Bobby R. Mitchell
v.
State of Alabama
Appeal
from Jefferson Circuit Court (CC-17-4301; CC-17-4302; and
CC-17-4304)
KELLUM, JUDGE.
Bobby
R. Mitchell was convicted in the Jefferson District Court of
driving under the influence of alcohol ("DUI"), see
§ 32-5A-191(a)(2), Ala. Code 1975; speeding, see §
32-5A-171, Ala. Code 1975, and Part II of this opinion;
possessing alcohol in an open container while driving on a
public roadway, see § 32-5A-330, Ala. Code 1975; and
driving without a seatbelt, see § 32-5B-4, Ala. Code
1975. He appealed to the circuit court for a trial de novo,
and a jury found him guilty of DUI, speeding, and possessing
an open container; the jury acquitted him of the offense of
driving without a seatbelt. For the DUI conviction, the
circuit court sentenced Mitchell to one year in the county
jail but suspended the sentence and placed Mitchell on
probation for two years; the circuit court also imposed a $1,
000 fine and court costs. For the speeding conviction, the
circuit court imposed a $250 fine and court costs. For the
open-container conviction, the circuit court imposed a $25
fine.
On
appeal, Mitchell challenges the sufficiency of the evidence
to sustain his convictions for DUI and speeding. He raised
these issues in his motion for a judgment of acquittal made
at the close of the State's case and in his motion for a
new trial. He also challenges the legality of his sentence
for his speeding conviction.
The
sole witness at trial was Benton Carter, a state trooper with
the Alabama Law Enforcement Agency. The State also introduced
into evidence the video from Trooper Carter's body
camera. We have reviewed that video, and it largely supports
Trooper Carter's testimony. Trooper Carter testified that
at approximately 11:30 a.m. on July 6, 2017, he was traveling
south on Interstate 59 in his marked patrol vehicle when he
saw in his rearview mirror a silver automobile approaching
him from behind at what appeared to be a high rate of speed.
Trooper Carter testified that he and the silver vehicle were
in a construction zone where the speed limit was 40 miles per
hour. When he turned on the radar at the rear of his patrol
vehicle, it indicated the silver vehicle was traveling at 80
miles per hour. Once the silver vehicle passed him, Trooper
Carter executed a traffic stop. As the vehicle passed him and
again when the vehicle exited the interstate to pull over,
Trooper Carter noticed that the driver, who was later
identified as Mitchell, was not wearing a seatbelt.
As was
his standard practice, Trooper Carter approached the vehicle
and asked Mitchell for his driver's license and proof of
insurance. As he and Mitchell talked, Trooper Carter said, he
noticed a "very strong" odor of alcohol on
Mitchell's breath and emanating from the vehicle. (R.
13.) In addition, Mitchell was talking a lot and speaking
fast. Trooper Carter asked Mitchell if he had been drinking
alcohol, but Mitchell stated that he had not.
Trooper
Carter asked Mitchell to get out of his vehicle to perform
field-sobriety tests, specifically, the one-leg-stand test
and the walk-and-turn test. Mitchell informed Trooper Carter
that he had physical problems with his legs, and Trooper
Carter told Mitchell to just "do the best you can."
(R. 14.) According to Trooper Carter, Mitchell had an
"unsteady gate" as he got out of his vehicle to
perform the tests, but Trooper Carter was unsure if that was
because of Mitchell's physical problems or because of
alcohol consumption. (R. 19.) Mitchell was able to perform
the one-leg-stand test for only six seconds, and when he
attempted to perform the test a second time, without Trooper
Carter's asking him to, he lasted eight seconds. Mitchell
adequately performed the walk-and-turn test. However, Trooper
Carter said that, during the traffic stop, Mitchell appeared
"boisterous," was "kind of all over the
place," and was "just not even engaged in what was
going on." (R. 17.) In addition, Trooper Carter said,
Mitchell's speech was slurred and he kept repeating
himself.
