WILSON, J., FOR THE COURT
DATE OF JUDGMENT: 08/14/2017 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 12/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND WILSON, JJ. WILSON, J., FOR THE COURT : ¶1. Kaleigh Dartez had a blood-alcohol concentration of at least .219 percent when she wrecked her car while traveling on Kiln-Delisle Road after 3 a.m. on November 14, 2014. Dartez's passenger, Zackary Whitfield, was killed in the wreck, and Dartez was indicted, convicted, and sentenced for aggravated DUI. On appeal, Dartez argues that (1) her indictment was defective because it did not allege a specific act of negligence, (2) the jury instructions were erroneous because they did not identify a specific act of negligence, (3) the jury instructions on negligence were erroneous and confusing, (4) the jury's guilty verdict was against the overwhelming weight of the evidence, and (5) she was entitled to an acquittal because her indictment mistakenly referenced the wrong subsection of the DUI statute. ¶2. Dartez's first two arguments fail in light of this Court's recent holding that under the aggravated DUI statute "[t]he State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner." Friston v. State, 243 So. 3d 198, 205 (¶34) (Miss. Ct. App. 2017), cert. denied, 246 So. 3d 71 (Miss. 2018). In addition, we hold that the jury was fairly and adequately instructed, the jury's verdict was not against the overwhelming weight of the evidence, and Dartez's indictment clearly informed her of the nature of the charges. Accordingly, Dartez's conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
¶3. On November 14, 2014, around 4 a.m., Harrison County deputy sheriff Brandon Hendry was on his way home after his shift. As Hendry drove down Kiln-Delisle Road, he saw a man and a woman, later identified as Dartez, standing near a large delivery truck, which was stopped in the road with its hazard lights flashing. Hendry stopped and turned on his car's blue lights, which also activated the car's two video cameras. One camera records video in front of the car with audio from the officer's body microphone; the other camera records video and audio in the backseat of the car. ¶4. The man, a truck driver, told Hendry that he had come upon Dartez standing in the middle of the road, dazed and injured. Dartez's head was bleeding. Hendry also noticed that Dartez's speech was slurred, and "[s]he had an overwhelming odor of some sort of alcoholic verdict or a new trial, which the trial court denied, and a timely notice of appeal.
ANALYSIS
I. Indictment ¶15. Dartez argues that her indictment was defective because it did not allege a specific negligent act as an element of her aggravated DUI charges. The indictment alleged that Dartez drove "while under the influence of intoxicating liquor" (Count I) and with a blood-alcohol concentration of .08 percent or more (Count II). Both counts further alleged that Dartez "did . . . in a negligent manner cause [Whitfield's] death." Dartez claims that the indictment's failure to allege a specific act of negligence deprived her of her constitutional right to notice of the "nature and cause of the accusation" against her. U.S. Const. amend VI; Miss. Const. art. 3, § 26. ¶16. "Issues concerning the sufficiency of an indictment are questions of law; thus, our standard of review is de novo." Koch v. State, 222 So. 3d 1088, 1092 (¶13) (Miss. Ct. App. 2017), cert. denied, 222 So. 3d 312 (Miss. 2017). "The purpose of an indictment is to satisfy the constitutional requirement that a 'defendant be informed of the nature and cause of the accusation.'" Taylor v. State, 94 So. 3d 298, 305 (¶15) (Miss. Ct. App. 2011) (quoting U.S. Const. amend VI; citing Miss. Const. art. 3, § 26). "Therefore, in order for an indictment to be sufficient, it must contain the essential elements of the crime charged." Id. (quotation marks omitted). ¶17. "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any Friston that under the aggravated DUI statute "[t]he State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner." Friston, 243 So. 3d at 205 (¶34). If the State is not required to prove a specific act of negligence at trial, it necessarily follows that such specificity is not required in the indictment. The indictment in this case stated the essential elements of the offense. Therefore, Dartez's argument is without merit.
II. Jury Instructions
A. Elements Instructions ¶23. In an extension of her first argument, Dartez next contends that the jury instructions should have identified a specific act of negligence on her part that caused Whitfield's death. She argues that the elements instructions were inadequate because, consistent with her indictment, they only required the jury to find that (1) she drove her car while under the influence of intoxicating liquor or with a blood-alcohol concentration of .08 percent or more and (2) "did . . . in a negligent manner cause [Whitfield's] death." ¶24. Dartez did not raise the issue at trial. Therefore, the issue is procedurally barred on appeal. Friston, 243 So. 3d at 204 (¶29). ¶25. The issue is also without merit. As stated above, "[t]he State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner." Id. at 205 (¶34). "Thus, contrary to [Dartez's] claim, the jury was not required to be instructed on a specific negligent act . . . in order to convict [her] of the charge." Id. The State presented evidence that Dartez was negligent in maintaining her lane of travel, which caused her to lose control of her vehicle and, thereby, caused Whitfield's death. The jury was properly instructed and returned a guilty verdict that was supported by the evidence at trial.
B. Negligence Instruction ¶26. Dartez also argues that the trial court gave erroneous and confusing jury instructions regarding negligence. The primary jury instruction on negligence (S-3) read:
The Court instructs the Jury that Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like or similar circumstances. Negligence may consist either in doing something that a reasonable careful person would not do under like or similar circumstance or in failing to do something that a reasonable careful person would do under like or similar circumstances. Simple negligence is sufficient for a conviction of Driving Under the Influence Causing Death or Disfigurement.
