IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KA-00499-COA JEREMY A. SNYDER A/K/A JEREMY ALAN SNYDER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/28/2014 TRIAL JUDGE: HON. ROBERT W ALTER BAILEY COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES PHILLIP BROADHEAD ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER JOHN R. HENRY JR. DISTRICT ATTORNEY: BILBO MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF FELONY DUI AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH TW O YEARS TO SERVE, THREE YEARSSUSPENDED, AND FIVE YEARS OF POSTRELEASE SUPERVISION; AND TO PAY A $2,000 FINE AND $500 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND DISPOSITION: AFFIRMED - 09/08/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING AND GRIFFIS, P.JJ., AND MAX W ELL, J. MAX WELL, J., FOR THE COURT: ¶1. Jerem y A. Sny der appeals his f elony DUI conviction. Dri v i n g u n der the inf luencebecom es a f elony when the driver has twice previously been convicted of DUI w ithin the last f ive y ears. Bef

ore trial, Sny der stipulated he h ad two prior DUI convictions. And the trial judge properly

instructed the j ury the stipulation only proved his two prior convictions—it could not be considered proof he com m itted a third DUI. ¶2. Sny der argues the t rial judge should have gone f urther. H e i n s i s t s it was wrong to allow the State to m ake any reference to his two prior D UI arrests, which t he State did during its case-in-chief and closing argum ent. But Sny der’s two prior DUIs were required elements of the crime

. S o t h e trial judge com m itted no reversible e rror by allowing the State to ref erence them

. W e f

i nd this particularly true since the State’s reason f or m entioning the two prior DUIs was not to prove Sny der also c o m m itted a third D UI. I nstead, the State brought
up Sny d er’s two past experiences with DUI tests to s how his motive and intent f or ref using these tests the third tim e around. ¶3. Sny der also argues he was entitled to a s poliation-of

- the-evidence instruction. But this instruction is only warranted when potentially e xculpatory evidence w a s d e s t r o y e d in bad f aith. And Sny der did not show the dash-cam vi d e o of his traf f ic stop was erased in bad f aith. Thus, we f

ind the trial judge did not err by ref using the instruction. ¶4. For these reasons, we af f irm Sny der’s conviction.
B ackground Facts and Procedural History ¶5. In the early m orning of October 6, 2012, S ny der was pulled over f o r speeding. W hen Meridian Police O f

f icer W illiam G o rdon approached Sny der f or questioning, he sm elled alcohol in Sny der’s t ruck. Sny der’s speech w as s l uggish, and he was s l o w to respond to

2questions. A ssisting with t he s top, Of f i cer David C reel noticed Sny der’s girlf riend was drunk. Creel also sm elled alcohol and m arijuana in t he t ruck. S ny der told the of f icers he had been drin k i n g e a rlier that e vening. DUI Enf orcem ent O f

f icer Mike Hem r ick was called to the scene. W hile questioning Sny der outside the vehicl e , H em rick saw S ny der visibly
sway ing while try ing to stand. ¶6. Sny der ref

u sed all f i eld sobriety and breathaly zer tests. He w as arrested and taken to the Meridian police station. There he ref used to blow into the Intoxily zer 8000

. S n y d er adm itted t o H em rick he had been arrested f or DUI bef

o re. He claim ed his attorney advised him to ref

use all breathaly

zer tests. At the police station, Hem rick observed Sny der’s dif f iculty in holding his head up and keeping his balance. Because this was S ny der’s third DUI, he was charged with f elony DUI. See Miss. Code Ann. § 6 3-11-30(2)(c) (Supp. 2014) (classif y ing the third conviction f o r driving under the inf

luence w ithin a f

ive-y ear period as a f elony ). ¶7. Bef

ore trial, Sy

nder f iled m otions in lim ine aim ed to k eep the State f r om m entioning his two p rior D U I c o n v i c tions o r the m arijuana sm ell. The judge denied the m otions,

em phasizing the r elevance of the prior convictions to the S tate’s case and that of f i cers m ay generally testif y about what they

observe during an arrest. ¶8. Sny der stipulated to his DUI convictions, ho p i n g t o lessen their im pact on the jury

