IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KM-01649-COA LYNDA DIANNE ROBINETTE A/K/A LYNDAROBINETTE A/K/A LYNDA ROBINETTEMCNAIR APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/20/2014 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: BOTY MCDONALD CITY PROSECUTOR: BOTY MCDONALD NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: AFFIRMED CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND FINE OF $700, AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMENT, W I TH THE SENTENCE SUSPENDED FOR TW O YEARS UNLESS SOONER INVOKED; AND CONVICTION OF RUNNING A STOP SIGN AND FINE OF $50; AND CONVICTION OF FOLLOW ING TOO CLOSELY AND FINE OF $50 DISPOSITION: AFFIRMED: 11/17/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. LEE, C.J., FOR THE COURT: ¶1. In August 2012, Ly nda Robinette pleaded no contest in Ridgeland Municipal Courtto driving under the inf luence, f irst of f ense, running a stop sign, and f ollowing too closely (tailgating)

. T h e mu nicipal court f ound Robinette guilty of all three of f e n ses. R obinette appealed t he m

unicipal court’s d ecision to t he C ounty Court of Madison County

. Af ter a trial de novo, s he was again c onvicted of all three of f enses. Robinette a

ppealed the county court’s decision to the Madison County C ircuit C ourt, which af f irm e d her convictions. R obinette

now appeals and asserts t hat the trial court erred in d eny ing her m otion f or a d irected verdict and i n rendering a verdict of guilty because the evidence was insuf f icient to f ind her guilty bey ond a reasonable doubt. 1 Finding that Robinette is procedurally barred f rom raising these issues, we af

f irm the judgm ent of

the circuit court. FACTS ¶2. On March 24, 2012, Of f icer David Mattox with the Ridgeland Police Departm ent was patrolling Rice Road when he observed a vehicle “traveling a little f aster than i t should have been.” Of

f icer Mattox approa c h e d t h e vehicle f rom behind. The vehicle, driven by Robinette, was traveling at a bout f if ty m iles per hour, and there was approxim ately one car length between her vehicle a n d t h e vehicle in f r ont of her. Of

f icer Mattox testif

ied that Robinette was tapping her brakes a lot, an indication that she was f ollowing too closely

. The vehicles approached a s top sign. The vehicle in f ront of Robinette cam e to a com plete stop, then proceeded through the intersection. Of f icer M attox testif

ied that Robinette y ielded, but did n ot stop. W hen Of

f icer Mattox saw Robinette roll through the intersection without

1 R o b in ette’s n o tice o f ap p eal states sh e w as ap p ealin g h er co n v ictio n s f o r D U I , r u n n i n g a sto p sig n , an d t ailg atin g . H o w ev er, h er b rief o n ly d iscu sses th e D U I a n d t h e tailg atin g co n v ictio n s. 2com ing to a com plete stop, he activated his blue lights and proceeded to pull her over. ¶3. Of f icer Mattox approached Robinette’s vehicle a n d asked Robinette f o r her driver’s license and insurance. Of f icer Mattox testif

ied that he sm elled alcohol com ing f rom inside the vehicle. He testif

ied t hat when he noticed t h a t Robinette’s e y e s were bloodshot and glassy , he asked her how m uch she had to drink that night, to which she replied, “three sips of vodka and a g lass of wine with dinner.” Of f icer Mattox t estif

ied that “her speech was slurred and thick- t ongued.” Initially , Robinette had told Of f i cer M attox that there was no alcohol i nside the vehicle, but in a bag inside the vehicle, Of f icer Mattox f

ound a wine bottle that had been opened with o ne-f ourth of the wine rem aining. S uspecting that Robinette was driving under the inf

luence of alcohol, Of

f icer Mattox called DUI Of f icer S tephen W ebb to the scene. ¶4. Of f icer W ebb ap p r o a c h e d t h e v e h i c l e . H e testif ied that “a strong odor of an intoxicating beverage [ was] com ing f rom inside [ the] vehicle.” H e asked Robinette to get
out of the vehicle. S he com plied. Of f icer W e bb t estif

ied that Robinette’s “breath a nd person reeked of an alcoholic b everage.” He testif ied that h er ey es w ere bloodshot and glassy , and her “ [ s]peech was som ewhat thick-tongue d a n d slurred.” Of

f icer W ebb a sked R obinette how

m uch she had to drink t hat night, to which she replied that she had one glass of wine at the Zippity Doo Dah parade. He of f ered Robinette a p r e l i mi nary b reath t est, t o which she consented, a nd she tested positive f or alcohol

