IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KM-01594-COA MARK SCHLEPPHORST A/K/A MARK E. SCHLEPPHORST APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/30/2014 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: V.W . CARMODY JR. AARON PAUL HOMMELL ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, FINED $900, AND SENTENCED TO FORTY-EIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMENT, W ITH THE SENTENCE SUSPENDED FOR TW O YEARS UNLESS EARLIER INVOKED, AND TW O YEARS OF UNSUPERVISED PROBATION DISPOSITION: AFFIRMED: 03/08/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Mark Schlepphorst was f o und guilty of c om m on-law driving under the inf luence, f irst of f ense, and reckless driving. He appealed to the circuit court, and the conviction was af f irm ed

. S c h lepphorst appeals a nd c laim s t here was i nsuf f icient e vidence to support hisDUI conviction. W e f i nd no error and af

f irm

. FACTS ¶2. Around 11 p.m . on Novem ber 8, 2012, S chlepphorst drove through a Madison County Sherif f ’s Departm ent checkpoint without stopping and ignored the direction of the of f icers. Deputies Mark Sandridge and John McFarland pursued Schlepphorst and pulled him over. ¶3. During the stop, Deputy M c Farland noticed that t he sm e ll of an intoxicating beverage

was com i ng f

rom Schelpphorst’ s c a r a nd that Schlepphorst’s speech was slurred. Schlepphorst then a dm itted that he had “a couple of glasses o f wine” that e vening. Deputy Sandridge took over the stop and instructed Schlepphorst to exit the vehicle. ¶4. Deputy Sandridge testif ied that as Schlepphorst stood outside the v ehicle, he wobbled and exhibited a lack of m uscle control. At tim es h e used the car f or support

. D e p uty Sandridge then conducted three f ield sobriety tests: the horizontal gaze n y stagm u s, the walk and turn, and the one-leg stand. According to Deputy Sandridge, Schlepphorst f ailed each of these tests. ¶5. Schlepphorst t hen s ubm itted to the portable breath test, which exhibited a positive reading f or the presence of alcohol. Deputy Sandridge asked Schlepphorst if he was f eeling
any ef f ects o f the wine, and h e r e s p o n ded, “y es, som e.” At t his point, Schlepphorst was arrested. ¶6. W h en they a rrived a t the sherif f ’s d epartm ent, D eputy Sa n d r i dge saw that the Intoxy lizer was out of order. Schlepphorst w a s o f f e red a u rine test, and h e ref used. Schlepphorst was then charged with DUI and reckless driving.

2¶7. Schlepphorst pleaded no c ontest in justice c ourt and then a ppealed to the c o unty court. Af ter a bench trial, the county court f ound S chlepphorst guilty of both charges. The circuit

court a f f i rm ed the county court’s judgm ent. Schlepphorst’s appeal has been d ef lected here.
STANDARD OF REVIEW ¶8. “The trial j udge in a bench trial acts as the jury f or all purposes o f r esolving issues of f act.” Knight v. State , 14 So. 3 d 76, 78 (¶4) (Miss. Ct. App. 2009) (internal quotations

om itted). W hen the trial judge’s f i ndings are supported b y s ubstantial, credible, an d reasonable evidence, they are saf e on appeal. Id. “This Court will reverse only when the f indings of

the trial judge are m anif

estly wrong or clearly e r

roneous.” Id. ¶9. Schl e p p h o r s t c hallenges t he suf f iciency of the evidence. T hus, t his Court m ust consider “whether the evidence sho w s b e y o nd a reasonable doubt that the accused com m itted the act charged, and that h e did so u nder such circum stances that every elem ent of the of f ense existed.” Jefferson v. State , 151 So. 3d 261, 262 (¶2) (Miss. Ct. App. 2014) (citing Bush v. State , 895 So. 2d 8 36, 843 (¶16) (Miss. 2005)). “W here the evidence f ails to m eet this test it is insuf f icient to support a conviction.” I d. ¶10. This Court does not “ask itself whether it believes that the evidence established guilt bey ond a reasonable doubt.” Id. a t ( ¶ 3 ) (quoting Jackson v. Virginia , 443 U.S. 307, 315 (1979)). Rather, “ the relevant q uestion is w h e t h e r , a f

ter v iewing the evidence i n the light

m ost f avorable t o the pro s e c u t i o n , any rational trier of f act could h ave f

ound t he essential elem ents of the crim e bey o nd a reasonable doubt.” Id. “If the f acts and inf

erences point in f avor of the def

endant o n any one elem ent of t he o f f ense with s u f

f icient f orce that r easonable

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jurors] could not have f

ound bey o nd a reasonable doubt that the def e ndant was guilty ,” the Court will render a judgm e nt of acquittal. Id. at (¶4) (internal quotations om itted).
ANALYSIS ¶11. Schlepphorst f

irs t c h a l l e nges the suf

f iciency of the evidence as to the proof of im p airm ent, the ref

usal of the urine test, a nd the f ield sobriety tests. Second, h e argues that the State did not provide suf f i cient proof

of venue. I. Sufficient Evidence of Common-Law DUI ¶12. Mississippi Code Annotated section 63-11-30(1)(a) ( Supp. 2015) m akes it “unlawf ul f or a p erson to drive or otherwise o perate a vehicle within [ M ississippi] if the person . . . [ i]s

u nder the inf

l u ence of intoxicating liquor.” This is ref erred to a s “com m on-la w D U I

. ” Knight , 14 So. 3d at 79 (¶6). Com m on -aw DUI can be p r oven “[ i]n cases where the def endant’s blood-alco h o l r esults are unavailable but there is suf f icient e vidence that the def endant operated a vehicle under circum stances indicating his ability to o perate the vehicle was im paired by the consum

ption of alcohol[ .]” Id. ¶13. Schlepphorst argues t hat t he State did not provide s uf f icient evidence to prove that he

was im paired a t the tim e of his arrest. In Knight , 14 So. 3d at 81 (¶17), this Court af f irm ed

a com m on-law-DUI c onviction where sim ilar evidence w as presented, including reckless driving, the sm ell of a n alcoholic beverage, an a dm ission t o drinking alcohol, and a ref usal

to subm it to a chem ical test. Then, in Jefferson , 151 S o. 3d a t 2 6 6 ( ¶ 1 1), this Court considered a d

river’s adm ission, the sm ell of an alcoholic beverage, and a p ositive portable breath t est as evidence s upporting a com m on-law-DUI conviction. Evidence o f i m pairm ent

