IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KM-01225-COA RANDOLPH PARKES FANCHER A/K/A RANDOLPH P. FANCHER A/K/A RANDOLPH FANCHER A/K/A RANDOLF PARKES FANCHER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/13/2014 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: KEVIN DALE CAMP JARED KEITH TOMLINSON ATTORNEY FOR APPELLEE: JOHN G. (TRAE) SIMS III CITY PROSECUTOR: JOHN G. (TRAE) SIMS III NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: AFFIRMED CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRSTOFFENSE, AND SENTENCE OF FORTYEIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMENT, W ITH THE SENTENCE SUSPENDED FOR TW O YEARS, PLACED ON TW O YEARS OF UNSUPERVISED PROBATION, AND FINED $900 DISPOSITION: AFFIRMED - 02/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND ISHEE, JJ. ISHEE, J., FOR THE COURT: ¶1. Af ter a t raf f ic stop and arres t i n D e c e mb e r 2 0 1 2 , Randolph P arkes Fancher was convicted in the Madison C ounty County Court of driving under the inf

luence (DUI), f

irstof

f ense, and careless driving

. H e was sentenced to f orty -eight h ours in the custody of the Madison County Sherif

f , w ith his senten c e suspended f o r two y ears, and p laced on unsupervised probation f or two y ear s . A g grieved, Fancher appeals to this Court. Finding no error, we af

f irm

. S TATEMENT OF FACTS ¶2. O n D e c e mb e r 2 8 , 2 0 1 2 , Fancher was pulled o ver while driving his v e h i c l e i n Madison, Mississippi. O f f icer Ty ler Burnell of the Madison P olice Departm ent testif ied that he initiated the traf

f ic stop af ter witnessing Fancher t raveling approxim ately f if teen m iles per hour over the f

if ty -m i le-per-hour speed lim it and weaving his vehicle over t he f og line and the divider line. ¶3. Of f icer B urnell t estif

ied t hat as he approached the vehicle, he observed the sm ell of

an intoxicating beverage inside the vehicle and on Fancher’s breath. W hen Of f icer Burnell asked Fancher if he had consum ed alcohol that evening, Fancher responded that he had not been d rinking. However, later in the evening, Fancher noted to Of f icer B urnell that he had taken several doses o f Ny Quil due to upper-respir a t o ry i ssues. Of f icer Burnell asked Fancher

to exit the vehicle. Fancher com plied, and walked to the f

ront of Of f icer Burnell’s patrol car without issue. Of

f icer Burnell did not observe any indicators of intoxication when Fancher was walking to the f

r ont of the vehicle. Of

f icer Burnell asked Fancher if he would subm it

to a portable breath-alcohol test, which Fancher declined. H o w e v e r , F ancher agreed to subm it to a f

ield sobriety

test. ¶4. Prior to conducting t he f ield sobriety t est, Fancher advised Of f icer B urnell that he had

2ankle problems t h a t af f ected his balance while s tanding and walking. As such, Of f icer Burnell only c onducted a h orizontal-gaze-ny stagm us (HGN) test. Of

f icer Burnell testif

ied that Fancher f

ailed the HGN test. Accordingly , Fancher was placed under arrest f or DUI, and e scorted to t he police s tation. At the police station, Fancher was asked to subm it to an Intoxily z er 8000 breath-alcohol test. He declined, and was booked f or DUI f irst o f f ense and careless driving. ¶5. Fancher p l eaded n olo contendere i n t h e M a d i son County Municipal Court in April 2013, and was convicted of b o th of f enses. He appealed his case t o t he county court, which f ound him guilty of both charges a f ter a trial de novo. On appeal, the circuit court af f irm ed the county court’s judgm ent. Fancher n ow a ppeals his conviction and sentence f or the DUI charge to this Court. DISCUSSION ¶6. F a n c h e r contends that the county court erred in deny ing his m otion f or a directe d verdict because th e evidence was not s uf f icient to support his DUI conviction. Fancher f urther argue s t h a t t h e c ounty court im properly considered his ref usal to subm it to the Intoxily z er 8000 breath-alcohol test as proof o f his guilt. The Mississippi Suprem e Court h a s n oted that i n considering the denial of a m otion f or a directed verdict, “the relev a n t question is whether, af

ter viewing the evidence in the light m ost f a vorable to the prosecution,
any rational t r i e r o f f

a c t could have f

ound the e ssential elem ents of the crim e bey ond a reasonable doubt.” Bush v. S tate , 895 So. 2 d 8 36, 843 (¶16) (Miss. 2005) (quoting Jackson v. Virginia , 443 U.S. 307, 315 (1979)).