. O f

f i c er W ebb then asked R obinette to perf orm s e v eral sobriety tests. Robinette inf o rm e d him that s he suf

f ered f rom inner-ear problem s, which af

f ected h er balance, so he declined to adm i nister the walk-and-turn test and

3the one-leg-stand test. She subm i tted to the h orizontal-gaze-ny stagm us test, where Of

f icer W e bb observed all six i ndicators of im pairm e nt. He then placed Robinette under arrest f or driving under the inf

luence and transported her to the Ridgeland Police Departm ent. At the Ridgeland Police Departm ent, Of f icer W ebb o bserved R obinette f o r twenty m inutes prior to of f ering the Intoxily

zer 8000 test. Robinette consented, and registered a .12 blood-alcohol

content. ¶5. O n cross-exam i nation, Of f icer W ebb w as questioned regarding t he twe n t y - mi n u t e observation per i o d

. Of

f icer W ebb testif

ied that the twenty -m inute observation period is required by the state c rim e lab to e nsure that the person to b e tested does not ingest any thing by m outh, burp, belch, or regurgitate. I f t he person t o be t ested does burp or belch, the twenty

- m inute observation period m ust start over. Of

f i cer W ebb testif

ied that he never saw Robinette burp, and he never asked her if she burped. W hen a p ortion of the video recording of the twenty -m inute observation period – where Robinette puts her hand to her cheek and dips her head – was play ed, Of f i cer W ebb testif

ied, “I’m not sure if y ou could call -- she said the word ‘m e,’ and then [ she] kind of m otioned t o h e r s e l f

. ” At t his p oint in the trial, Robinette interjected to m ake clear that she was say ing “excuse m e” during that portion of the v ideo. On r edirect, Of f ice r W e b b testif

ied that he was s i tting three f eet away f

rom Robinette, and never heard h er burp, belch, o r r e g u r g i tate, and that h e had perf orm ed hundreds of these observations during h is career. At the end of the State’s case, Robinette

m oved f or a directed verdict. Her m otion was denied. ¶6. Melissa D em

psey , Robinette’s f

riend, testif

ied f o r the def e n s e. She and Robinette had

4m et f

or lunch bef

ore m arching in the Zippity Doo Dah parade together. For three h ours they stood in a parking lot waiting f or the parade to begin. D em psey testif

ied that t hey did not eat

or d rink any thing while t hey waited. Once they f inally started m oving, the parade m oved
very quickly

. Dem

psey testif

ied t hat by the end o f t he parade, they were p ractically running. Af ter the p arade, Dem

p sey and Robinette went to the liquor store and each bought a bottle of wine. Using the c ups that Dem psey ’s husband had c aught in t he parade, t hey each poured them selves som e wine. They put their wine bottles in t heir cars and w ent to an outdoor

concert. They a t e d i n n e r a t a sushi restaurant, then parted way s a little af ter 10 p .m . Dem psey testif

ied that she and R obinette had a plastic c u p of wine e ach, t hat Robinette was of f ered som ething to drink out of a cup during the parade, and that Robinette was not drunk. ¶7. On cross-exam in a t i o n , D e mp s e y w a s a s k e d a b o u t the three sips o f vodka that Robinette had told Of

f icer Mattox s he had consum ed. D e mpsey testif i ed that she had understood Robinette t o have turned the vodka down when it was of f ered to her during the parade, but if she h ad consum ed any vodka at all, i t would have been while they were

m arching in the parade, a nd it would have been a very sm all am ount because at the rate they

were going, there was no tim e to stop and drink any thing. Dem

psey also testif

i ed on crossexam ination that t hey each poured their plastic cup of w ine f rom their own bottle, so how Robinette’s bottle was o nly one-f ourth f ull w hen Of

f icer Mattox f

ound it, she did not know. ¶8. R o b i n e t t e testif

ied at trial. She testif

ied that the day of the parade, she w oke u p a t 4:30 a.m . because she h ad to work. Robinette, a registered nurse, helped deliver six babies bef ore 2 p.m ., which is when s he lef t work to get som ething to eat. She then brought som e