4m ay also includ e “ s l u r r e d speech

. . . o r erratic driving.” Evans v. State , 25 So. 3d 1054,

1059 (¶11) (Miss. 2010). The t y pe of evidence presented is not new f or the courts, and has been considered suf

f icient evidence ma n y t i m es over. See, e.g., Evans , 25 So. 3d at 1059 (¶11) ; Jefferson , 151 So. 3d at 266 (¶11), Knight , 14 So. 3d at 79 (¶7). ¶14. The State presen t e d e v i d e nce through the testim onies of Deputy Sandridge and Deputy McFarland. Both deputies testif ied that Schlepphorst drove recklessly through the checkpoint, despite being instructed to stop. Deputy McFarland testif i ed that he sm elled the odor o f a n intoxicating beverage c om ing f rom inside t h e c a r when h e approached Schlepphorst’s v e hicle. Deputy S andridge n oted that S chlepphorst’s speech was slurred during their conversation a nd that Schlepphorst a dm itted to drinking wine that evening. The portable breath test was r ead p osit i v e f or the presence of alcohol. Schlepphorst later adm itted to Deputy Sandridge that he was f eeling the ef

f ects of t he alcohol. F inally , Schlepphorst r ef

used t he u rine test of

f ered to him at t h e sherif f ’s departm e nt. The trial
court’s judgm ent is supported b y substantial, c redible, and reasonable evidence. This Court f inds that the evidence was suf f icient to prove com m on-law DUI. ¶15. Next, Schlepphorst challenges the accuracy of the f ield s o briety test. He argues that his knee problem s and glaucom a prevented him f r om perf orm i ng well on the tests and caused him to sway as he stood outside of his car. Schlepphorst called Dr. Jim m y Valentine to testif y as an expert in the f

ields o f “m edical toxicology , phy s iology , f ield sobriety exercises, and the ef

f ects of a lcohol and drug s on hum an beings.” Dr. Valentine testif ied that Schlepphorst was not a suitable candidate f o r t he f ield s obriety tests due t o his ey e and knee

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¶16. Based on Dr. Valentine’s testim ony , the county court chose n ot t o consider the f ield sobriety tests or Schlepphorst’s instability in its decision. Even giving Schlepphors t the “benef it of the doubt” as to his health p roblem s, the county court f ou n d t h a t t h e r e was suf f i cient evidence to establish com m on-law DUI. ¶17. Schlepphorst f

urther argues that the county court s h ould not h ave consi d e r ed the ref usal of the urine test because he was only r eq u i r e d b y s t a tute to subm it to a breath test. But Mississippi Code Annotated section 63-11-5(1) ( S upp. 2015) states that a person who operates a vehicle on public roads in Mississippi is d eem ed to give c onsent to “a chem ical

test or tests of his breath f or the purposes of d eterm ining alcohol concentration.” “If a
person u nder arrest ref

uses to subm it to a chem ica l t e s t

. . . , evidence of ref usal shall be adm issible in any crim inal action

. . .” Miss. C ode A nn. § 63-11-41 (Rev. 2013). “Chem ical
test” a s d e f

i n ed in the code “m eans an analy sis of a p erson’s blood, breath, u rine or other bodily s ubstance f

or the d e term ination of t he presence of alcohol

. . . . ” Miss. Code Ann. § 63-11-3(c) (Rev. 2013). Deputy Sandridge of f ered Schlepphorst a urine test, and he ref used.
A u rine test constitutes a c h e mi c a l test under the statute. His r ef usal of the urine test is adm issible under the statute.
II. Sufficient Evidence of Venue ¶18. Schlepphorst f

inally argues that the State f ailed to provide suf

f icient proof of venue. “[ T]he State bears the bur d e n o f p r oving venue bey ond a reasonable doubt.” Lee v. State , 910 So. 2d 1123, 1126 (¶10) (Miss. Ct. App. 2 005). “Direct or circum s tantial evidence m ay

6be used to prove venue.” Id. “As long as the evidence is suf f icient to l ead a reasonable trier of f act to conclude that the crim e in the present case occurred at least partly in [ Mad ison] County , then t he e vidence of venue is suf f icient.” Hill v. State , 797 So. 2 d 9 14, 916 (¶12) ( M i s s . 2001). Deputy Sandridge’s testim ony that the events occurred in Madison County was suf f i cient to establish venue. Finding no error, the Court af f irm s. ¶19. THE JUDGMENT O F THE MADISON COUNTY C I RCUIT COURT OF CONVICTION OF DRIVING UNDER THE I NFLUENCE, F IRST OFFENSE, FINE OF $900, AND SENTENCE O F FORTY-EIGHT HOURS IN THE CUSTODY OF THE M ADISON C O UNTY SHERIFF’S DEPARTMENT, WITH THE SENTENCE SUSPENDED FOR TW O Y E A R S UNLESS EARLIER INVOKED, AND TWO YEARS OF UNSUPERVISED PROBATION I S AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING, P.J., BARNES, ISHEE, C ARLTON, FAIR, JAMES AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.

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