of burnt marijuana coming from it. Upon
reaching the vehicle, Officer Tarleton testified that he observed a green leafy substance that
appeared to be marijuana on Beal’s clothing.
¶3.
Officer Tarleton stated that he then asked Beal why there was marijuana on his clothing.
According to Officer Tarleton, Beal stated that he had smoked marijuana when he left Alcorn State
and had smoked again before departing from Natchez. Officer Tarleton observed that Beal’s eyes
“were bloodshot, red and very glazy.” Officer Tarleton also testified that Beal appeared to be very
nervous throughout the encounter. Officer Tarleton admitted that he did not perform any field
sobriety tests on Beal, nor did he take a sample of blood or urine for testing. Officer Tarleton stated
that he did not do these things because Beal freely admitted that he had smoked marijuana before
leaving Natchez, which was a relatively short distance away.
¶4.
By contrast, Beal testified that there was no marijuana on his shirt. Rather, he claimed that
there was a printed pattern on the shirt that might have been confusing. Beal admitted that he had
1
Beal has never appealed his conviction for speeding.
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smoked marijuana much earlier in the day, but denied that he had told Officer Tarleton that he had
smoked marijuana immediately prior to leaving Natchez for school.
¶5.
What is undisputed is that, during Beal’s stop, Officer Tarleton received a call requesting his
assistance at an accident scene. Because Officer Tarleton was apparently the only officer on duty
at the time, he issued a citation to Beal and left the scene to respond to the accident. At the circuit
court appeal hearing, Officer Tarleton testified that he did not “allow” Beal to leave the scene,
although he placed Beal’s keys on the trunk of the car and left the scene. Officer Tarleton testified
that the stop was done approximately one hundred yards from the Alcorn State Campus, and further
testified that he mentioned this fact to Beal at the scene. After Officer Tarleton left, Beal drove his
car to school.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶6.
When reviewing the sufficiency of the evidence supporting a conviction, we look at “whether
the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that
he did so under such circumstances that every element of the offense existed; and where the
evidence fails to meet this test it is insufficient to support a conviction.’” Bush v. State, 895 So. 2d
836, 843 (¶16) (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). “[T]he
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 v. Virginia, 443 U.S. 307, 315 (1979)). When reviewing
the decision of a trial judge sitting without a jury, we give the judge “the same deference with regard
to his findings as a chancellor, and his findings are safe on appeal where they are supported by
substantial, credible, and reasonable evidence.” Johns v. State, 926 So. 2d 188, 202 (¶70) (Miss.
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2006) (quoting Chantey Music Pub., Inc. v. Malacoi, Inc., 915 So. 2d 1052, 1055 (¶10) (Miss.
2005)).
¶7.
We find that the evidence is sufficient to sustain Beal’s conviction. At the scene, Officer
Tarleton observed marijuana on Beal’s clothing, noted that Beal’s eyes were blood-shot, and
remarked that Beal appeared to be particularly nervous. Furthermore, Officer Tarleton testified that
Beal stated that he had smoked marijuana a short time before the stop. Clearly, this evidence is
sufficient to sustain Beal’s conviction. Although Beal testified and gave a different account of
events than Officer Tarleton, the court, as the finder of fact, was entitled to believe whatever
testimony it found most credible. Curry v. State, 939 So. 2d 785, 792 (¶23) (Miss. 2006). The
evidence is such that a reasonable fact-finder could have found Beal guilty of first-offense D.U.I.,
and the court’s findings are supported by the evidence.
¶8.
That Officer Tarleton allowed Beal to drive from the scene after Tarleton had charged Beal
with first-offense D.U.I. does not vitiate the fact that sufficient evidence was presented at trial to
undergird Beal’s conviction for D.U.I. However, we take this opportunity to remind our law
enforcement officers that, as announced by the Mississippi Supreme Court, it is improper for an
officer to allow a motorist to continue to drive when the officer has determined that the motorist has
been driving under the influence:
Operating a motor vehicle on a public highway while under the influence of
intoxicants, although classified as a misdemeanor, differs in essential particulars
from the usual “traffic violation.” Apart from the mortal danger to which it exposes
others, the offender may not be given a “ticket,” and sent on his way. He must be
detained and may not be allowed to drive away in his automobile. By force of
circumstances possession must be taken by the officers of the automobile itself for
the time being.
Hogan v. State, 235 So. 2d 704, 705 (Miss. 1970), (emphasis added).
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¶9.
As previously stated, regardless of Officer Tarleton’s handling of the situation, the evidence
is sufficient to sustain Beal’s conviction. Nothing about the officer’s allowing Beal to drive away
from the scene affects whether Beal was actually under the influence when he was stopped initially.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON COUNTY OF
CONVICTION OF FIRST OFFENSE D.U.I. AND SENTENCE OF FORTY-EIGHT HOURS
OF JAIL TIME, SUSPENDED UPON PAYMENT OF A $511.50 FINE, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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