After
the tests were completed, Trooper Carter again asked Mitchell
if he had been drinking alcohol, and Mitchell admitted that
he had. Trooper Carter then administered a portable
field-breathalyzer test, using an Alco-Sensor testing device,
which indicated that Mitchell had a breath-alcohol level of
0.138.[1] In addition, Trooper Carter said that
there was a styrofoam cup in Mitchell's vehicle that had
a "very strong" odor of alcohol (R. 24) and a can
of "a flavored kind of beer" under the driver's
seat. (R. 22.) As seen on the video from Trooper Carter's
body camera, printed on the can was a statement indicating
that it contained eight percent alcohol. Trooper Carter
testified that the liquid in the can was the same color as
the liquid in the styrofoam cup. Trooper Carter then arrested
Carter for driving under the influence. Mitchell subsequently
refused to submit to the Draeger breath test. It was Trooper
Carter's opinion that Mitchell was under the influence of
alcohol.
"'"In determining the sufficiency of the
evidence to sustain a conviction, a reviewing court must
accept as true all evidence introduced by the State, accord
the State all legitimate inferences therefrom, and consider
all evidence in a light most favorable to the
prosecution."' Ballenger v. State, 720
So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth
v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984),
aff'd, 471 So.2d 493 (Ala. 1985). '"The test
used in determining the sufficiency of evidence to sustain a
conviction is whether, viewing the evidence in the light most
favorable to the prosecution, a rational finder of fact could
have found the defendant guilty beyond a reasonable
doubt."' Nunn v. State, 697 So.2d 497, 498
(Ala.Crim.App.1997), quoting O'Neal v. State,
602 So.2d 462, 464 (Ala.Crim.App.1992). '"When there
is legal evidence from which the jury could, by fair
inference, find the defendant guilty, the trial court should
submit [the case] to the jury, and, in such a case, this
court will not disturb the trial court's
decision."' Farrior v. State, 728 So.2d
691, 696 (Ala.Crim.App.1998), quoting Ward v. State,
557 So.2d 848, 850 (Ala.Crim.App.1990). 'The role of
appellate courts is not to say what the facts are. Our role
... is to judge whether the evidence is legally
sufficient to allow submission of an issue for decision [by]
the jury.' Ex parte Bankston, 358 So.2d 1040,
1042 (Ala. 1978)."
Gavin v. State, 891 So.2d 907, 974
(Ala.Crim.App.2003).
I.
Mitchell
first contends that the evidence was insufficient to sustain
his conviction for DUI because, he says, Trooper Carter's
observations of his behavior were not, alone, sufficient to
establish that he was under the influence of alcohol to such
a degree that he was unable to safely operate his vehicle.
This argument is meritless.
"To establish a prima facie case of driving
while under the influence of alcohol under §
32-5A-191(a)(2), [Ala. Code 1975, ] the state must prove
beyond a reasonable doubt that the appellant drove, or was in
actual physical control of, a motor vehicle while he was
under the influence of alcohol to such an extent that it
affected his ability to operate his vehicle in a safe
manner."
Goodwin v. State, 728 So.2d 662, 667
(Ala.Crim.App.1998).
The
evidence indicated that Mitchell was operating a motor
vehicle 40 miles per hour over the posted speed limit when he
passed a marked state-trooper vehicle. Trooper Carter smelled
a strong odor of alcohol emanating from Mitchell's breath
and from the vehicle; Mitchell admitted that he had been
drinking alcohol; and an open container of alcohol was found
in Mitchell's vehicle. Trooper Carter stated that
Mitchell appeared boisterous but unengaged during the traffic
stop and that Mitchell was speaking fast, repeating himself,
and slurring his words. Although Mitchell's physical
ailments may have contributed to his inability to perform the
one-leg-stand test and Mitchell adequately performed the
walk-and-turn test, a portable field-breathalyzer test
indicated that Mitchell's breath-alcohol level was 0.138.
Trooper Carter testified that, based on his experience and
his observations of Mitchell, it was his opinion that
Mitchell was "definitely" under the influence of
alcohol. (R. 26.) In addition, the jury was able to watch the
video from Trooper Carter's body camera and to assess
Mitchell's appearance and demeanor. Viewed in the light
most favorable to the State, this evidence was more than
sufficient to establish a prima facie case of DUI and to
warrant sending the case to the jury on that charge.
II.
Mitchell
also contends that the evidence was insufficient to sustain
his conviction for what he refers to as "speeding in a
construction zone with workers ...