3¶7. In the case at hand, Fancher was convicted u nder Mississippi C ode Annotated section

6 3 -11-30(1)(a)-(b) (Supp. 2 015), which s tates: “It is unlawf u l f o r a p erson to d r i v e o r otherwise operate a vehicle

. . . i f the person . . . [ i]s under the inf luence of intoxicating liquor[ ] [ or] [ i]s under the inf l uence of any o ther substance that has im paired the person’s ability to operate a m otor vehicle[ .]” ¶8. At trial, the evidence bef ore the c o unty c o u r t c o n s i s t e d o f t h e f ollowing: (1) the testim o ny of Of

f icer Burnell regarding Fancher’s speeding and weaving in the road and the

sm ell of a l cohol em anating f rom Fancher’s v ehicle and breath; (2) Fancher’s adm ission that he had taken Ny Quil that evening but had not consum e d alcohol; and (3) Fancher’s ref usal to subm it to the Intoxily

zer test. ¶9. W h ile Fancher discusses Of f icer Burnell’s tes t i m o n y that Fancher had f a iled the HGN test, it is well settled that the f a ilure of an HGN test only serves as probable cause on which

an arrest m ay be m ade f

or DUI, not evidence to support a DUI conviction. See Richbourg v. State , 744 So. 2d 352, 357 (¶14) (Miss. 1999); Y oung v. City of Brookhaven , 693 So. 2d 1355, 1360-61 ( M i s s. 1997). As such, Fancher’s f ailure of the HGN t est should not have been introduced as e vidence of Fancher’s guilt. As noted previously , the record ref lects that the c o unty court d id not m ention the HGN test when discussing its reasoning f or f inding Fancher guilty

of DUI. ¶10. Fancher argues that his ref usal to subm it to the Intoxily zer test should n ot have been used as substantive guilt against him

. However, M ississippi Code Annotated section 63-11- 41 ( Re v . 2 0 1 3 ) states that “[ i ]f a person under arrest ref uses to subm i t to a c hem ical test

4[ s u c h a s t h e Intoxily z er], evidence of ref

usal shall be adm issible[

. ]” T hat said, ref usal to subm it to an Intoxily

zer t est d o e s n ot, by i tself , substantiate a DUI conviction. Rather, credible evidence on the whole m ust establish bey ond a r e a s o nable doubt that a def endant had consum ed either i ntoxicatin g l i q uor or another s u bstance and that the c o nsum ption im p aired the def

endant’s ability

to operate a m otor vehicle. ¶11. T he rem a ining a

pplicable eviden c e i n c l u d e s O ffi c e r B urnell’s testim ony that Fancher

was speeding and weaving in the road, Of f icer Burnell’s testim ony that he sm elled alcohol in Fancher’s vehicle and on F ancher ’ s breath, and Fancher’s adm ission to having taken Ny Quil, along with his insistence that h e had not consum ed alcohol. Fancher asserts that his

case m ay be likened to Richbourg , in which the s uprem e court reversed a DUI conviction due

to insuf f icient e vidence. Richbourg , 744 So. 2d at 357 (¶15). In Richbourg , a n of f icer responded to the scene of an accident and charged the driver with DUI based on the driver’s f ailed HGN test, beer cans in the trunk of the driv e r ’ s v e hicle, and the sm ell of alcohol on the driver. Id

. at 3 55-56 (¶¶9-11). Again, the suprem e court reiterated that the r esults of an HGN test only provide probable cause f or an arrest, not evidence f or a conviction. Id

. at 357 (¶14). H e n c e , the rem aining evidence in Richbourg c entered around t he of f icer sm elling alcohol on the d e f

endant. W i th regard to the sm ell of alcohol, the suprem e court stated: “The odor o f a lcohol [ that the of f icer] detected a

bout R ichbourg’s person, by his own adm ission under cross-exam ination, alone did not give an indication of how m uch . . . Richbourg had had to drink.” Id

. (internal quotation m arks om itted). In sum , testim ony regarding the sm ell of alcohol does not prove that alcohol was consum ed or that a driver was im paired.

