IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2019-KA-00410-COA TERRY DUSTIN BAUGHMAN A/K/A TERRY D. BAUGHMAN A/K/A TERRY BAUGHMAN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/27/2019 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO COURT FROM W HICH APPEALED: MARION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 04/07/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., GREENLEE AND LAWRENCE, JJ. GREENLEE, J., FOR THE COURT: ¶1. Terry Bau g h ma n w a s c o n victed in t he Marion C ounty Circuit Court f o r Count I, possession o f Oxy codone, in violation of Mississippi C ode Annotated s ection 4 1-29-139(c) (Rev. 2018) and Count II, driving under the inf l uence of “any other substance,” in violation of Mississipp i C o d e A nnotated section 63-11-30(1)(b) (Rev. 2013). Baughm an was also f oun d t o h a v e violated section 63-11-30(2)(d) f or having a f

ourth or subsequent DUI conviction. Baughm a n was s entenced, as a nonviolent habitual of f ender, to serve three y ears f or Count I and t en y ears f or Count I I i n t he c u s t o d y o f the M ississippi Departm ent ofCorrections. T he court ordered B aughm a n’s sentences t o run consecutively a n d Baughm an

to pay court costs, a $1,000 f ine f or his conviction in Count I, a $3,000 f i ne f or his conviction in Count II, $500 to the Public Def ender’s Reim

bursem e nt Fund, $500 to t h e D istrict Attorney Investigative Fund, and $500 to the Colum bia Police Departm e nt. ¶2. Af ter the denial of his m otion f or a judgm e n t notwithstandi n g t h e verdict or, in the alternative, a new trial, Baugh ma n a p p e a led. B aughm a n claim s (1) t here was insuf f icient evidence t o support the jury ’s v e rdict in Count I I , ( 2 ) t he jury ’s verdict in Count II was against t he overwhelm ing w eight of the evidence, a n d (3) it was plain e rror f or the trial court
to a dm it the testim o ny of two police of f icers without the of

f icers f i rst be i n g t e n d e r ed and accepted as expert witnesses. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. At trial, O f

f i c e r J a s o n C o ok with the Colum bia Police Departm ent testif ied that around 8:30 p.m . o n March 15, 2017, he o bserved a vehicle d riving on H ighway 98 with one h e a d light. As a result, J ason 1 initiated a t raf f i c stop at a nearby O’Reilly Au t o P a r t s i n Colum bia, M ississippi. W h ile speaking t o the driver, who was identif ied as Terry Baughm an, J a s o n noticed that he had slow to slurred s peech, his ey e s were bloodshot and glossy , and he sm e lled of m arijuana. Jason t e s t i f ied that, based on his training and experience, he believed Baughm a n was possibly im paired or under the inf

luence. ¶4. Jason asked Baughm an to step out of the vehicle and patted him down. He f

ound a

sm all m etal pipe in Baughm an’s pocket and a h alf -sm oked cigarillo i n B aughm a n ’s wallet.

1 F o r read ab ility , w e r ef

er to O f f icer Jaso n C o o k a n d O f

f icer N ate C o o k b y th eir f

irst n am es. 2Both c ontained a “burnt green, l eaf y -like substance.” Jason testif i ed t h a t b a sed on his training, k n o w l e d ge, and experience, he believed the substance was m arijuana. He also f ound a container of

Suboxone strips. 2 ¶5. Although Jason had f ield-sobriety certif

ications, he called DUI Of f icer Nate Cook to th e s c e n e . A c c o r ding to Jason, it was ty pical to call the DUI of

f icer so the patrol of

f icers

cou l d respond to other c alls. W hen Nate arrived, Jason told him that h e was c oncerned Baughm an was possibly under the inf luence. ¶6. W h ile Nate adm inistered f i eld-sobriety tests, Jason searched B a ughm an’s vehicle and f ound “ a c o u ple o pen containers of a lcohol.” According to J ason, there were three other occupants in the vehicle. He patted t hem down a n d r a n t heir inf orm ation but did not take

