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Ward v. State8/24/2004
is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice." Doolie v. State, 856 So.2d 669, 671 ( 7) (Miss.Ct.App.2003).
30. The State's evidence consisted of testimony from Officer Word and Deputy Sallis. Officer Word is a trained DUI officer who was certified to administer all of the tests that Ward received. Officer Word testified that Ward's eyes were bloodshot and his breath smelled like alcohol. Ward admitted to drinking liquor and beer on the night in question. He failed the horizontal gaze-nystagmus field test and the portable breath Intoxilizer test. Ward also failed the two field tests and the Intoxilizer test that were conducted at the Sheriff's Department. As a result, it seems clear that Ward was under the influence of alcohol.
31. The critical issue is whether Ward was driving the Jeep as it approached the roadblock. Ward argues that he was not driving the Jeep that night and all of his witnesses attempt to corroborate this point. However, "the jury is the judge of the weight and credibility of testimony and *323 is free to accept or reject all or some of the testimony given by each witness." Id. Officer Word testified that Ward and his brother switched places. In addition, his testimony was corroborated by Deputy Sallis and an unnamed eyewitness. This act of switching drivers was an indication to the jury that Ward was aware of his condition and sought to conceal it from the police. Any claim that Ward's brother was driving the Jeep at all pertinent times that night was properly considered and resolved by the jury. Therefore, this Court cannot hold that an unconscionable injustice would occur by allowing the verdict to stand.
32. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF FELONY DUI AS AN HABITUAL OFFENDER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
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