5¶12. W e have previously distinguished the suprem e court’s rulin g i n R i c h b ourg w hen other

contributing f

actors are at p lay

. See e.g. Knight v
. City of Aberdeen , 881 So. 2d 926, 928-29 (¶¶12-15) (Miss. Ct. A pp. 2 004); Saucier v
. City of P oplarville , 858 S o. 2d 933, 936 (¶¶15- 16) (Miss. Ct. App. 2003). In S aucier , a driver was pulled over af ter an of f icer witnessed her s peeding and weaving in the road. Saucier , 858 So. 2d a t 9 34 (¶2). The of f icer conducted m

ultiple f ield sobrie t y t ests including the H GN test, a l l of which t he of f icer testif i ed that the driver f

ailed. Id. at 936 (¶¶16-17). The of f icer testif ied t hat the driver exhibited slurred speech, s m elled o f a l c o h o l , and had glazed ey es. Id

. at (¶17). Another of f icer was also present and witnessed the driver sway af t er exiting her vehicle. I

d . at 934 (¶3). Furtherm ore, the driver adm itted t o having been drinking wine earlier i n the night. Id

. ¶13. In Knight , a driver was p u l l e d o v e r a f t e r b e i n g r eported f

or suspicious driving. Knight , 8 81 So. 2d at 927 ( ¶¶4-6). The responding o f f icer a l so w itnessed t he driver run of f

one side of th e r o a d only to weave back across the centerline bef o re the traf

f ic stop was initiated. Id

. at (¶6). W hen questioned about h is consum ption of alcohol, the driver adm itted

to h aving consum ed six beers – one approxim atel y t w e n t y m inutes b ef ore the traf

f ic stop. Id. at (¶8). In addition to s eeing t he def endant driving erratically and sm elling alcohol, the of f icer also witnessed the def e ndant stum

b le bef ore catching him self on his vehicle. Id . at 928 (¶18). Finally , a portable breath-alcohol test ref lected that the def

endant was intoxicated above the legal lim it. Id

. ¶14. Essentially , c ontributing f actors can elevate testim ony regarding t he sm ell of alcohol

to proof suf

f icient to support a DUI conviction. Here, m uch like in Saucier and Knight ,

6Of

f icer Burnell’s testim ony regarding Fancher s peeding and weaving back a nd f orth in the road elevated the suf

f iciency of the evidence a s a whole. This t estim ony distinguishes this

case f rom Richbourg since the r esponding of f icer here provided an ey ewitnes s a c c ount of contributing f

a ctors in a ddition to h is testim ony that he sm e lled a lcohol on Fancher’s person and i n h is vehicle. As such, we f ind that the evidence was suf f icient to c onvict Fancher of DUI, and we af

f irm the circuit court’s judgm ent. ¶15. T H E J U D G M E N T O F T H E M A D I S O N C O U N T Y C I R C U I T C O U R T A F F I R M I N G T H E C O N V I C T I O N O F D RIVING UNDER THE INFLUENCE, F I R S T OFFENSE, AND SENTENCE OF F ORTY-EIGHT HOURS IN THE CUSTODY OF THE M ADISON COUNTY SHERIFF’S DEPART M E N T, WITH THE SENTENCE S U S P E N D E D F O R T W O Y E A R S , T W O Y E A R S O F U N S U P E R V I S E D P R O B A T I O N , AND FINE OF $ 900, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. L E E , C . J . , I R

V I N G A N D G R I F F I S , P . J J . , B A R N E S , C A R

LTON, F AIR, JA M E S AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.

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