Mitchell v. State

          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 ...