IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO KA COA APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY STATE OF MISSISSIPPI

E-Filed Document Sep 23 2014 22:49:47 2013-KM-02085-COA Pages: 16 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO. 2013-KA-02085-COA PAXTON AUSTIN APPELLANT VERSUS STATE OF MISSISSIPPI APPELLEE APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY STATE OF MISSISSIPPI BRIEF OF APPELLANT ORAL ARGUMENT NOT REQUESTED RODNEY A. RAY 301 5TH ST STE B P.O. BOX 1018 COLUMBUS, MS 39703-0170 (662) 329-0110 MSB 8876 ATTORNEY FOR APPELLANT

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO. 2013-KM-02085-COA PAXTON AUSTIN APPELLANT VERSUS STATE OF MISSISSIPPI APPELLEE APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSISSIPPI BRIEF OF APPELLANT RODNEY A. RAY 301 5th ST ST B P.O. BOX 1018 COLUMBUS, MS 39703 Telephone: 662-329-0110 Facsimile: 662-329-3522 MSB 8876 Attorney for PAXTON AUSTIN

IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI PAXTON AUSTIN VERSUS STATE OF MISSISSIPPI APPELLANT CASE NO. 2013-KA-02085-COA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualifications or recusal. Paxton Austin, Appellee Rodney A. Ray, Trial and Appellant Counsel Hon. Jim Hood, Attorney General John Henry, Assistant Attorney General Hon. Michelle Easterling, County Prosecuting Attorney Honorable Lee J. Howard, IV, Trial Judge /s/rodney A. Ray Rodney A. Ray Attorney for Appellant i

TABLE OF CONTENTS PAGE Certificate of Interested Persons........................................ Table of Contents................................................... Table of Authorities................................................... i ii iii Statement of the Issue................................................. 1 Statement of the Case.................................................. 2 Summary of the Argument.............................................. 4 Argument........................................................... 5 Factual Background............................................. 5 First Assignment of Error......................................... 6 Conclusion........................................................... 10 Certificate of Service and ECF Filing....................................... 11 ii

TABLE OF AUTHORITIES CASES PAGE Herring v. State, 691 So.2d 948 (Miss.1997).............. 6 Jones v. State, 958 So.2d 840 (Miss.Ct.App.2007).......... 6 iii

STATEMENT OF THE ISSUE I. WHETHER THE CONVICTION FOR BOATING UNDER THE INFLUENCE WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE? 1

STATEMENT OF THE CASE On the afternoon and early evening of August 26, 2012, Paxton Austin, a female companion, and other friends were boating and recreating on the shore of the Tombigbee River near the Clay-Lowndes County, Mississippi line. Luke Robinson, an acquaintance and Greg Bell, an off-duty state trooper, each in their respective boats, were boating with the Defendant that afternoon. Earlier in the afternoon, Luke Robinson served Paxton Austin no more than five "jello shots" containing "some" quantity of alcohol. All three boats headed south onto the main channel of the Tennessee-Tombigbee River, towards the river bridge. Upon approaching the bridge, Luke Robinson testified he suddenly saw a barge, jerked his boat to the right out of the way. Luke Robinson saw Mr. Austin also turn right, but he did not clear the path of the barge, and struck it. Greg Bell, who did not know the defendant before this day, also saw Paxton Austin attempt to turn right and avoid the boat, but was unable to do so. Mr. Bell, immediately turned to render aid. He dialed 911 and turned toward the wreck. A fellow off-duty trooper, Jimmy Thomas jumped to the water towards the wreck. Without exaggeration, Mr. Thomas rescued Mr. Austin's female companion from the damaged craft, likely saving her life. The female companion had several lacerations that bled profusely, Paxton Austin had no such major visible cuts, but was later diagnosed with broken ribs and a collapsed lung. Paxton Austin was observed attempting to escape the boat. An EMT, Ross, also jumped into the water to assist Mr. Paxton. It is clear from the testimony, that but for the actions of the off-duty law enforcement and other first responders, Paxton Austin and his female companion would have died or suffered grievous bodily injury. 2

SUMMARY OF THE ARGUMENT I. The evidence was sparse, indeterminate, conflicting and outside the norms of officer experience such that the State failed to prove its elements beyond a reasonable doubt and the verdict was against the overwhelming weight of the evidence. 4