statem ents f

rom them

. According to J ason, he did not f ind any drugs on t he occupants, and they did not sm ell of

m arijuana. Theref

ore, they were released. ¶7. Baughm an was ultim ately arrested f or driving under the i n f

l u e nce and handcuf

f ed;
Nate then transported h i m to jail. Jason r e ma i n e d at the scene until a tow truck arrived. Around 10:30 p .m ., Nate r eturned to the scene and told Jason t hat he f ound p ills inside a prescription bottle with Baughm a n’s nam e on i t i n the backseat of his law-enf orcem ent vehicle. ¶8. Jason adm itted that Baughm an’s b lood and/or urine was not tested. However, based

on his training and experience, h e b e lieved B a ughm an was i m

p aired f rom , or under the inf luence of , m arijuana. Jason testif

ied that his o pinion was based on the f act that a green,

2 Jaso n testif

i ed th at S u b o x o n e strip s ar e u s u ally p rescrib ed to p eo p le w h o are reco v erin g f

ro m o p io id u se. 3leaf

y substance was f

ound in t he pipe and cigarillo, a nd Jason testif ied that h e d id not sm ell alcohol on Baughm an. ¶9. Nate also testif

ied at trial. N ate was c ertif ied in standardized field-sobriety testing and advanced roadside im

pairm ent driving enf

orcem e nt. He testif

ied that of f icers contacted h im when they suspected t hat a person was under the inf luence, r e g a r d l ess o f whether the contacting of

f icer was certif

ied in f ield-sobriety testing. ¶10. W h en he arrived a t the scene, h e a s k e d Baughm an to walk to his law-enf orcem ent vehicle. Accordi n g t o Nate, Baughm an exhibited gait ataxia (i.e., s taggering and unstead i n e s s ) a nd leaned a gainst the vehicle. He also had slurred speech and sm elled of

m arijuana. Nate testif

ied that Baughm an ref

used a blood test but agreed to subm it to fieldsobriety t esting in the O’Reilly Auto Parts parking lot. ¶11. The w alk-and-turn test w as adm inistered fi r s t

. B a u g h m a n was instructed to stand with his f e et i n a heel-to-toe position and to keep his arm s by his side. He was then instructed to take nine steps down a line and nine steps back. Nate dem o nstrated the test, a n d Baughm an said h e understood t he instructions. He also said that he did n ot have any m e dical issues that would p revent him f

rom perf orm ing the test. Nate testif ied that there are eight clues to look f or when scoring the test. The eight clues are whether the person (1) s tarts the test too soon, (2) does not touch heel-to-toe, (3) s teps of f the l ine, (4) uses his arm s to balance, (5) is unable

to balance, (6) turns incorrectly , (7) stops while walking, o r ( 8) takes an incorrect am ount of steps. Nate explained that two clues indicate i m pairm ent, an d B a u g h ma n display ed f ive clues. Accordi n g to Nate, Baughm an started the test t oo soon, did not touch h eel-to-toe,

4stepped of

f the line, stopped while walking, and took an incorrect num ber of steps. ¶12. Then Nate adm inistered the one-leg stan d t e s t

. B a u g h m an was i nstructed to stand with his f eet together and to k eep his arm s b y his side. He was instructed t o then elevate one of h is f e et six inches, keep it level with the ground, a nd count until h e was told t o stop. Nate testif i ed t hat t here are f

our clues to look f

or when scoring the t est. These clues are whether the person (1) u s es his arm s to balance, (2) sway s while his f oot is elevated, (3) hops on one f oot, or (4) puts his f

o o t down. Nate explained t hat two clues indicate im pairm ent, and Baughm an exhibited three clues. According to Nate, Baughm an used his arm s to balance,
sway ed while his f