. The stipulation was m ade in a jury instruction to be read to the jury at the end of

trial. But during trial, the State brought up Sny d er’s earlier DUIs, once during its c ase and again during closing argum ents. W hen O f f icer Hem r ick was testif

y ing, he was asked why som eone who

3had blown into an I ntoxillizer twice and was legally intoxicated both tim es would now ref use
to blow a third tim e—was i t because he knew he was over the lim it again? And during closing, the State argued t his was not S ny der’s “f irst rodeo.” Of

f i c e r C r e e l a lso testif

ied about sm elling m arijuana in the truck. ¶9. The stop had been recorded by Of f icer Gordon’s d ash-cam

. But t he m em ory card was al m o st f ull and another stop was later recorded over Sny der’s. So there was n o p reserved video of the stop and arrest. S ny der insisted the f ootage was exculpatory and w o u l d have shown his conduct dif

f ered f r om the of

f icers’ descriptions. H e proposed a spoliation-of-theevidence instruction, which the trial judge ref u sed. ¶10. The jury was given a lim iting i nstruction that it c o uld only use e v idence of the prior
DUIs to establish the two-priors elem ent of the crim e. But it could n ot consider these prior convictions “as evidence that [ Sny der] com m itted the DUI with which he is currently charged.” The jury f

ound h i m g u i l t y o f f

elony DUI. Af

t er an unsuccessf

ul m otion f

or a judgm ent notwithstanding the verdict, Sny der tim e l y appealed. 1
Discussion I. Evidence of the Tw o Prior DUIs ¶11. Sny der f

irst argues the trial judge err e d in not granting h is m otion in lim ine. He insists i t was reversible error to not stop the State f rom m entioning Sny der’s two prior DUIs during Of f icer Hem rick’s testim ony .

1 O n ap p e al, S n y d er is rep r esen ted b y t h e S tate P u b lic D ef en d er, In d ig en t A p p e als D i v isio n , w h ich p artn ered w ith th e crim i n al-ap p eals c lin i c at th e U n i v ersity o f M ississip p i S ch o o l o f L aw . 4¶12. Sny der claim s the State’s questions violated the procedural saf eguards established in Rigby v. State , 826 So. 2 d 6 94 ( Miss. 2002). I n Rigby , the d ef endant was a l so f

acing a thirdof f ense f elony DUI charge. W hile he w as willing to concede his two prior DUI convictions, he did not want t he jury to know about them

. He f e ared the j ury would a s sum e he had acted in conf orm ity with his p rior drunk-driv i n g h i s t o r y . Id. at 6 99 (¶6). So he m oved f or a bif urcated trial. He proposed, in the f irst part, the j ury would consider if he was guilty of the present D UI charge. And only af ter f inding him guilty would the jury c onsider if he had two prior DUIs within f

ive y ears, m aking him guilty of a f elony

. Id

. ¶13. The trial court denied b if urcation. And the Mississippi Suprem e Court a greed. The

s u p r e me court held the two prior DUIs were elements of the crime that m ust b e p r o v e n bey ond a reasonable doubt bef ore the jury

. Id. at 700 (¶9). Despite t he seem ing b enef its of bif urcation, “such a procedure w ould produce s everal problem s”—nam ely , “the denial o f a def enda n t ’ s S i x th Am endm ent right to trial by jury .” Id. a t 701 (¶11). Still, the suprem e
court f ound “certain procedural saf eguards are warranted if a def endant o f f ers to stipulate

to p revious DUI convictions.” Id. at 702 (¶14). If a def endant of f ers a stipulation, “[ t]he trial court should accept such stipulations, and they should be s ubm itted t o the ju ry with a proper lim iting instruction.” Id. ¶14. Here, Rigby ’s procedural saf eguards were f

ollowed. The trial co u

r t a c c e p t e d S ny der’s stipulation to two p r ior DUIs within f ive y ears. And the judge g a v e a proper lim iting instruction. The j ury was instructed to only c o n sider Sny der’s prior DUIs as evidence the State m et the two-priors elem ent o f the crim e, not as evidence Sny der c o m m itted the m ost

5recent DUI.

