#### Mitchell Vann GLAZE v. CITY OF ALABASTER

CR-15-1385

Court of Criminal Appeals of Alabama.

December 16, 2016

Rehearing Denied February 3, 2017

Certiorari Denied March 10, 2017

Alabama Supreme Court 1160378

Derek Brandon Simms, Birmingham, for appellant.

Jeffrey W. Brumlow, Trussville, for ap-pellee.

WINDOM, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

Burke and Joiner, JJ., concur, Welch, J., dissents, with opinion. Kellum, J., not sitting.

WELCH, Judge,

dissenting.

The majority affirms Mitchell Vann Glaze’s conviction and sentence for driving under the influence of a substance other than alcohol or a controlled substance, a violation of § 32-5A-191(a)(5), Ala. Code 1975. I disagree with the majority’s holding and with the faulty legal analysis it sets out as support for the holding.

The majority, in its unpublished memorandum, summarizes the evidence as follows:

> “At approximately 10:00 p.m. on July 29, 2015, Officer Kareem McCann observed Glaze driving erratically on the interstate. As a result, Officer McCann initiated a traffic stop. During the stop, Glaze had slurred speech, constricted pupils, trouble following directions, and delayed responses to Officer McCann’s orders. Additionally, when asked if he had taken any medication, Glaze initially responded that he had not taken anything, but then later admitted that he had taken Suboxone, a controlled substance, that morning.”

Glaze v. State (No. CR-15-1385, December 16, 2016), — So.3d—, (Ala. Crim. App. 2016)(table).

The majority correctly sets out the relevant legal principles. After quoting from this Court’s analysis in Sturgeon v. City of Vestavia Hills, 599 So.2d 92 (Ala. Crim. App. 1992), regarding the elements of § 32-5A-191(a)(5), Ala. Code 1975, that must be pleaded and proved to sustain a conviction, the majority states: “Thus, in order 'to sustain a conviction under § 32-5A~191(a)(5), Ala. Code 1975, the State must prove that the defendant was under *256the influence of a substance other than alcohol, a controlled substance, or a combination thei’eof.”

Then, failing to follow the legal principles it set out, the majority states, briefly and erroneously, that,

> “[bjecause Officer McCann initiated the traffic stop at approximately 10:00 p.m., it is reasonable to infer that he was no longer under the influence of the Subox-one he took early that morning. It is also reasonable to infer that if Glaze was not under the influence of Suboxone or alcohol, then some other substance besides alcohol or a controlled substance accounted for his intoxication.”

Neither inference'is supported by fact.

“Ah inference is merely a permissible deduction from the proven facts which the jury may accept or reject or give such probative value to as it wishes.” Browning v. State, 429 So.2d 653, 654 (Ala. Crim. App. 1982). “A reasonable inference is an inference of a fact which follows as a natural consequence from known collateral effects.” Andrews v. State, 473 So.2d 1211, 1216 (Ala. Crim. App. 1985). “‘An inference can be drawn only from facts, and mere possibilities will not sustain a legitimate inference.’ ” Greer v. State, 563 So.2d 39, 43 (Ala. Crim. App. 1990)(quoting Rungan v. State, 25 Ala.App. 287, 288, 145 So. 171, 172 (1932)). “ ‘ “Evidence ... which affords nothing more than meré speculation, conjecture, or guess is insufficient to warrant the submission of a case to the jury.” Sprayberry v. First Nat’l Bank, 465 So.2d 1111, 1114 (Ala. 1984).’ Finley v. Patterson, 705 So.2d 826, 830 (Ala. 1997).” Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1074 (Ala. 2006).

The majority cannot make a reasonable inference regarding Glaze’s intoxication here. It can guess, it can surmise, it can speculate, it can suppose, it can conjecture; what it cannot do is draw a reasonable inference that Glaze was not under the influence of Suboxone and that he was, instead, under the influence only of-some noncontrolled substance. The majority’s-inferences are based solely on the very things that do not support a reasonable inference — conjecture, guesswork, speculation,, and surmise. A reasonable inference is one that is based on underlying facts, and there are no underlying facts upon which the majority’s inferences were based. Therefore, the inferences were unreasonable and cannot support the trial court’s denial of Glaze’s motion for a judgment of acquittal.

Officer Kareem McCann, who initiated the traffic stop and who was the only witness at Glaze’s trial, testified about his observations ’of Glaze and Glaze’s performance on field-sobriety tests. McCann also testified that, based on his contact with Glaze, he arrested Glaze for driving while under the influence of “any substance” other than a controlled substance or alcohol. Glaze made a motion for a judgment of acquittal that the trial court denied, then he recalled McCann to the stand. Under cross-examination by the State, McCann testified that he was taught at the police academy that constricted pupils were small and sensitive to light. The State asked, “Does it indicate that [the person] may be under the influence of some substance even if you don’t know what that substance is?” (R. 36.) McCann answered, “That’s correct.” (R. 36.)

McCann then testified, under questioning by Glaze, as follows:

> “Q [Defense counsel:] Tell me what your training from the [police] academy tells you about pupils.

> “A [McCann:] That when they’re constricted as such, that they are:normally *257under the influence of some type of substance. It didn’t specify what substance.

> “Q You’re not telling the Court, that based on looking at someone’s pupils you could identify whether someone was under the influence of a cpntrolled -substance or a substance that is not a.controlled substance? ..

> “A No sir. But I’m stating that whatever substance that he had taken at the time was not allowing him to safely operate the vehicle.

> “Q But you can’t say whether it was a controlled substance or some other substance, right?

> “A No sir.”

(R. 37.)

The record reflects a complete absence of any evidence underlying that Glaze was not still under the influence of Suboxone, or that he was under the influence of a substance other than alcohol or any controlled substance while he • was driving. There was no evidence as-to the strength of the-dose of Suboxone Glaze said he took earlier in the day, there was ho evidence as to the amount of time-that had passed since Glaze took the Suboxone, there was no evidence as to the half-life of Suboxone and, as a result, there was no evidence as to whether the drug was still in Glaze’s system and whether it would have affected Glaze’s behavior in the way MeCahn observed.-The majority’s bald assertion that Glaze was no longer under the influence of the Suboxone he took earlier that day is wholly unsupported by any evidence and, instead, amounts to rank speculation.

The majority’s inference that Glaze was under the influence of “some substance” other than Suboxone is equally unreasonable. Glaze’s erratic driving and inability to satisfactorily complete field-sobriety tests could have been caused by reasons other than being under the influence of “some substance.” Although McCann testified that he believed Glaze was under the influence of a substance, he forthrightly testified that he did not know whether that substance was a controlled substance or some other ' substance. That testimony, alone, supported Glaze’s motion for a judgment of acquittal. No reasonable person could have come to the conclusion, based on the facts presented, that Glaze was under the influence solely of a substance other than alcohol or. Suboxone or some other controlled substance.

• The State is not required to present results from a blood test in all driving-under-the-influenc’e cases but,- in this case, the State’s failure to present any test results showing that Glaze was under the influence of a substance other than Subox-one, alcohol, or another controlled substance led to its failure to present a prima facie case of a violation of § 32-5A-191(a)(5), Ala. Code 1975. The majority’s inferences aré based bn speculation and cannot buttress the State’s insufficient case. A defendant should not be convicted on mere speculation; and the trial court erred when it denied Glaze’s motion for a judgment of' acquittal. The majority has failed to right that wrong.

For the foregoing reasons, I dissent.