IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KM-00432-COA KIMBERLY C. SELLERS A/K/A KIMBERLY CHENILLE SELLERS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/22/2013 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHARLES BRUCE BROW N ATTORNEY FOR APPELLEE: CAROLINE MOORE CITY ATTORNEY: ROY E. CARPENTER JR. NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCED TO PAY A FINE OF $600 DISPOSITION: AFFIRMED: 05/26/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. K i m

berly Sellers was convicted of f irst-of f ense DUI af

ter s h e w a s s t o p p e d a t a driver’s license checkpoint in Starkville. A subsequent Intoxilizer test revealed her bloodalcohol content to be .088, in excess of the legal lim i t. On a p p e a l , S e llers a rgues that the circuit court erred in f

ailing to suppress any evidence stem m ing f rom the stop, because the of f icer who screened Sellers at the checkpoint did not t estif y at t rial. W e f

ind that this issue

was waived, but even if it w as not, there was suf f icient evidence f

or t he court to have f

oundextended detention was justif i ed by reasonable suspicion. DISCUSSION 1. Suppression of Evidence Stem m ing from Stop ¶2. Sel l e r s d o e s n o t c hallenge the initial stop at the saf ety checkpoint, but, rather, the

a p p a r e n t diversion and extended detention of her v ehicle f o r f urther exam ination. Our analy sis of this issue i s com p licated by S ellers’s f

ailure to properly raise i t i n the trial court. Sellers did not m ove t o suppress the evidence stem m ing f rom the stop prior to trial. W hen the prosecution presented its prim ary witness, the DUI o f f i c e r to whom Sellers had apparently been directed by an init i a l s c r e e n ing of f icer, Sellers objected on the basis that there was no “probable cause” to stop her vehicle. The objection was overruled. Sellers’s attorney n ever asked f

or a suppr e s s i o n hearing, and he only ever said the word “suppress” when arguing f

or a directed verdict af

ter the prosecution had presented its entire case. ¶3. Sellers erroneously c onte n d e d (and, indeed, continues to argue) that extending her detention required p robable cause. Instead, an investigatory stop requires only reasonable, articulable suspicion that the person has com m i tted or is a bout to com m it a crim e . Eaddy v. State , 6 3 So. 3d 1209, 1213-14 (¶¶13-16) ( Miss. 2 011). It is well e stablish ed that “[ o]bjection on o ne ground at trial waives all other grounds f or o bjection on appeal.” Carter

v. State , 7 2 2 S o . 2 d 1258, 1261 (¶13) (Miss. 1998) (citation o m i tted). S ellers waived this issue by f ailing to present a coherent, tim ely m otion to suppress. ¶4. Also, because S e l l e r s f a i l e d t o mo v e t o s uppress the evidence, there was no

2suppression hearing, and the exact circum stances s urrounding the stop were not thoroughly

explored at trial. It does a

ppear that Sellers w as subjected to a lengthier detention than others

at t he checkpoint, prior to the second of f icer obtaining r easonable suspicion t o hold her, but this was never directly

shown. ¶5. Not w i t h s t a n d i n g Sellers’s f ailure to p reserve the issue, her argum ent appears to be without m erit. W hether reasona b l e s u s p icion exists is reviewed de novo, but the f actual determ inations that underlay that question a re su b j e c t t o the m o re def

erential s u

bstantial

e v i d e n c e standard. Eaddy , 63 So. 3d at 1212 (¶11). The DUI of f icer testif ied that h e im m ediately noticed the sm ell of an intoxicating beverage that was “em itting” f rom the

v ehicle, and that Sellers was wearing a paper b racelet like the ones required by l o c a l establishm ents that serve alcohol. The odor of an alcoholic beverage is suf f icient to establish reasonable suspicion f

or a n i n v e s tigatory s top. W atts v. State , 78 S o. 3d 901, 904 (¶13) (Mis s. 2 012). These things were in plain sight (or sm ell, as i t were), and the circuit court could have r easonably inf erred that the f

irst of f icer h ad also observed them m om ents bef ore, giving him

reasonable suspicion to detain Sellers f o r f urther investigation. ¶6. W e conclude that the issue of the legali t y o f t h e e x t e nded detention, assum ing it occurred, was not properly p reserved in t h e t r ial c ourt. I n the alternative, it appears to be without m erit. 2. Cause to Order Breath Test ¶7. Sellers next a rgues that of f icers lacked suf

f icient cause to d em and that she subm it to

3a b reath t est, which was u ltim a tely adm inistered and produced an incrim inating result. The

DUI o f f icer testif ied that, in a ddition to sm elling of alcohol, Sellers t o o k a n d f ailed three f ield sobriety tests: Sellers dem onstrated six of six clues on the horizontal gaze n y stagm us test, f our of eight c lues on the walk-and-turn test, and two of f our clues on the one-leg-stand

test. Sellers attacks the way the tests were adm inistered, the of f i cers’ recollection of one of the clues, and the like; but she presents only a s i ngle authority in support of her argum ent: Holmes v. State , 740 So. 2 d 952 (Miss. Ct. App. 1999), which she erroneously argues entirely prohibits the use of horizontal gaze ny s tagm us test. This Court actually stated: “[ T]he HGN

test can still be u sed to p r ove probable cause t o arrest and adm inister the i ntoxilizer or blood test.” Id. at 956 (¶10) ( q uoting Y oung v. City of B rookhaven , 693 So. 2d 1355, 1360-61 (Miss. 1997)). ¶8. As Sellers has f

ail e d t o s u p p o r t her other argum ents with authority , the rem aining contentions have been w aived. Corrothers v
. State , 148 So. 3d 278, 3 23 (¶130) (Miss. 2014). 3. Sufficiency of the Evidence ¶9. Finally , Sellers (apparently ) contends that the evidence was insuf f i cient to support her conviction, based on the t estim ony of h er expert t hat she had not been intoxicated at the t im e

s h e w as d riving. The expert em

ploy ed “retrograde extrapolation” to explain that Seller s ’ s blood-alcohol level had increased af ter she was stopped. ¶10. T h i s issue has also been waived because it is entirely u nsupported b y a u t h o r i t y . Corrothers , 148 So. 3d at 323 (¶130).

4¶11. In the a lternative, the circuit court, a cting as the f inder of f a ct, had “the prerogative

to accept or reject, in whole or p art, the testim ony of a n y w i t n e s s, expert or lay .” Smith v. State , 925 So. 2d 825, 8 39 (¶33) (Miss. 2006). It could have rejected t he expert’s op i n i on f or any num

ber of reasons; but the m ost obvious would be the expert’s a d mi s s ion that he reached his conclusion based o n data p rovided to him b y Sellers’s attorney , a nd that he did

not know its source. The expert did not independently verif y the underly ing data (i.e., how

m uch alcohol Sellers consum ed and when, how m uch s he weighed, etc.), nor were t hese f acts established by

irref u table proof

at trial. ¶12. T h e circuit court did not err in rejecting the retrograde e xtrapolation def ense. T h i s issue was waived and, in the alternative, is without m erit. ¶13. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA CO U N TY OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND F INE OF $600 IS AFFIRMED. ALL COSTS OF THIS A P P E AL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING AND G R I F F IS, P.JJ., BARNES, ISHEE, ROBERTS, MAX W ELL AND JAMES, JJ., CONCUR. CARLTON, J., N OT PARTICIPATING.

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