¶15. It is true the State d id r ef e r e n ce Sny der’s t wo prior DUIs d uring its questioning of Of f icer H em rick. But its purpose was not to prove Sny d er had a propensity t o drive while intoxicated—a v iolation of Rule 4 04(b). S ee M.R.E. 4 04(b) (“Evidence of other crim es . . . is no t a d mi s s i b l e to p rove the character o f a p erson in order to show that he acted in conf orm i ty therewith.”). R ather, the State m entioned Sny der’s prior experience with f ield sobriety and breathaly

z er tests to prove Sny d er knew he was intoxicated and w o uld fail these

tests , which is why he ref used them

. S

ee id. (“Evidence of other crim es . . . m ay , however, be adm issible f

or other purposes such as proof of m otive, opportunity , inte n t , p r e paration, plan, knowledge, identity , or absence of m istake or a ccident.”). Because the evidence was adm itted t o show knowledge and i ntent—som e thing Rule 404(b) clearly p erm i ts—there was

no Rigby violation. ¶16. S n y d e r , h owever, argues Rigby prohibits m entioning his prior c onvictions f or any purpose other than to prove the two-prior s e l e me n t o f f elony DUI. As he s e es it, even the expressly perm itted excepti o n s t o R ule 404(b) are of f lim its. S o in Sny der’s view, Rigby elim inates Rule 404(b)’s exception that bad-acts evidence c an be used “f or other purposes such as proof o f m otive, opport u n i t y , i ntent, preparation, p lan, knowledge, identity , or absence of

m istake or accident.” See M.R.E. 404(b). ¶17. W e disagree a nd f ind he is stretching Rigby too f ar. The procedural s a f

e g u a r d s established i n R igby

—which were f

ollowed here—were designed to prom o te Rule 404(b)’s prohibition aga i n s t p r i o r crim es being used to prove the present crim e. Nowhere in Rigby

6did the s upre me court hold that R ule 404(b)’s exceptions can never apply in f elony DUI

cases. ¶18. W e f

ind ev i d e n c e that Sny der ref used to subm i t to a chem ical test is relevant and adm issible. By

statute, “If

a person under arrest ref uses to subm it to a chem ical test under the provisions of t his chapter, evidence of ref usal s hall be adm i ssible i n any crim inal action under this chapter.” Miss. Code Ann. § 63-11-41 (Rev. 2013). In Knight v. State , 14 So. 3d 76, 80 (¶12) (Miss. Ct. App. 2009), this c ourt f ound evidence that a DUI def e n dant ref used

to blow was properly a dm itted f or t w o reasons. First, because the statute allows it. And second, because the def

endant had told the o f

f icer his r eason f

o r not blowing was he believed he would f

ail t he test. In other words, t he ju r y m ay consider why som e o ne would ref use a breathaly zer test. ¶19. Here, Of

f icer H em rick testif

ied Sny der had told him he (Sny der) was not t aking any tests, on advice of his DUI a ttorney

. Of f icer Hem rick was then asked why som e one who had blown twice bef

ore and f ailed would ref

use a t hird tim e—other than he k new he would f

ail again. Because the State’s questions were craf ted to get to the reason why Sny der ref used

to take the f

ield sobriety and breathaly zer test, which is relevant and a dm issible u nder section 63-11-41 and Rule 404(b), we f ind no reversible error in allowing them

. II. State’s Closing Argum e nt ¶20. I n a related argum ent, Sny der takes issue w i th the State’s closing argum ent. H e argues the m ention o f his past DUI experiences was tantam ount t o prosecutorial m isconduct. ¶21. “Attorney s are a llowed a wide l atitude in arg u i n g their cases to t he jury

. However,

7prosecutors are not perm itted t o u s e tactics which are inf lam m atory , highly p rejudicial, or reasonably calculated to unduly inf luence the j ury .” Sheppard v. State , 777 So. 2d 659, 661 (¶7) (Miss. 2000) (citing Hiter v. State , 660 So. 2 d 961, 966 (Miss. 1995)). The standard of review f or “lawy er m isconduct during opening statem ents or c losing argum e n ts is whether the natural and probable e f f ect of t he im

proper argum ent is to create unjust prejudice against the accused so as to result in a decision inf luenced by t he prejudice so created.” S laughter

v. S tate , 815 So. 2d 1122, 1130 (¶45) (Miss. 2002) (citing Sheppard , 777 So. 2d a t 6 60 (¶7)). ¶22. Sny der argues the State’s “not his f irst rodeo” com m ent unjustly p rejudiced the jury by encouraging it to f