5f

ood hom e to her sons. Robinette testif ied that she m et Dem

p sey at Babalu restaurant about 4:30 p.m ., then waited f

or three hours in a parking lot f or t he p arade to start. She testif ied that she and Dem

psey were surrounded by “a bunch of d ru n k o l d w om en.” R obinette testif i e d t h a t o n e of the wom en was extrem e ly intoxicated and said t o her as they were

m arching, “Oh, y o u’re not having any f un. H ere, take a sip of this,” and h anded R obinette the cup she was holding. To pacif y the wom an, Robinette put the cup t o her lips, and took

a sip. She testif

i e d t h a t it was “m ay

be h alf a t easpoon.” R obinette testif ied s he took a sip at 5 p.m ., and twice during the parade. ¶9. Af ter the parade, Robinette, Dem psey , and D em

psey ’s husband and daughter went to

see a band that was play ing in the Fondren area of Jackson. Robinette and Dem psey went
to a liquor store a nd each bought a bottle of wine. Dem psey ’s husband gave them the plastic
cups h e had caught i n the p arade, a nd they each poured them selves a cup of wine f rom their respective wine bottles. Robinette testif ied that she later m easured the plastic cups and f ound that they held twelve f

luid o unces. They recapped the wine bottles and p ut them in their cars. They ate sushi at a restaurant, then parted way s. Robinette started driving to her b oy f riend’s house. H e was in bed when s he arrived, so she lef t to drive h om e, talking to him on the phone all the while. As she was driving down R i ce Road, she noticed a police c ar get behind her. Robinette testif

i ed that a s she approached a stop sign, she “hesitated,” which was when the police of

f i c er turned on his lights. Robinette pulled over. ¶10. Robinette testif

ied that she suf

f ers f r o m gastroparesis, a m e dical condition that causes belching and regurgitation. She testif ied that she burps on a regular basis, “pretty m uch af ter

6every m eal,” a nd that she was burping the night she was pulled over by Of f icer Mattox. Robinette testif

ied that she did not realize how m uch she was burping until she watched the video of the Intoxily

z er test. R obinette also testif ied that she has Meniere’s disease, which is an inner-ear disorder that causes loss of equilibrium , vom i ting, an d n y s t a g mus. She

te s t i f i e d that she a lso suf

f ers f rom brain seizures, w hich cause loss of equilibrium as well. At the end of direct exam ination, s h e d e n i ed that she was under the inf luence o f alcohol. ¶11. On cross-exam ination, Robinette testif ied that she takes m edication f or her brainstem seizures and loss of equilibrium

. S h e testif ied that she had recently started having drop attacks where she would collapse unexpectedly , so her doctor increased t he dosage of her

m edicine. Regarding Robinette’s ability to keep her balance while she is drinking alcohol, the f ollowing exchange occurred between her and the State: Q. Balance doesn’t com e easy f or y ou? A. It com e s easier once I take my m edication, y es. But, no, I’m not the ty pical person that -- if I didn’t take m y m edication -- no, balance is not easy . And alcohol, if I have not had m y m edication, will def initely m a ke it worse, which is why I do n ot d rink very m

uch because the n ext day

-- I w o r k s i x day s a week. I work Monday through Friday at [ University of Mississippi Medical Center] and Saturday s I work at

-- at River Oaks [ Hospital], and so, no. Q. The best result would be just to not drink at all, wouldn’t it? A. Right, which is basically what I do. Q. But if

y ou have som e alcohol -- A. I can have som e, y eah, uh-huh. Q. If y o u have som e alcohol, it’s going to contribute m ore and m ake m ore com plicated y our ability

to keep y our balance.

