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Graham v. State1/27/2004
time, and was not allowed to take anything by mouth during that time. Where a conflict existed in the evidence, it was the trial judge's function to determine the admissibility of the evidence not its weight. Byrd v. State , 154 Miss. 742, 750, 123 So. 867, 869 (1929). The judge performed his function and properly held the evidence to be admissible.
. Where the evidence is in conflict, it is the responsibility of the jury to determine the weight and credibility to be accorded witness testimony. Briggs v. State , 741 So. 2d 986 ( ) (Miss. Ct. App. 1999). In this case there existed a dispute as to the circumstances under which the intoxilyzer test was given to Graham. The jury found the testimony of Officer Peden to be credible on this question. This Court cannot say that was wrong.
. This issue is without merit.
IV. Whether the verdict was against the overwhelming weight of the evidence.
. Graham contends that reasonable men could not have found beyond a reasonable doubt that he was guilty of DUI, and therefore the verdict was against the overwhelming weight of the evidence.
. In determining whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and 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. Ford v. State , 753 So. 2d 489 ( ) (Miss. Ct. App. 1999).
. The State presented evidence that when stopped at the roadblock, Graham had a strong odor of alcohol on his breath. Peden indicated that Graham's speech was slurred and he had trouble walking to the back of the vehicle. Graham was taken to the police station, where a breath alcohol test showed a blood alcohol level of .188. Additionally, while completing the booking process, Graham passed out.
. In looking at the above evidence, we find that reasonable-minded jurors had substantial credible evidence, upon which they could have found Graham guilty beyond a reasonable doubt of DUI.
. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF DUI-THIRD OR SUBSEQUENT OFFENSE AND SENTENCE OF TWO AND ONE-HALF YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $2,000, WITH ONE HUNDRED TWENTY DAYS OF THIS SENTENCE TO BE SERVED IN THE NESHOBA COUNTY JAIL AND REMAINDER OF THE SENTENCE TO BE SERVED UNDER HOUSE ARREST PURSUANT TO REGULATIONS WITH THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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