i nd Sny der guilty based on his past D U I s . Sny d er’s counsel did not object to the State’s com m ents at trial. But he c ites cases f inding no procedural bar where the prosecution’s “argum ent was so ‘inf lam m atory ’ that the trial judge s hould have objected

on his own m o tion” and the com m ent was n ot invited b y the def e n se. Long v. State , 52 So. 3d 1188, 1 193 (¶16) ( Miss. 2011). If a def e ndant can m eet this threshold test, t hen the court should conduct the two-prong Spicer test. Under Spicer , we ask if “the rem arks were im p roper.” And i f so, we ask if “the rem arks prejudicially af f e c t e d the accused’s rights.” Long , 52 So. 3d a t 1193 (¶17) ( quoting S p icer v. State , 921 So. 2d 292, 318 (¶55) (Miss. 2006), abrogated o n o ther grounds by O’Connor v
. State , 1 20 So. 3d 3 90, 400-01 (¶¶28-19) (Miss. 2013)). ¶23. W e f

i nd the phrase “ not his f

irst rodeo” f

alls within the w ide latitude given attorney s during argum e nt. It was c ertainly not “ so i nf lam m atory ” as to require a s ua sponte objection by the judge. I ndeed, the very reason Sny der was on trial f or f elony DUI was that this was

8not “his f

irst rodeo.” That Sny d e r had already t wice been convicted of DUI within f ive y ears

was an elem ent of the crim e o f f elony DUI—an el e me nt the State had to p rove bey ond a reasonable doubt. See Rigby , 826 So. 2d at 701 (¶12). So the State’s r ef erence f ails to even

m eet the threshold test. ¶24. But even h ad Sny der passed this thr e s h o l d , t he rem arks were not im proper under Spicer

. The f

act Sny der ref

used to blow is evidence. See Miss. Code Ann. § 63-11-41. This evidence is strengthened by the f act Sny der had been through t his bef ore and understood the consequences of

blowing above the legal lim it. ¶25. In short, prior DUI conviction s a r e e l e me nts of the c rim e , and Sny der’s ref usal to subm it to chem ical tests is relevant a n d a d mi s s ible evidence. So he was not unjustly prejudiced by the S tate’s ref erencing both f

acts. Thus, we f

ind n o prosecutorial m isconduct.
III. Evidence of Marijuana Sm ell ¶26. Sny der also argues any r ef erence to his truck sm elling l ike m arijuana should have been excluded. According to Sny der, Of f icer Creel’s testim ony about sm elling m arijuana

was irrelevant to his DUI trial and t hus inadm issable. See M .R.E. 401. Alternatively , Sny der

asserts that, even if relevant, t his evidence was outweighed by the danger of u nf air prejudice. See M

. R.E. 403 ( providing t hat e ven relevant “evidence m ay be excluded if its probative value i s substantially outweighed by the danger of unf air p rejudice, conf

usion of the issues,

or m isleading the jury ”). ¶27. Of f icer Hem rick did not testif y he believed Sny d er—or his f em ale p assenger—were high. He sim

ply testif ied what the passenger and t ruck sm e l led like. Because Sny der ref used

9f

ield or chem ical tests, the State’s case hinged on what the three of f icers observed that night. And the State is p e rm itted t o tell the jury the com plete story

— even if that story includes other potential b ad a c t s b y the d ef endant. See Ballenger v. State , 667 So. 2d 1242, 1257 (Miss. 1995). ¶28. As to whether the relevancy of this testim ony was outweighed by the danger of unf air prejudice, that w as a decision l ef t to the broad discretion of t he trial j u d ge. S ee Jones v. S tate , 920 So. 2d 465, 475-76 (¶¶32-33) (Miss. 2006) (discussing the trial judge ’ s “ b r o a d discretion” in apply ing Rule 403). A n d o n a p p eal, we cannot say t he judge abused his discretion. See Kidd v
. S t a t e , 7 93 So. 2d 675, 6 81 (¶27) (Miss. Ct. App. 2001) (citations

om itted) (holding that, to reverse based on an e videntiary ruling, a d ef endant m ust show the trial judge a