7A. Yes.

Q. And that balance could also im pact y our ability

to drive? A. It has never im

pacted m y ability

. The only tim e m y ability to d rive was im pacted was bef

o re they knew I had b r a i n s tem s eizures and I w ould black out on the road. And they diagnosed that i n 2 0 0 6

. And since I started taking the seizure m e d icine i n 2006[ ,] I’ve not blacked out any . And that did get t o where I w ould not drive on the inters t a t e b e f o r e I was diagnosed. And af

ter I was diagnosed and they put the shunt in m y ear, I’m able to drive perf

ectly

. ¶12. Doctor Steven T

. Hay ne also testif

ied f or the def ense. Dr. Hay

ne was accepted a s an expert i n the f

ield of c linical and f

orensic pathology and was asked to review the toxicology report, perf

orm an extrapolation, and explain the dif f erence between the t wo results if there

was one. ¶13. Dr. Hay

ne testif ied t hat he m et with Robinette f or about t h r e e hours and reviewed

som e of her m edical r ecords. He testif ied that her m edical records showed that she suf f ers f rom vertigo, Meniere’s disease, a seizure disorder, an d g a stroparesis. He testif ied that

som eone with M e niere’s disease “should have ny s tagm us all the tim e , ” a n d t h at it is exacerbated by

stress and other variables. ¶14. D r . H a y

n e did a retrograde extrapolation. Based o n the i nf or ma t i o n R o b i n e t t e provided, which included the amo u n t of wine ingested (12 ounces), the tim e ingested, her weight, a nd her m e dical conditions, Dr. Hay ne c oncluded that her blood-alcohol content was 0.03. T o explain t h e d i f f erence between the Intoxily z er results and his r etrograde extrapolation, he explained that with g astroparesis, f ood and f luid rem ain in the stom ach f or

a c o nsiderable am ount o f tim e. H e testif ied that it causes ref

lux, regurgitation, and vom iting.

8Dr. Hay

ne watched the video of the Intoxily zer t est a n d testif

ied that he saw Robinette burp

at least once and saw w hat he thought was evidence of burping at other tim e s during the twenty

- m inute observation period. He testif ied that h e a l s o saw Robinette cough between the two sam

ples that were taken. Dr. Hay ne t estif ied that because the wine Robinette had

consum ed was sitting in her s tom ach, and because she w as burping, and a lso coughed at one point, the alcohol, in its gaseous f orm , “m i xed with pulm onary air [ to produce] an erroneous, high level of

ethy l alcohol in the pulm onary sam ple that was tested.” ¶15. Dr. Hay

ne a lso t o o k i s s u e w ith t he dif f erence between the two sam p les that were taken. At 11:51 p .m ., R obinette registered a .133 blood-alcohol content, and at 11:53 p.m ., she registered .125. Dr. Hay ne testif ied that is a 6.4 percent dif f erenc e , w h i c h is unusual. Usually , t he dif

f erence is one or two percent. H e testif ied that phy s iologically , one could not have that high o f a variance, and that the variance was caused by the m i x t u r e o f t h e two gases, the pulm onary

air with the gastric gas. ¶16. Robinette was charged with vi o l a t i n g M i s s i s sippi Code Annotated section 63-11- 30(1)(a) and (b) (Rev. 2013). Robinette was ultim ately convicted under s e c t i o n 63-11- 30(1)(a). As stated previously , she was also convicted of r unning a stop sign and tailgating. S TANDARD OF REVIEW ¶17. Again, this Court is f aced with an appeal in which t he City of Ridgeland h as f ailed to f ile an appellee’s brief

