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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-KA-01099 COA JAMES R. BOYD A/K/A JIMMY ROBERT BOYD A/K/A "JIMBO" v. STATE OF MISSISSIPPI APPELLANT

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: DISTRICT ATTORNEY: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 10/05/95 HON. BILLY JOE LANDRUM JONES COUNTY CIRCUIT COURT PAUL G. SWARTZFAGER, JR. OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS JEANNENE T. PACIFIC CRIMINAL - FELONY FELONY DUI: SENTENCED TO SERVE 5 YRS WITH 3 YRS SUSPENDED, LEAVING 2 YRS TO SERVE; PAY A FINE OF $2000 AFFIRMED - 11/4/97

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

11/25/97

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ. HERRING, J., FOR THE COURT: James R. Boyd appeals to this Court from his conviction on September 18, 1995, in the Circuit Court of Jones County, Mississippi, of operating a vehicle under the influence of intoxicating liquor, in violation of Section 63-11-30(1) of the Mississippi Code of 1972, as revised in 1994. Since this conviction was Boyd's third offense pursuant to the provisions of Section 63-11-30(1) within a period of five years, he was adjudged to be guilty of a felony in accordance with the provisions of Section 63-11-30(2)(c); sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections, with three years suspended; fined the sum of $2,000; and assessed with court costs in the sum of $213.50. On appeal, Boyd contends that the indictment rendered in this action was legally insufficient and that he violated no laws by driving a vehicle on private property. Furthermore, he claims that he was improperly and involuntarily required to take a test to determine

alcohol concentration and that the verdict of the jury was against the overwhelming weight of the evidence. Finding no reversible error, we affirm. I. THE FACTS James R. Boyd, Jeff Thames, and Betty Rose Keyes spent most of the day on September 7, l994, drinking alcoholic beverages at the home of Keyes's uncle in Laurel, Mississippi. According to Boyd, he had two previous DUI convictions and was prohibited from driving at the time. The driver's license of Jeff Thames was also suspended at the time, by virtue of his prior conviction of driving while intoxicated. Nevertheless, Boyd, Thames, and Keyes all traveled to a nearby truck stop to buy more beer at approximately 7:00 P.M. According to Boyd, he and his friends traveled to the truck stop in Boyd's pick-up truck, with Thames driving, in a heavy rainstorm. All three were in a drunken condition at the time. When Boyd, Thames, and Keyes arrived at the American Food truck stop, Keyes went inside to buy the beer, leaving Thames, who was shirtless, and Boyd in the vehicle. Keyes was confronted inside the building by the owner of the truck stop, Michael Wilson. He informed Keyes that she could not purchase any beer because the electric power was off due to the rainstorm. Wilson also suggested that Keyes go to the Shell station across the street to make her purchase. When Keyes asked to use the bathroom, Wilson also refused this request, on the grounds that since the electricity inside the building was not working and Keyes appeared to be intoxicated, he was afraid that she would fall and injure herself on the premises, resulting in a personal injury claim against his business establishment. Keyes became upset and claimed Wilson had stolen money from her. Wilson had previously noticed that a city police patrol vehicle was parked across the road at Hardee's fast food restaurant and suggested to Keyes that they get the policeman across the road to come and settle the dispute. When Keyes agreed, Wilson ran outside into the rain, and across the road to Hardee's where he located J.R. Rivas, a patrolmen with the Laurel Police Department. In making his way to Hardee's, Wilson noticed James R. Boyd, whom he had known previously, and Thames in the pickup truck. He also noticed that Thames was not wearing a shirt of any kind. According to Rivas, Wilson advised him that Keyes was creating a major disturbance at his store and that she was with two men in a pickup truck. He was further advised by Wilson that all three appeared to be intoxicated. Rivas sped across the street to the truck stop in his vehicle and observed Boyd's vehicle, a Chevrolet C-10 pickup truck, begin to pull away with Thames driving and with Keyes and Boyd as passengers. Boyd later testified that he and Thames decided to drive behind the building of the truck stop to get rid of the beer cans and other debris in the truck. Rivas followed the pickup truck around the back of the building and lost sight of Boyd's vehicle for a few seconds. When he saw Boyd's vehicle again, Thames was no longer driving and Boyd was operating the vehicle. At this time, Officer Rivas turned on his siren, spoke over his vehicle public address system to the passengers of the pickup truck, and ordered them to get out of the vehicle. According to Rivas, Boyd, Thames, and Keyes all appeared to be intoxicated, and inside the vehicle he found seven empty beer cans that were still cold. Boyd, Thames, and Keyes were all placed in Rivas's patrol vehicle and taken to the Laurel Police Department building. At police headquarters, Boyd was offered an intoxilyzer test to determine his

