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:

ATTORNEY FOR APPELLANT: WEBSTER COUNTY CIRCUIT COURT

RONALD STEPHEN WRIGHT

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

DISTRICT ATTORNEY: BY: CHARLES W. MARIS, JR.

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 granti ng 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 cont rary to the law and the overwhelming weight of the evidence. C annon v. State,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).

2 2004 WL 1381725 (Miss. Ct. App. 20 04). 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 as serts that the Court of Appeals’ decision conflicts with prior decisions of this

Court. We agree.

FACTS 1

¶2. On Decem

ber 15, 2001, Cannon was stopped by Officer Keith Crenshaw of the Eupora

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

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

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

get some o range 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 Offi cer 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. Offi cer 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 sme lled like alcohol. Officer Yates

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

slurred.3

¶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 rea ding 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

chan ges 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 t

esting on the Intoxilyzer 5000 machine. He blew into the machine three

or four times, but was unable to blow long enough to compl ete 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, co ngestive 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 vari ous 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:4

I. THE CIRCUIT COURT DI D NOT ERR IN NOT GRANTING A

LIMITING INSTRUCTION CONCERNING THE TESTIMONY OF

OFFICER CRENSHAW.

II. THE VERDICT OF THE JURY IS NOT CONTRAR Y 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 inadmissibl e. During the direct

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

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

following exchange transpired:

Q: Okay. And what happened then?

A: At that time I cal

led 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 tes t, 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 appea l 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,5

sua sponte , a specific limiting or cautionary instruction to the jury. S ee Rose v.

State

, 846 So.2d 276(¶ 4)(Miss.Ct.App.2002)(even though de fendant charged

with f irearms violation not prejudiced by testimony that officers smelled

marijuana burning

in his car, trial judge should have issued, s ua 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 th e parties to consider. King v. State , 857 So.2d 702,

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

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

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

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

conviction for a convicted felon in posses sion of a firearm was affirmed on appeal. I d. 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 tha t the trial court did instruct the jury, before it retired to

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

the course of the trial.” S ee 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 H olmes v. State, 740 So. 2d 952 (Miss. Ct. App.

1999), is anal

o gous to the case at hand. In Holmes

, the Court of Appeals held that the trial

court erred in all

owing testimony regarding a horizontal gaze nystagmus (HGN) test after

having granted a motion to suppress that evidence. I d

. at 959. The State contends that H olmes6

can be disti

nguished 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 iss ue. 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 ob jections 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 o n appeal, defense counsel must

offer a mistrial motion after it is established that the evide n ce 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 contin ue with the testimony. The

defense chose the thir d option, and this choice waived the error for our appellate

review.

Cannon , 2004 WL 1381725, at *5.

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

actual res ult 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 cauti

onary 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 over whelming weight of the

evidence. Specifically, the Court of Appeals held:7 Looking, as we must, at all evidence in a light most consistent with the

jury verdict, there i

s little in the record to support a guilty verdict in this case.

No results were obtained from the Intoxilyzer 5000 tests administere d at the

sheriff’ s office. Cannon’s speech was variously described as normal and only

s lightly 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 glu cose 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 t he applicable law. The

State relies on Kingston v. Sta te , 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 evi dence 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

c onflicts 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 resol

ution results from the jurors hearing and observing the

witnesses as they testify, augmented by the composite reasonin g

of twelve individuals sworn to return a true verdi ct. A reviewing

court cannot and need not d etermine with exactitude which

witness or what testimony the jury believed or disbelieved in8 arriving at its verdict. It is enoug h 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 evid ence before the jury to

support the jury's verdict of guilty. Officer Crenshaw testified that he observed

Canno n's vehicle cause another car to take evasive action to avoid a collision.

When he stopped Cannon's vehicl e, 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 aske d 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 tes tified about Cannon's

bloodshot eyes and that they detected the smell of alco hol 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 suffic ient 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 eviden ce 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 giv

ing 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 fi nd that the verdict was not so contrary to the weight

of the evidence that to allow it to stand would san ction an unconscionable

injustice, which is required for th is Court to disturb the jury's verdict on appeal.

See Herring v. State

, 691 So.2d 948, 957 (Miss.1997) (d iscussing the required

standard of review).

Cannon , 2004 WL 1381725, at *5.9

¶19. A motion for new trial challenges th e 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 unle ss the verdict is so contrary to

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

allowing the verdict to stand. G roseclose, 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 t

he case sub judice, the verdict is consistent with the weight of the evidence, and no

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

al cohol 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 Crensh aw 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 Offic er 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.10

¶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 Coun ty Jail. Officer Crenshaw testified that he

detected the sme l l 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 physic ian treating his diabetes.

According to Cannon, his blood su gar 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 diabe tic hypoglycemic

incident, would there be any odor.” Dr. Booth responded, “ N o 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 judg ment 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.11

¶27. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.

CONVICTION OF FELONY DUI AND SENT ENCE OF FIVE (5) YEARS, WITH THE

LAST TWO (2) YEARS POST-RELEASE, WITH CONDITION S

, 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.J J., CARLSON, DICKINSON AND

RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN

OPINION. DIAZ, J., NOT PARTICIPATING.