. 2 “An appellee’s f

ailure t o f

i l e a brief on appeal i s tantam ount to

2 S ee C la ck v
. C ity o

f R id g e l a n d , 1 3 9 S o . 3 d 7 7 8 , 7 7 8 (¶1 ) (M iss. C t. A p p . 2 0 1 4 ); C a rlso n v. C ity o

f R id g ela n d , 1 3 1 S o . 3 d 1 2 2 0 , 1 2 2 2 (¶7 ) (M iss. C t. A p p . 2 0 1 3 ); D ra b icki v. C ity o f R id g ela n d , 1 3 0 S o . 3 d 1 1 3 , 1 1 8 (¶1 9 ) (M iss. C t

. A p p . 2 0 1 3 ) ; L o b o v
. C ity o f R i d g ela n d , 1 3 5 S o . 3 d 1 4 8 , 1 5 2 (¶1 2 ) (M iss. C t. A p p . 2 0 1 3 ); see a lso Wo o d s v. S ta te , 2 0 1 4

- 9conf

ession of the e rrors alleged by the appellant. H owever, autom atic reversal is not required if this Court can say

with conf

idence that the case s hould be a f f irm ed.” Chatman v. State , 761 So. 2d 851, 854 (¶9) (Miss. 2000) (internal citations om itted). DISCUSSION ¶18. Robinette argues t hat the trial court erred in d eny ing her m otion f or a d irected verdict and in rendering a v erdict of guilty where t he evidence w a s ins u f f i cient to prove bey ond a reasonable doubt that s h e w a s under the inf luence of intoxicating liquor. To preserve a challenge to the suf

f iciency of the e vidence, t he def endant m ust f irst m ake a m otion f

or a directed v erdict at the close o f the State’s case-in-chief

. Page v. State , 990 So. 2 d 760, 762 (¶9) (Miss. 2008) ( c i t i n g Wr i g h t v. State , 540 So. 2d 1, 3 (Miss. 1989)). If that m otion is denied, “and the def

endant introduces evidence on [ her] own b ehalf , [ she] m ust [ then] renew [ her] m o tion f

or [ a ]directed verdict at the close of a l l the evidence.” Id

. “ Failure to do so constitutes a waiver of any c hallenge on appeal to the suf f iciency of the evidence.” Moore v. State , 131 So. 3d 1228, 1231 (¶5) (Miss. Ct. App. 2013) (citations om itted). ¶19. At the close of the S tate’s case-in-chief , Robinette m oved f

or a directed verdict, which

was denied. Robinette then introduced evidence on her own b ehalf

. At the close of all the evidence, Robinette did not r enew her m otion f o r a directed v erdict. Theref ore, Robinette’s challenge to the suf

f iciency of the evidence is procedurally barred. ¶20. N o t w i t hstanding the procedural bar, we can s a y with c onf idence th a t t h e c i r c u i t

K M

- 0 1 8 0 7 -C O A , 2 0 1 5 W L 5 6 8 7 8 1 8 , at * 1 n .2 (M iss. C t

. A p p . S ep t. 2 9 , 2 0 1 5 ); C a m ero n v. S ta te , 2 0 1 4 -K M -0 1 8 0 2 -C O A , 2 0 1 5 WL 5 6 8 7 7 9 1 at * 1 n . 2 (M iss. C t. A p p . S ep t. 2 9 , 2 0 1 5 ). 1 0court’s judgm ent should be af f irm ed. In reviewing the suf f iciency of t he evidence, “the critical inquiry is whether t he e vidence shows bey ond a reasonable doubt that [ t he] accused

com m itted the act charged, and that [ s]he did s o u nder s uch circum stances that every elem ent of the o f f ense e xisted[ .]” Bush v. S tate , 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation and internal quotation m a rks om itted). The relevant question is “whether, af ter viewing the evidence in the l ight m ost f avorable to the prosecution, any rational trier of f act could have f ound the essential elem ents of the crim e bey ond a reasonable doubt.” I d . If the f acts and inf erences “point in f

avor of the def

endant on any elem ent of the of f e n s e w i t h s u f

f icient f o r c e that reasonable [

jurors] could not have f

ound bey ond a reasonable doubt that t h e def endant was guilty , ” we will reverse and render. Id. H owever, if the e vidence is of such
q u a l i ty and weight that, “having in m ind the bey ond a reasonable doubt burden o f p r o o f standard, reasonable f

air-m inded [

jurors] in the e x ercise of im partial judgm ent m ight reach dif f erent conclusions o n every elem ent of the of f ense,” we will af

f i rm the conviction. Id

. ¶21. Robinette was convicted under section 63-11-30(1)(a), w hich m akes it “unlawf ul f or any person t o drive or otherwise operate a vehicle within this s t a t e who