bused h i s discretion and the adm ission or e x clusion of evidence ef f e c t i v ely denied the def

endant a substantial right).
IV. Erased Dash-Cam Video ¶29. Sny der’s last issue concerns the dash-cam video of his traf f ic s t o p , w hich was not preserved f

o r his trial. A. Spoliation-of-the-Evidence Instruction ¶30. Sny der claim s the judge should have instructed the jury to presum e the erased video would h ave been f

avorable to his def

e nse. But the suprem e court has h eld that to b e entitled

to a s poliation instruction there m ust be evidence of intentional destruction of the e vidence. Hardy v. State , 137 So. 3d 289, 303 (¶52) (Miss. 2014) (citing Murray v
. State , 849 So. 2d 1281, 1286-87 (¶¶20-23) (Miss. 2003); Johnston v. State , 618 So. 2d 90, 9 2 (Miss. 1993)).

1 0W i thout evidence of i ntentional destruction , t h e r e is n o presum ption the unpreserved evidence would have been f avo r a b l e . J

o hnston , 618 S o. 2d at 92. S ny der p resented no evidence the of

f icer i ntentionally destroy ed the m em ory c a rd f rom his dash-cam that night.
W h at the evidence showed was t hat the of f icer sim p ly recorded over t he v i d eo that night becau s e the m em ory card was f ull. He claim ed h e was unaware t he stop would lead to a f elony charge. ¶31. Facing this lack of evidence, Sny der asks this court to infer the video was erased in bad f aith. Essentially , Sny d er is asking this c ourt to overrule, or at least ignore, t he suprem e court’s b ad-f

aith requirem ent. But we have neither the authority nor the i nclination to do so. The law is clear—to be entitled t o a spoliation instruction, one m ust present e vidence of intentional destruction. Hardy , 137 So. 3d at 303 (¶52). Sny d er presented no such e vidence. So we f ind trial judge properly ref used a spoliation instruction.
B. Violation-of-Due-Process Argument ¶32. Finally , Sny der suggests the f a ct the video was not preserved violated h i s r i ght to a f air trial. See California v. T rombetta , 467 U.S. 479, 485-90 ( 1 9 8 4 )

. T r o m betta set o ut a two-part test to d eterm ine when destruction of evidence v iolates a def endant’s f undam ental rights. First, the evidence m ust h ave had a

pparent exculpatory value bef ore it was d estroy ed. Second, t he evidence m

ust be such that t he def

endant c ould not obtain c om parable evidence by other reasonably available m eans. Id. at 489. Four y ears af ter Trombetta , the Suprem e Court added a third elem ent—the f ailure to preserve p otentially usef ul evidence had to result f rom bad f aith on part of the police. Arizona v. Y oungblood , 488 U

. S. 51, 57-58 (1988); see

1 1Freeman v. State , 121 So. 3d 888, 895 (¶16) ( Miss. 2013) ( lay ing out three-part due-processviolation test f

rom Y oungblood

). ¶33. In Freeman , the supr e me c o urt actually reversed a DUI c onviction based on the destruction of the dash-cam v ideo. But i n that c ase, the f acts surrounding the traf

f ic stop

were “hotly contested.” The def endant asked f

o r a copy of the video within a m onth of the traf f i c stop. And the c ounty court had deem e d the v ideo m aterial to the d ef ense and ordered

t h e State to preserve it. Freeman , 121 So. 3 d at 895-96 (¶¶16-18). S o the supr e me c o u r t

never a ctually engaged in the three-part analy sis f rom Trombetta and Y

oungblood

. Instead, the suprem e court held the State’s violation of its court-ordered

duty to preserve the video resulted in a violation of

the def endant’s due-process rights. ¶34. The s uprem e c ourt was caref ul to distinguish a court-ordered duty f rom the general duty to preserve evidence of exculpatory value. Our suprem e court n oted Y o ungblood does

not im pose “on the p olice a n undif f erentiated and a

b solute duty t o retain and to preserve all

m aterial t hat m ight be of conceivable evidentiary signif i cance in a particular prosecution.”
Freeman , 121 So. 3d at 895-96 (¶18) (quoting Y oungblood , 488 U.S. at 5 8). But Freeman

was “clearly not a case in which preserving the destroy ed v i d e o would have im posed unreasonable requirem ents on the police t o e mp l o y guesswork as t o what should be preserved, or to preserve an unreasonable quantity of evidence.” Id. at 896 (¶18). ¶35. This case i s easily distinguishable f rom Freeman

. The video her e h a d n ot been requested before it w as recorded over. The f a c ts surrounding the traf

f ic stop were not hotly disputed. The video w as never deem ed m aterial to the def ense. A nd a judge had not ordered

1 2the video to be preserved.