oot was elevated, and put his f oot down. ¶13. Nate also adm inistered the Rom berg test. Baughm an was instructed to stand with his f eet toge t her, tilt h i s h ead back, close his ey es, and estim ate the passage of thirty seconds.
Once he b elieved thirty seconds had passed, he was to bring his head f o rward, open his ey es, and say stop. H owever, Nate t estif ied that B aughm a n estim ated that t hirty s e c o n ds had passed when f

o rty -three s econds had actually passed. Nate explained that this indicated that Baughm an’s internal clock had slowed, possibly fr o m u s i n g a C e n t r a l N e rvous S y stem (CNS) depressant a nd cannabinoid or a narcotic analgesic. Nate testif ied t h a t B a u g hm an also exhibited ey elid trem ors during the test, which was indicative of cannabinoid use. ¶14. Finally , Nate a dm inistered the lack-of -convergence test. He placed the end of a pen approxim a tely twelve to f ourteen inches f

rom B aughm an’s f

ace, m o ved i t in one d irection, and then m o v e d t oward his ey e s. Nate testif ied that Baughm an exhibited a lack of
convergence, or the inability to cross his ey es, which suggests use of “ depress[ ants] and som e

5inhalants, the social anesthetics and cannabinoid.”

¶15. Nate testif

ied t hat, b ased on his training and experience, he believed B aughm an was under the inf

l u e n c e. Nate explained that h is opinion was b ased on the f ield-sobriety test results. According to Nate, af ter he arrested and transported Baughm an to jail, he f ound a prescription bottle b etween the seats in the b ack of his vehicle. The prescription was f or Alprazolam , which is a CNS depressant, and it was prescribed to Baughm an. H owever, Nate testif i ed that a pi l l i d entif

ier indicated that the bottle contained Alprazolam ; Carisoprodol, which is also a CNS depressant; and Oxy codone. ¶16. Nate explained that s om eone under t h e i n f l uence of a CNS depressant will appear sim ilar t o som eone who is u nder the inf luence of alcohol. That i s, he or she w ill usually exhibit sluggishness, slurred speech, and gait ataxia. And, based on his train i n g a n d
exp e r i e n c e , Nate testif

ied t hat Baughm an exhibited these qualities. W hen asked what qualities Baughm an exhibited that were i ndicative of being under the inf luence of m arijuana, Nate stated that he exhibited ey elid trem o rs and a lack of convergence. He also stated that Baughm an’s slow, lethargic m ovem ents could be attributed to m arijuana use. ¶17. Finally , Jacqueline Gledhill, a f orensic s c i e n t i s t w i t h t h e M i s s issippi Forensics
L a boratory testif

ied t hat she determ ined that f ive of the pills were Oxy codone, a Schedul e II controlled substance. ¶18. Af ter considering the e vidence presented a t t rial, t he jury f o und Baughm an guilty o f
Count I, possessing O xy codone, and Count II, driving under th e i n f l u ence o f “ any other substance.” On appeal, Baughm an claim s ( 1) there was i nsuf f icient evidence to support the

6jury ’s verdict in Count II, ( 2 ) t h e j u r y ’ s verdict in Count II was a gainst the overwhelm ing

weight o f the evidence, and (3) it was plain error f or the trial court to adm it portions of the of f icers’ testim ony

without them

being tendered and accepted as expert witnesses.
DISCUSSION
I. Sufficiency of the Evidence 3 ¶19. Baughm an claim s there w a s i n s u f f i c i e n t e vidence t o support the j ury ’s v erdict in
Count I I. Specif

ical l y , Baughm an claim s the State f ailed t o prove t hat he was under the inf luence of “any other substance.” 4 ¶20. W h en reviewing a challenge to the suf f iciency of the e vidence, “ t he relevant question is wh e t h e r , a f

ter viewing the evidence in the light m ost f avorable to the prosecution, any rational trier of f

act could have f

o und the essential elem e nts of t he crim e bey ond a r easonable doubt.” Reynolds v. State , 227 So. 3d 428, 436 (¶32) (Miss. Ct. App. 2017) (quoting Bush