I. Factual Background On the afternoon and early evening of August 26, 2012, Paxton Austin, a female companion, and other friends were boating and recreating on the shore of the Tombigbee River near the Clay-Lowndes County, Mississippi line. Luke Robinson, an acquaintance and Greg Bell, an off-duty state trooper, each in their respective boats, were boating with the Defendant that afternoon. Earlier in the afternoon, Luke Robinson served Paxton Austin no more than five "jello shots" containing "some" quantity of alcohol. All three boats headed south onto the main channel of the Tennessee-Tombigbee River, towards the river bridge. Upon approaching the bridge, Luke Robinson testified he suddenly saw a barge, jerked his boat to the right out of the way. Luke Robinson saw Mr. Austin also turn right, but he did not clear the path of the barge, and struck it. Greg Bell, who did not know the defendant before this day, also saw Paxton Austin attempt to turn right and avoid the boat, but was unable to do so. Mr. Bell, immediately turned to render aid. He dialed 911 and turned toward the wreck. A fellow off-duty trooper, Jimmy Thomas jumped to the water towards the wreck. Without exaggeration, Mr. Thomas rescued Mr. Austin's female companion from the damaged craft, likely saving her life. The female companion had several lacerations that bled profusely, Paxton Austin had no such major visible cuts, but was later diagnosed with broken ribs and a collapsed lung. Paxton Austin was observed attempting to escape the boat. An EMT, Ross, also jumped into the water to assist Mr. Paxton. It is clear from the testimony, that but for the actions of the off-duty law enforcement and other first responders, Paxton Austin and his female companion would have died or suffered grievous bodily injury. 5

Because a boating accident occurred, the Mississippi Department of Wildlife, Fisheries, and Parks were called to investigate. Darren Coggins and Matt Haney were the Wildlife, Fisheries and Parks were the officers summoned to the scene. Mr. Parks testified at trial, but informed the Court that Mr. Coggins would be unable to testify because he had died on December 23, 2012, from cancer. Officer Coggins was the party that swore the criminal affidavit against Paxton Austin. Paxton Austin was charged with operating a watercraft on the public waters of this state under the influence of intoxicating liquor. II. Argument I. WHETHER THE CONVICTION FOR BOATING UNDER THE INFLUENCE WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE? The Appellant and his companion were involved in a serious boating accident on August 26, 2012, on the Tombigbee River in Clay County, Mississippi. It is likely that, but for the actions of fellow boaters, off-duty and relaxing, whose training and instinct kicked in immediately, saved the Appellant and his companion from death or grievous injury. The question remains, however, based on the evidence presented, was, with the evidence submitted to the Court, Paxton Austin guilty of operating his boat while under the influence of intoxicating beverage beyond a reasonable doubt. Jones v. State, 958 So.2d 840, 843 (Miss.Ct.App.2007) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)) establishes the standard of review as, "When determining whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. Reversal is warranted only when we are convinced that the circuit court has abused its discretion and that allowing the verdict to stand would sanction an unconscionable injustice." Even with this high standard, Paxton Austin believes insufficient 6

evidence was offered, because the evidence consisted solely of some alcohol consumption some time in the approximate five hours preceding the accident, though the amounts were slight and indeterminate. Three members of the rescue parties smelled alcohol from Mr. Austin, his cheeks were flushed after having been in severe accident, some disorientation, again after having been in a severe accident, and the portable breath test that tested positive for alcohol. Finally, there was the accident itself. This the sum total of all the evidence incriminating Mr. Austin. Paxton does not believe that rises to the level sufficient to sustain a conviction. A summary of the incriminating points of the testimony are as follows: Luke Robinson, a friend of Paxton Austin, went to the Tombigbee River in Clay County on the afternoon of August 26, 2012, at approximately 2:00 P.M. (T. 10). Mr. Robinson had prepared "Jello shots", a mixture of Jello and vodka. (T. 10). Mr. Austin consumed no more than five of these shots. (T. 12). The shots were a small shot amount. (T. 12). While Mr. Robinson was driving his boat and Mr. Austin his, they each suddenly approached a barge. (T. 13). Mr Robinson "jerked over to the right to get out of the way". (T. 13). Mr. Austin was not as fortunate with his attempt to avoid the barge, and struck it. (T. 14). Mr. Robinson estimated that the accident occurred around 7:00 P.M. (T. 17). Greg Bell, an off-duty Mississippi Highway Patrol officer and former Game and Fish Officer, (T. 26), testified, that after training, "he could walk through Wal-Mart and tell when people are either on drugs, alcohol, or what they're on just by looking at them." (T. 29). He testified that the accident occurred around 6:30 P.M., also being present on the banks of the Tombigbee River in Clay County that day recreating with his friends on his own boat. (T. 28-30). After he and his boating companions heroically jumped into the water and onto the wreck to save Mr. Austin's and his female companion's lives, Bell observed disoriented behavior of Mr. Paxton, specifically over concern about insurance and trying to leave the rescue boat. (T. 36, 38). Mr. 7