¶36. This case is really m uch c loser to Ellis v. State , 77 So. 3d 1119 (Miss. Ct. App. 2011).
In Ellis , Kenneth Ray Ellis also argued his due-process r ights were violated because the state trooper f ailed to preserve a m em ory card containing video o f a traf f ic s t o p—a stop that eventually led to Ellis’s D UI arrest. Id. at 1123 (¶14). This court applied the three-part test, zeroing in on the bad-f

aith requirem ent. Id. at 1 123-24 (¶¶18-20). W e f ound Ellis had f

ailed

to show bad f

aith because, by the tim e Ellis’s attorney r equested a copy , the video had already been erased in the usual process of recording over older videos on t he m em ory card. Id. at 1 124 (¶21). T he of f icer testif i e d t h at, unless there w as som e thing unusual about the stop, he sim

ply records over the video. No rule o r regulation m andated he k eep it. Nor did he record o ver Ellis’s stop to conceal the video. Because the of f i cer had acted “in good f

aith and in accord with his no rm al practice,” we f o und no due-process v iolation. Id. (quoting Trombetta , 467 U.S. at 488). ¶37. Sim ilarly here, the of f icer e xplained there was nothing unusual about Sny der’s traf f ic

s t o p . There w as no rule or regulation to preserve t he video. And he did not rec o r d o v e r Sny der’s stop to “circum vent its disclosure.” Id. So, just like his spoliation-instruction
argum ent, Sny der cannot m eet the bad-f aith requirem ent. ¶38. W h ile our r

uling in E llis w a s based on the l ack of bad-f aith, we also expressed our “doubt that the m em ory card had appar e n t e x c u l p a t o ry value prior to i ts erasure.” Id. at (¶20). Here, w e point o ut that Sny der has not shown the v ideo was e xculpatory , m uch less that its exculpatory value w as ap p a r e n t b e f ore it was erased. Sny der presented nothing to

1 3contradict the three of f icers’ version of

events that night. The video just as well m ay have confirmed their accounts as contradicted them

. S ny der’s argum ent is basically t hat the video would have been “better” evidence than the of f icers’ t estim ony . H e assert s i nstead of potentially biased ey ewitness testim ony , the video would have given the jury a “better idea” of Sny der’s behavior that night. But this is not the sam e thing as being exculpatory

. ¶39. Another point Sny der downplay s is his adm i ssion that he h ad been drinking. In Ellis ,

we held that “any exculpatory value of the events f ollowing the stop is s ignif icantly reduced” by a def endant’s adm ission “he was drinking and driving” and had been consum ing alcohol earlier that day “and t hat he ref used the f ield sobriety t est a nd the Intoxily z er test.” Id. The

sam e i s true here. The exculpatory value of the video f or Sny der i s perhaps d

ubious at best. And, like Ellis , a ny exculpatory value would have been signif icantly reduced by Sny der’s adm ission he had been drinking that night at the f air bef ore being pulled over and ref using f ield sobriety and Intoxily zer tests. ¶40. W e f

ind there is n o due-process violat i o n f rom the video not being preserved. W e thus af f irm Sny der’s conviction. ¶41. THE JUDGMENT O F THE LAUDERDALE COUNTY C IRCUIT COURT OF CONVICTION OF FELONY DUI AND SENTENCE OF FIVE YEARS IN THE CUSTODY O F T HE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS T O S ERVE, THREE YEARS SUSPENDED, AND FIVE YEARS OF POST- RELEASE SUPERVISION; AND T O PAY A $ 2,000 FINE AND $500 TO THE MISSISSIPPI CRIME VICTIMS’ C OMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.
LE 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, ISHEE, CARLTON, FAIR, JAMES AND WILSON, JJ., CONCUR.

1 4