. . . is under the inf luence o f i n t o x i c ating liquor[ .]” Section 63-11-30(1)(a) is com m only ref erred to as “com m on-law DUI.” Gilpatri c k v
. S t a te , 9 91 So. 2d 1 30, 133 (¶18) (Miss. 2008). “Com m on[ -]law DUI is proven when a d ef endant’s b l o o d [- ] a lcohol r esults are u navailable[ ,]

. . . but there is suf

f icient evidence that the def endant operated a vehicle under circum stances indicating his a

bility to [ operate] the vehicle was im paired by the consum

ption o f alcohol.” Id. (citation om itted).

1 1¶22. Af

ter viewing the e vidence in the light m ost f a v orable to the prosecution, we f ind that the evidence was s uf

f icient to support Robinette’s conviction. Of f icer Mattox testif

ied that Robinette was speeding, that she was tapping her brakes b ecause she was too close to the vehicle in f

ront o f h er, a nd that she f

ailed to stop com

pletely at a stop sign. He testif ied that he sm elled alcohol com i ng f rom i nside t h e vehicle. There was testim ony that Robinette’s
ey es were bloodshot and glassy and that her speech was slurred and thick-tongued. R obinette

a dm itted t hat she had consum ed alcohol that evening, and a wine bottle one-f o urt h f u l l o f wine was f

ound inside the vehicle. Of f icer W ebb a lso sm elled the alcohol com ing f rom inside the vehicle, and testif i ed t hat Robinette’s breath and person sm elled like alcohol. He adm inistered a prelim i nary breath test, which tested positive f or alcohol. ¶23. W h ile Robinette’s m edical conditions m ight explain w hy Of f icer W ebb observed all six indicators of im

pairm ent when he adm inistered the horizontal-gaze-ny s t agm us test and why she w a s s way ing in t he video f o otage, Robinette a d m itted that the consum ption of alcohol a ggravates her sy

m ptom s, including the loss of equilibrium

. Theref ore, we f ind that the t rial court could f

ind t hat Robinette o perated her vehicle under circum stances indicating that her ability to operate h e r vehicle was im paired by the consum

ption of alcohol. This issue is without m erit. ¶24. Robinette also argues that t h e e v i d e nce was i nsuf f icient to support a conviction f or f ollowing too closely

. She argues that the State f ailed to prove t hat Robinette operated her vehicle im

prudently

. Mississippi Code Annotated section 63-3-619 (Rev. 2013) provides, “The d river of a m otor vehicle shall no t f ollow a nother vehicle m ore closely than is

1 2reasonable and prudent, having d ue regard f

or the speed of such vehicles and the traf f ic upon and the condition of

the highway .” ¶25. The evidence was suf f i cient to sustain R obinette’s conviction f or t ailgating. Of

f icer
M a t t ox testif

ied that Robinette was t raveling at about f if ty m iles per hour, and there was approxim a tely one c ar length between her and the car in f ront o f h er. He testif

ied t hat he tells people that as a general rule there should be one car l ength f o r e v e r y ten m iles per hour. Of f icer M attox testif

ied that Robinette was tapping her b rakes, which was another indication that she was f

