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HARRELL v. STATE4/3/1998
burn the appellant suffered. Dr. Sapp testified that, although it would be unusual with the dose he recommended, this drug could have a mood-altering effect that would be compounded by alcohol.
The appellant asserts that the evidence, specifically Dr. Sapp's testimony and allegedly insufficient evidence that the appellant's intoxicated state was caused by alcohol, differs from the allegations in the complaint, which referred only to his being under the influence of alcohol; thus, he argues, there is a fatal variance between the charging instrument and the proof. The appellant is correct in arguing that " roof of a violation of one subsection will not support a conviction where the defendant is charged with violating a different subsection." Stone v. City of Huntsville, 656 So.2d 404, 413 (Ala.Cr.App.
1994). However, regardless of the evidence presented by the defense, the State clearly presented enough evidence to support a conviction for driving under the influence of alcohol.
Although the issue was not preserved for review, this Court faced a similar situation in Stone. Like the appellant in this case, the defendant in Stone had been charged with operating a vehicle under the influence of alcohol and had introduced evidence that he was under the combined influence of alcohol and a controlled substance. 656 So.2d at 412-14. The defendant argued that the trial judge's instruction to the jury stating that the prosecution did not have to prove that alcohol was the only substance that the defendant was under the influence of was error. Id. However, this Court, in dicta, emphasized that the prosecution had introduced sufficient evidence showing that the defendant was under the influence of alcohol and that only the defense had raised the issue of the combined influence of alcohol and a controlled substance:
" ad the prosecution introduced evidence that the appellant was under the 'combined influence of alcohol and a controlled substance,' it would have proved a violation of § 32-5A-191(a)(4), rather than a violation of § 32-5A-191(a)(2), and the jury instruction complained of would clearly have been error.
"In this case, however, it was the defense that introduced evidence tending to show that the appellant was under the 'combined influence of alcohol and a controlled substance' when Officer Willis stopped him. Here, as in State v. Nix, 535 So.2d 866, 868-69 (La. App. 1988), the appellant 'offer as a defense to the charge of driving under the [combined] influence of [alcohol and] prescription drugs.' To accept this proposition would permit any person charged with driving under the influence of alcohol to refuse to submit to a blood alcohol test and then to defeat the prosecution's case by claiming to have been, instead, under the combined influence of alcohol and a controlled substance. Such a position is untenable."
656 So.2d at 413.
In this case the prosecution presented sufficient evidence that the appellant was under the influence of alcohol so as to impair his ability to safely operate his vehicle. The appellant admitted that he had had "a few beers." Furthermore, Officer Dunn testified that he could smell alcohol on the appellant, that the appellant was staggering and could not pass field tests, and that, in his opinion based upon his training and prior experience with DUI cases, the appellant was under the influence of alcohol. The evidence raised by the defense that the appellant had been prescribed mood-altering medication three days before his arrest does not change the fact that the prosecution proved a violation of § 32-5A-191(a)(2). Therefore, there was no fatal material variance between the charging instrument and the ev
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