blood alcoholic content. He was advised that he could refuse the test but agreed to take it. According to Rivas, the test results showed that Boyd had a 0.217 percent blood alcohol content at the time. However, during the processing and subsequent paperwork performed by Rivas, he misplaced the test results and decided to administer a second test to Boyd five to ten minutes later at approximately 8:40 P.M. Boyd agreed to take the second test and this time scored 0.199 percent. When Rivas checked Boyd's previous driving record, he found that he had two previous DUI convictions. Thus, he charged Boyd with felony DUI and transported him to the Jones County Sheriff's Office for incarceration. Thames refused to take the intoxilyzer test and ultimately pleaded guilty to his second DUI offense. Keyes was charged and ultimately pleaded guilty to being drunk in a public place. It is noteworthy that Boyd testified at his trial that he never drove his vehicle on the day in question, until ordered to do so by Officer Rivas. According to Boyd, Rivas ordered him to drive his vehicle under the canopy in front of the American Food truck stop building to get it out of the rain, after the parties had been stopped by Rivas and commanded to get out of the vehicle. Nevertheless, as stated above, the jury convicted Boyd of illegally operating his vehicle while intoxicated in violation of Section 63-11-30(1) of the Mississippi Code of l972. II. THE ISSUES Boyd assigns the following errors on appeal: A. WHETHER THE INDICTMENT IS LEGALLY SUFFICIENT TO CHARGE BOYD WITH A FELONY OFFENSE PURSUANT TO MISS. CODE ANN. SECTION 63-11- 30(2) (C) (REV. 1994).(1) B. WHETHER MISS. CODE ANN. SECTION 63-11-5(1) (REV. 1994) APPLIES TO ANY PERSON WHO OPERATES A MOTOR VEHICLE UPON PRIVATE PROPERTY WITHIN THE STATE OF MISSISSIPPI? C. WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE? III. ANALYSIS A. WAS THE INDICTMENT LEGALLY SUFFICIENT TO CHARGE BOYD WITH A FELONY OFFENSE PURSUANT TO MISS. CODE ANN. SECTION 63-11-30(2)(C) (REV. 1994)? Boyd claims that the indictment against him was insufficient in that it did not specify as a condition precedent to a third offense felony charge, that Boyd had been charged and convicted specifically of a "first offense" and a "second offense" pursuant to Section 63-11-30(2). To support this contention, the Appellant relies on Page v. State, 607 So.2d 1163,1168 (Miss. l992), and Ashcraft v. City of Richland, 620 So.2d 1210, 1211 (Miss. l993). A review of the record indicates that Boyd's indictment merely stated: [T] he said James R. Boyd, has two or more convictions for violation of section 63-11-30(l) of

the Mississippi Code of l972. Said offenses all have occurred within a five year period of this offense. Evidence of which is attached hereto by court abstracts as Exhibits l and 2. Boyd is correct as to what was stated by the Mississippi Supreme Court in the Page and Ashcraft cases. However Mississippi Code Annotated Section 63-11-30(7) became effective on June 6, l994, prior to the date of the charge filed against Boyd and now only requires: For the purposes of determining how to impose the sentence for a second, third or subsequent conviction under this section, the indictment shall not be required to enumerate previous convictions. It shall only be necessary that the indictment state the number of times that the defendant has been convicted and sentenced within the past five (5) years under this section to determine if an enhanced penalty shall be imposed. . . .

The indictment in the case sub judice clearly stated that Boyd had been convicted of at least two previous DUI offenses within a five year period of the third charge. That is all that is required under the current statute. It is also noteworthy that the Page and Ashcraft cases were specifically overruled in the recent case of McIlwain v. State, No. 95-KA-00146 SCT, 1997 WL 441925 (Sup. Ct. Miss. Aug. 7, 1997), in which our supreme court abolished the requirement of listing each previous offense specifically in the indictment. In McIlwain, the court stated that the indictment must still supply enough information to the defendant to identify with certainty the prior convictions relied upon by the State for enhanced punishment. Id. at *3 (citing Benson v. State, 551 So. 2d 188, l96 (Miss. l989)). In the case sub judice, the indictment issued against Boyd was accompanied by the court abstracts of his two prior DUI convictions. These abstracts describe in detail the date and disposition of each case, as well as his blood alcohol level at the time of each arrest. We find that the indictment rendered against Boyd was legally sufficient and identified with certainty the prior convictions relied upon by the State for enhanced punishment pursuant to Section 63-11-30 (2). This assignment of error has no merit. B. DID THE TRIAL COURT ERR IN FAILING TO DIRECT A VERDICT IN FAVOR OF BOYD, ON THE BASIS THAT SECTION 63-11-5(1) OF THE MISSISSIPPI CODE OF 1972 DOES NOT APPLY TO PERSONS OPERATING MOTOR VEHICLES ON PRIVATE PROPERTY? Boyd contends that pursuant to Mississippi Code Annotated Section 63-11-5(l) (Rev. l993), Officer Rivas had no authority to stop him or to administer any test to determine blood alcohol content, since he was driving on private property and not upon a public highway, road, or street as required by the statute. Section 63-11-5(l) states a follows: Any person who operates a motor vehicle upon the public highways, public roads and streets of this state shall be deemed to have given his consent, subject to the provisions of this chapter, to a chemical test or tests of his breath, blood or urine for the purpose of determining the presence

in his body of any other substance which would impair a person's ability to operate a motor vehicle . . . . In support of his position Boyd points out that pursuant to Mississippi's Uniform Highway Traffic Regulation Law - Rules of the Road, Miss. Code Ann.

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