ollowing too closely

. A n d l a stly , R obinette was operating her vehicle under the inf luence of intoxicating liquor. This issue is without m erit. ¶26. T H E J U D G M E N T OF THE MADISON COUNTY CIRC U I T C O U R T O F CONVICTION OF DRIVING U NDER T HE INFLUENCE, FIRST OFFENSE, AND FINE OF $700, AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMEN T , WITH THE SENTENCE S USPENDED FOR TWO Y EARS UNLESS SOONER INVOKED; AND CONVICTION OF RUNNING A STOP SIGN A N D F I NE OF $50; AND CONVICTION O F FOLLOWING TOO CLOSELY AND FINE OF $50 IS AFFIRMED. A LL COSTS OF THIS APPEAL ARE ASSESS E D TO THE APPELLANT. IRVING AND GRIF F I S , P . J J . , B A R N E S , C A R L TON, MAX WELL, FAIR AND JAMES, JJ., CONCUR. WILSON, J ., CONCURS IN PART AND IN THE RESULT WIT H O U T SEPARATE WRITTEN O PINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTING: ¶27. I respectf

ully d issent f

rom the m ajority ’s opinion af f irm ing Robinette’s conviction of driving under the inf

luence. First, it should be noted that the State of Mississippi f ailed to f ile an appellee’s brief in this appeal. “Failure of an appellee to f ile a brief is tantam ount to conf ession o f error and w i l l b e a c cepted as such u nless the r eviewing court can say with

1 3conf

idence, af t er considering the record a nd brief of appealing p arty , t hat there w as no error.” Varvaris v. Perreault , 8 1 3 S o. 2d 750, 7 52 (¶5 ) ( M i ss. C t. App. 2001) (citing Dethlefs v. Beau Maison Dev. C

orp. , 458 So. 2d 714, 717 (Miss. 1984)). “In o rder to m erit reversal, the

a p p e l l a n t ’s argum ent should at least create enough doubt in the judiciousness of the trial court’s judgm ent t hat this Court cannot say with conf idence that t he case should be af f irm ed.” T

aylor v. Kennedy , 914 So. 2d 1260, 1262 (¶3) (Miss. Ct. App. 2005) (citation

om itted). ¶28. Robinette was convicted of “operating a vehicle within the state under the inf luence

o f an intoxicating liquor,” also known as “com m o n-law DUI.” As the m ajority correc t l y points o u t , i n order f

or Robinette to be guilty of s u ch, the State w as required to produce suf f i cient evidence showing that on the evening in q uestion, Robinette’s “ability to [ operate] the vehicle was im

p aired b y [ h er] consum

ption of alcohol.” Gilpatrick , 991 So. 2d at 133 (¶18). I do not believe this burden was m et. ¶29. Of f icer Mattox t estif

ied t hat when he approached Robinette’s vehicle, the sm ell of an alcoholic beverage was em anating f rom the vehicle, but it i s undisputed that Robinette had

consum ed a glass of wine, a nd that there was an o pen b ottle of wine in t h e car, either of which could have a ccounted f or the sm ell. Then, Of

f icer W ebb f

i rst testif ied that Robinette’s “speech was som ewhat thick-tongued and slurred,” but when asked t he degree to which her speech was im

pa i r e d , he adm itted that “she wasn’t s l oppy slurred, but there was a good

– every n o w a n d t h e n y ou would kind of catch it.” U pon reviewing the v ideo of the conversations that took place between Robinette and the pol i c e o f f icers, I observed no

1 4slurring of

her speech. ¶30. Final l y , t h r o u g h o u t t h e r e c o r d , m uch was m a d e of the conditions f rom which Robinette suf

f ers, and how her s y

mp t o ms m ight have i m

p acted the o utcom e of a sobriety

t e s t

. S h e suf

f ers f r om vertigo and inner-ear p roblem s that af f ect h er balance, s o Of

f icer W e bb did not a dm inister the walk-and-turn test or the one-leg stand test. He adm inistered the h orizontal-gaze-ny s tagm u s t e st in which he reportedly observed all six indicators of im p airm ent. However, D r. Hay ne testif ied that som eone suf

f ering f rom Meniere’s disease, like Robinette, would have ny stagm us all of t he tim e. For these reasons, I cannot say with f ull conf idence that R obinette’s conviction should be af f irm e d. A ccordingly , d

ue to the appellee’s f

a ilure to f ile a brief , I would reverse and render the circuit court’s judgm ent.

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