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IN THE COURT OF APPEALS 09/17/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-00908 COA

BILLY MARTIN, JR. APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. HOWARD Q. DAVIS, JR. COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALSEE MCDANIEL ATTORNEY FOR APPELLEE: OFFICE OF ATTORNEY GENERAL BY: SCOTT STUART, SPECIAL ASSISTANT ATTORNEY GENERAL DISTRICT ATTORNEY: FRANK CARLTON NATURE OF THE CASE: CRIMINAL - NEGLIGENT HOMICIDE IN THE OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL TRIAL COURT DISPOSITION: GUILTY; SENTENCED TO TWENTY-FIVE YEARS IN MDOC; TEN YEARS SUSPENDED

BEFORE THOMAS, COLEMAN, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT:

Billy Martin, Jr. was convicted of vehicular homicide. On appeal he alleges two grounds for reversal: (1) the court erred in refusing a jury instruction regarding the victim's own negligence, and (2) the verdict was against the great weight of the evidence. Although we find no merit in these issues, we find plain error in the sentencing of Martin to twenty-five years imprisonment when the statute only provided for a maximum ten-year penalty at the time the crime was committed. We affirm the conviction, but remand for resentencing. FACTS On March 14, 1992, Martin and his wife drove to Inverness to visit relatives. On the way the couple stopped at a local store to buy a wine cooler, which Martin was drinking when they arrived at the relatives' house. Martin then decided to go back to Indianola without his wife. He turned on to B.B. King Road in Indianola at approximately 7:30 p.m. On the road were Anthony Harris, twelve, and Leroy Wilson, age fifteen, who were riding their bicycles. Leroy, who was riding in front of Anthony, heard Martin's car coming and yelled to warn Anthony. Even so, Anthony was struck by the car and knocked into the ditch. Anthony was transported to Delta Medical Center in Greenville, where he died the next morning. Martin did not stop after hitting the boy, but instead drove to the Indianola Police Station where he told officers that he had hit a child on a bicycle. The officers detected the odor of alcohol and asked Martin if he would consent to an intoxilizer test. He did, and the test results registered .12 per cent by weight volume of alcohol. DISCUSSION Martin alleges that the accident was caused by Anthony's turning his bicycle into the path of the vehicle. He alleges that evidence of Anthony's negligence compels a decision that the verdict was against the great weight of the evidence. He further alleges error in failing to be granted an instruction regarding the victim's possible negligence. We will consider these two issues together. 1. Weight of evidence and jury instruction The supreme court has stated that "[i]n determining whether a jury verdict is against the overwhelming weight of the evidence, . . . this Court accepts as true all evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial." Eakes v. State, 665 So. 2d 852, 872 (Miss. 1995). Martin was found guilty of violating this statute: (1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; or (c) has

ten one-hundredths percent (.10%) or more by weight volume of alcohol in the person's blood based upon milligrams of alcohol per one hundred (100) cubic centimeters of blood as shown by a chemical analysis of such person's breath, blood or urine administered as authorized by this chapter.

Miss. Code Ann.

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