v. S tate , 89 5 S o . 2 d 8 3 6, 843 (¶16) (Miss. 2005), overruled on other grounds by Little v. State , 233 So. 3d 288, 2 92 (¶¶19-20) ( Miss. 2017)). “The issue on appeal is not whether the reviewing court would have f ound the def

e n d a n t g u i lty ; rather, the conviction m ust be

3 A lth o u g h B au g h m an co m b in es h is arg u m e n t s reg ard in g th e su f f icien c y an d w eig h t o f t h e ev id en ce, th ese are tw o v e ry sep arate issu es. H o rto n v. S t

a te , 9 1 9 S o . 2 d 4 4 , 4 9 (¶1 8 ) (M iss. 2 0 0 5 ). T h eref

o re, w e ad d ress th em

sep a rately

. 4 B au g h m an a s s e r t s t h a t th e trial co u rt e r red b y d e n y in g h is m o t io n f o r a d irected v erd ict. H o w ev er, “ [ a] m o tio n f o r a d irected v erd ict, r eq u est f o r p erem p t o r y in stru c tio n , an d m o tio n f o r j u d g m en t n o tw ith stan d in g th e v e r d ict all ch allen g e th e l e g al s u f f icien cy o f th e ev id e n c e .” T

o tt v. S t a te , 8 2 2 S o . 2 d 1 0 8 4 , 1 0 8 8 (¶1 0 ) (M iss. C t. A p p . 2 0 0 2 ) (citin g M cC la in v. S ta te , 6 2 5 S o . 2 d 7 7 4 , 7 7 8 (M i s s . 1 9 9 3 )). B ecau s e “each req u ires c o n sid eratio n o f th e ev id e n c e b ef

o re t h e c o u rt w h en m ad e, th i s C o u r t p ro p e rly rev iew s th e ru lin g o n th e last o ccasio n th e ch allen g e w as m ad e in t h e trial co u rt.” Id

. T h is o ccu rred w h en th e trial co u rt d en ied B au g h m an ’ s m o tio n f o r a j u d g m en t n o tw ith stan d i n g t h e v erd ict.

7a f

f irm ed if t here was suf

f icient evidence f

or ‘any rational trier of f

act’ to have rendered a guilty verdict.” Id

. ¶21. At trial, the State p r e s e n t e d e v i d e n c e that B aughm an’s ey e s were bloodshot, he exhibited ey elid trem ors during the R om berg test, h e display ed a lack of convergence, and he did not successf

u lly com p lete the walk-and-turn test or the on e - l e g -stand test. Our

su p r e me c o u r t and this Court have f ound that sim ilar evidence was suf f icient to support a f inding that the def

endant was under the inf

luence of m a r ijuana. S

ee W arwick v. State , 179 So. 3d 1069, 1073-74 (¶15) (Miss. 2015); accord W eil v. State , 936 S o. 2d 400, 403-04 (¶¶5- 6) (Miss. Ct. App. 2 006). Furtherm ore, Jason testif ied t hat B a

ughm an was the only person in the vehicle who sm elled of m arijuana and did not sm ell of alcohol. He also testif ied that he f ound a “burnt, green leaf

y -like substance” in a pipe that was f o und in Baughm an’s pocket and in a c i garillo that was f o und i n his wallet. N ate testif ied that he sm elled m arijuana on Baughm an’s person as well. W e f ind that this w as suf

f icient evidence f

or any rational trier of f act to f ind that Baughm an was guilty of being under the inf lue n c e o f “ a ny other substance.” ¶22. Baughm an t akes issue with the f act that his blood o r urine was not t ested. H owever, he ref u sed such testing, and this Court has af f irm e d DUI convictions where blood and urine testing was not done. Beal v
. State , 958 So. 2d 2 54, 255-57 (¶¶3, 9) ( Miss. Ct. App. 2007). Baughm an also argues that the S tate did not produce evidence of two specif i c indicators of

m arijuana usage: lowered inhibitions and increased appetite. However, the State produced evidence o f o ther indicators of m arijuana usage. A s d iscussed, the evidence presented at trial