The trial court also gave the following instruction (S-4):
The Court instructs the Jury that at all times a driver of a vehicle is required to maintain the easy and reasonable control of her vehicle.
Dartez argues that S-4 is a misstatement of the law and its inclusion confuses the instruction given in S-3 by presenting a different standard for negligence. ¶27. Dartez did not object to these instructions at trial. When Dartez's counsel was asked if he had any objection to S-4, he said, "I'm not sure—the only term I'm not sure about in there is where it says, it is required to maintain the easy and reasonable control of the vehicle. I'm not saying it's not right. I've just never heard it before." The State responded that the instruction had been approved in prior cases, citing
Lepine v.
State, 10 So. 3d 927 (Miss. Ct. App. 2009), and
Comby v.
State, 901 So. 2d 1282 (Miss. Ct. App. 2004). Dartez offered no further response. Because Dartez did not object to the instruction at trial, this issue is also
procedurally barred on appeal.
Lepine, 10 So. 3d at 943-44 (¶48). ¶28. Moreover, the issue is without merit. In
Lepine and
Comby, this Court held that the same or similar instructions were not erroneous.
Lepine, 10 So. 3d at 944 (¶¶49-50);
Comby, 901 So. 2d at 1288 (¶¶14-15). In
Lepine, we emphasized that the court also gave the jury an instruction on negligence similar to instruction S-3 given in this case.
Lepine, 10 So. 3d at 944 (¶50). We held that "the negligence instructions, when read as a whole, adequately instructed the jury on the standard of care applicable to [the defendant]."
Id. We reach the same conclusion in this case.
III. Weight of the Evidence ¶29. Dartez next argues that the evidence of negligence on her part did not outweigh the possibility that the wreck had some other cause. She acknowledges that the State's expert opined that the driver lost control of the vehicle as a result of oversteering, but she argues that there was no evidence of the vehicle's speed. She also argues that the evidence did not exclude possible mechanical problems or an independent cause such as oncoming traffic or an animal in the road. She asserts that "[i]t was just as likely that the wreck resulted, not from negligence, but some other accidental cause." She further argues her motion for a new trial should have been granted because the verdict was against the weight of the evidence. ¶30. We review the trial judge's decision denying a new trial for an abuse of discretion. Little v. State, 233 So. 3d 288, 292 (¶21) (Miss. 2017). "We do not reweigh evidence," "assess the witnesses' credibility," or "resolve conflicts between evidence." Id. at 289 (¶1). "Those decisions belong solely to the jury." Id. On appeal, we "view the evidence in the light most favorable to the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id. ¶31. The verdict in this case is not contrary to the overwhelming weight of the evidence. Roe, the State's accident reconstruction expert, testified about his investigation and analysis of the wreck. He visited the site, photographed the scene, and marked significant points. He then used a device to take accurate, laser-guided measurements of the scene so that it could be accurately diagramed. Based on the evidence, Roe concluded that the driver of the car did not maintain the proper lane of travel. Roe further concluded that the driver overcorrected and lost control of the car as a result. The car then left the road, hit the ditch, and flipped. On cross-examination, Roe acknowledged that he could not say for certain why the driver failed to maintain her lane. He could only testify that she failed to do so. However, the State was not required to disprove every imaginable cause of the wreck. See Taylor, 94 So. 3d at 315 (¶53); Dison v. State, 61 So. 3d 975, 980 (¶17) (Miss. Ct. App. 2011). The State's burden was to prove beyond a reasonable doubt that Dartez's negligence was the cause of the wreck and Whitfield's death. There is no evidence to suggest that Dartez wrecked the car because of mechanical problems, oncoming traffic, or an animal in the road. The jury found that Dartez, driving with a blood-alcohol concentration nearly three times the legal limit, wrecked the car because she was negligent. There is no contrary evidence that overwhelms the jury's verdict. Therefore, the trial judge did not abuse her discretion by denying Dartez's motion for a new trial. Little, 233 So. 3d at 292 (¶21).
citation will be treated as surplusage unless it is found prejudicial to the defendant." Id. The indictment clearly charged Dartez with aggravated DUI based on her blood-alcohol concentration, which was still nearly three times the legal limit three hours after the fatal wreck. Dartez had clear notice of the nature of the charges against her. Therefore, the "incorrect citation" was mere "surplusage." Id. This issue is also without merit.
The error in the indictment is likely attributable to amendments enacted during the 2014 legislative session that took effect shortly before Dartez's offense. Until October 1, 2014, subsection (1)(c) was the subsection applicable to the facts of this case, i.e., "per se DUI" based on the driver's blood-alcohol concentration. However, effective October 1, 2014, the relevant language was moved to subsection (1)(d). See 2014 Miss. Laws Ch. 493 (H.B. 412), § 1. --------
CONCLUSION
¶34. There is no reversible error in Dartez's indictment or in the instructions given to the jury at trial. Furthermore, the jury's verdict finding Dartez guilty of aggravated DUI is not contrary to the overwhelming weight of the evidence. Accordingly, Dartez's conviction and sentence are AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.