Van Wagner v. State
| Docket Number: | 2010-KA-01631-COA Linked Case(s): 2010-KA-01631-COA ; 2010-CT-01631-SCT ; 2010-CT-01631-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-14-2012 Opinion Author: Griffis, P.J. Holding: Affirmed in part, reversed and rendered in part. |
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| Additional Case Information: |
Topic: Kidnapping & Aggravated DUI - Sufficiency of evidence - Section 97-3-53 - Weight of evidence - Discovery violation - URCCC 9.04 - Probable cause - Blood-alcohol test - Habitual offender status - M.R.E. 803(6) and (8) - M.R.E. 1101(b)(3) Judge(s) Concurring: Lee, C.J., Irving, P.J., Ishee, Roberts and Russell, JJ. Non Participating Judge(s): Fair, J. Concur in Part, Dissent in Part 1: Maxwell, J. Concur in Part, Dissent in Part Joined By 1: Barnes and Carlton, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-09-2010 Appealed from: Pearl River County Circuit Court Judge: Prentiss Harrell Disposition: CONVICTED OF COUNT I, KIDNAPPING, AND SENTENCED TO TWENTY-FIVE YEARS; COUNT II, AGGRAVATED DUI, AND SENTENCED TO TWENTY-FIVE YEARS, AS A HABITUAL OFFENDER, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $2,500 FINE, $2,217 IN RESTITUTION, $2,500 TO THE PEARL RIVER COUNTY PUBLIC DEFENDERS FUND, AND $6,500 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND Case Number: K2009-429H |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jerry D. Van Wagner |
GEORGE T. HOLMES, LESLIE S. LEE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Kidnapping & Aggravated DUI - Sufficiency of evidence - Section 97-3-53 - Weight of evidence - Discovery violation - URCCC 9.04 - Probable cause - Blood-alcohol test - Habitual offender status - M.R.E. 803(6) and (8) - M.R.E. 1101(b)(3) |
| Summary of the Facts: | Jerry Van Wagner was convicted of Count I, kidnapping, and Count II, aggravated DUI, and sentenced as a habitual offender to twenty-five years for Count I and twenty-five years for Count II, with sentences ordered to run consecutively. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Van Wagner claims there was insufficient evidence to support his conviction of kidnapping. The State relied on the following facts to support the kidnapping charge: an alleged incident at McLeod Park where Van Wagner was arrested and charged with domestic abuse against the victim and unlocked chains wrapped around the victim’s legs when she was thrown from the vehicle. Van Wagner argues that even if the State proved that he had assaulted the victim in McLeod Park the day before the accident, this does not prove beyond a reasonable doubt that the victim was “forcibly seized and confined” or “imprisoned against her will” as required by section 97-3-53 on the following day. The State failed to show through any witness or evidence that the victim was forced into the vehicle with Van Wagner. Also, the State did not offer any evidence to show that Van Wagner had seized the victim or that he had confined the victim against her will. Therefore, Van Wagner was entitled to a directed verdict on the kidnapping charge. Issue 2: Weight of evidence Van Wagner argues that the verdict in Count II, aggravated DUI, is against the overwhelming weight of the evidence, because the State failed to show that he committed a negligent act while driving intoxicated. In cases involving aggravated DUI, the State must prove that the defendant not only consumed alcohol prior to the accident, but that he performed a negligent act that caused the death of another. Although there is conflicting testimony about the speed of the car, the verdict is not against the overwhelming weight of the evidence. The State presented expert testimony by a witness using accident reconstruction to show that Van Wagner did not have control of his vehicle at the time of the accident. He also testified that the SUV did not suffer a tire blowout. Thus, this issue is without merit. Issue 3: Discovery violation During the trial, both the State and Van Wagner were surprised by an officer’s testimony that he had obtained consent from Van Wagner prior to administering a blood-alcohol test. Van Wagner’s counsel objected. Van Wagner now argues the trial judge’s reasoning for overruling the objection was not based on an accepted rule of law and was an abuse of discretion. A violation of URCCC 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice. Here, it is clear from the record that any violation of Rule 9.04 did not result in a miscarriage of justice. The State did not know of the consent form’s existence. Van Wagner was given an opportunity to cross-examine the officer regarding the newly discovered consent form. Issue 4: Probable cause Van Wagner argues that the officer lacked consent as well as probable cause to request a blood-alcohol test in the hospital after the accident. Here, the officer who requested that the test be administered to Van Wagner was identified and testified at Van Wagner’s trial. Further, the smell of alcohol is sufficient to establish probable cause. Multiple eyewitnesses told the officer that Van Wagner had been driving. Further, the officer smelled alcohol when encountering Van Wagner in the hospital room, and the accident showed negligent driving. Issue 5: Habitual offender status Van Wagner argues that his sentence as a habitual offender was illegal for two reasons: an improper amendment to the indictment post-trial, and defective proof of prior convictions. A change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case. The amendment to Van Wagner’s indictment did not alter Van Wagner’s defense in any way and was, therefore, proper. Van Wagner argues that the State’s evidence is hearsay and inadmissible because it does not fall under any exception, specifically the business-record exception under M.R.E. 803(6) and (8). To be sentenced as a habitual offender, all that is required is that the accused be properly indicted as a habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecution’s proof. Further, under M.R.E. 1101(b)(3), the Mississippi Rules of Evidence do not apply to sentencing hearings. The State relied on Van Wagner’s pen-pack, and pen-packs are competent evidence to show prior convictions. |
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