8is s uf

f icient to sustain Baughm an’s conviction f or driving under the inf

luence of “any other substance.”
II. Weight of the Evidence ¶23. In the alternative, B a u g h ma n c l a i ms the jury ’s verdict in Count II was against the overwhelm ing weight of

the evidence. ¶24. W h en reviewing a challenge to the weight of the evidence, “we will onl y d i s t u r b a verdict when it is so c ontrary to the overwhelm ing weight of the evidence that to allow it to stand would sanction an u nconscionable injustice.” Lloyd v
. State , 228 So. 3d 9 53, 956 (¶9) (Miss. Ct. App. 2017) (quoting Bush , 895 S o. 2d at 844 (¶18)). T he evide n c e mu s t be viewed “ in t he light m ost f avorable to t he verdict, and we m u st a f f i rm unless the trial court abused its discretion in deny ing a new trial.” Id . (quoting B u sh , 895 So. 2d at 845 (¶19)). ¶25. Baughm an argues that, considering the evidence, it was m ore likely that he was under the inf luence of alcohol than a ny other substance. And rely ing on Of f ice r Nate Cook’s testim o ny , he a rgues that the e f f ects of CNS depressants and alcohol are indistinguishable. However, both of

f icers testif

ied that they did n o t s mell alcohol on Baughm an. And Baughm an’s argum ent ignores the f act that the State presented suf f ic i e n t evidence that he was under the inf

luence of m arijuana.
III. Officers’ Testim ony ¶26. B a u g hm a n claim s the trial court com m itted reversible error by adm itting test i mo n y f rom Of f icers Jason Cook and Nate Cook without them f i rst being t endered and accepted as expert witnesses. “The adm ission of testim ony is within the sound d iscretion of the trial

9court.” Christian v. State , 859 So. 2d 1068, 1070 (¶5) (Miss. Ct. App. 2003).

¶27. Because there was no o b j e c t i o n at trial, Baughm an did not preserve t his issue f or appellate review. Theref ore, this issue is procedurally barred, a nd our review is restricted to the plain-error doctrine. The plain-error d octrine allows consideration of the f ollowing: Obvious error [ that] w as not p r o p e rly raised by the def endant and which af f ects a d ef

enda n t ’ s f

u ndam ental, s ubstantive right. For the p lain-error doctrine to apply , there m ust have been an error t hat resulted in a m an i f e st m iscarriage of j ustice or seriously af f e cts the f airness, integrity , or p ublic reputation of

judicial proceedings. Hollingsworth v. S

tate , 269 S o. 3d 456, 458-59 (¶8) (Miss. Ct. App. 2 018) (quoting Johnson
v. State , 155 So. 3d 733, 738-39 (¶8) (Miss. 2014)). ¶28. Af ter reviewing the record, we conclude that t he adm i ssion of the of f icers’ testim ony did not constitute p l ain error. Furtherm ore, this Court has held that a n of f icer m ay testif

y as
to his personal observations of t he def endant without being tendered as expert. Christian , 859 So. 2d at 1071 (¶10).
CONCLUSION ¶29. The jury ’s verdict in Count II was supported by suf f icient evidence and was not against the overwhelm ing weight of the evidence. Additionally , the adm ission of the of f icers’ testim ony

did not constitute plain error. Theref ore, we af f irm Baughm a n’s convictions and sentences. ¶30. AFFIRMED. BARNES, C.J., C ARLTON AND J. W ILSON, PJJ., WESTBROOKS, McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEP A R ATE WRITTEN OPINION. T INDELL, J. , CONCURS IN RESULT O N L Y WITHOUT SEPARATE

1 0WRITTEN OPINION.

1 1