Bell observed, upon arrival at the Tote and Float bar docking area, that Mr. Austin was in shock. (T. 39). As events evolved, a John Lepicier asked for a portable breath sample (T. 39). Mr. Austin complied and Trooper Bell observed a positive result for the presence of alcohol on that machine. (T. 40). Greg Bell further testified that he smelled alcohol coming from Mr. Austin's person and that, though uncertain, "thought" Mr. Austin has admitted to drinking that day. (T. 42-43). Ross Pickle, a network engineer, but a companion to Greg Bell on August 26, 2012, was next called to testify. (T. 47-48). He testified that he had seen Mr. Paxton with a beer in his hand that afternoon, perhaps a Bud Light, but unsure of the brand, but he had been drinking from it. (T. 48). He testified he was about fifteen feet away when he saw Mr. Paxton with the beer can in his hand (T. 52). William Knowles was called to testify. At the time of the accident, he was a DUI enforcement officer with the Clay County Sheriff's Department. (T. 54). He testified that the Tote and Float was a bar. (T. 56). His observations, in the parking area and other areas around and near the Tote and Float. (T. 57). In being close to Mr. Austin, he smelled intoxicating beverage, found Mr. Austin's eyes red, face flushed, and the odor was "pretty strong." (T. 59). Deputy Jon Lepicier of the Clay County Sheriff's Department was called next. He responded to the 911 call to the Tote and Float bar. (T. 72). He testified that Mr. Austin was distraught, and had a "smell of intoxicating beverage emitting from him while I was speaking with him." (T. 74). Deputy Lepicier said that Mr. Austin had a red face, talked a lot, and was upset about the accident. (T. 74). Deputy Lepicier conducted a preliminary breath test that Trooper Bell had testified to previously that had found a positive indication of alcohol. (T. 75). He did give his professional opinion that Mr. Austin was intoxicated (T. 76), but this was based solely upon slurred speech and the smell of intoxicating beverage. (T. 78, 81). 8

In summary, assuming the truth of the facts above, the Court only heard that the Defendant in the four to five hours before the boating accident, the Defendant consumed at most, five small Jell-O shots with an unknown concentration of vodka, and one beer. He struck a barge that two other boats just avoided. Though unknown to the witnesses at the time, he had suffered two broken ribs and a collapsed lung from the collision. He was disoriented, red-faced, in shock, tested positive for some quantity of alcohol on his breath, and smelled of an intoxicating beverage while being observed in the dock and parking area of a bar. While the bona fides and experience of the observers were excellent, their testimony never went beyond the facts described above. This is simply insufficient evidence to sustain a conviction for boating under the influence of an intoxicating beverage, and his conviction should be set aside. 9

CONCLUSION The State failed to all the elements charged and/or the verdict was against the overwhelming weight of the evidence. Therefore the conviction and sentence of the Circuit Court for boating under the influence should be reversed and a not guilty verdict rendered. This Court should set aside the Circuit Court's verdict and sentence against Paxton Austin and the matter remanded to the Circuit Court of Clay County for entry of a not guilty verdict. This the 23rd day of September, 2014. RESPECTFULLY SUBMITTED, PAXTON AUSTIN BY: /s/rodney A. Ray RODNEY A. RAY 301 5TH ST STE B P.O. BOX 1018 Columbus, MS 39703 MSB 8876 TEL # (662) 329-0110 10

CERTIFICATE OF SERVICE I, Rodney A. Ray, attorney for the Appellant, do hereby certify that on this day I electronically filed the foregoing Appellant's Principal Brief and Record Excerpts as an attachment thereto in the matter Paxton Austin (Appellant) v. State of Mississippi (Appellee), case number 2013-KM-02085-COA, for filing with the Clerk of the Supreme Court/Court of Appeals using the MEC system, which notified the following parties: John Henry Assistant Attorney General jhenr@ago.state.ms.us Michelle Easterling County Prosecuting Attorney! mde@esmhe.net The following party was served a copy of the foregoing by placing a copy in the firstclass, United States Mail, postage prepaid, because they are not a participant in the MEC System: Hon. Jim Hood Attorney General Mississippi P.O. Box 220 Jackson, MS 39205-0220! Hon. Lee J. Howard Circuit Court Judge P.O. Box 1679 Starkville, MS 39760 This the 23rd day of September, 2014 /s/rodney A. Ray RODNEY A. RAY! 11