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United States of America v. Arvin Priestly

February 15, 2013

UNITED STATES OF AMERICA PLAINTIFF
v.
ARVIN PRIESTLY DEFENDANT



MEMORANDUM OPINION AND ORDER

After a trial before the Magistrate Judge at Fort Campbell Army Base on August 1, 2012, Defendant Arvin Priestly ("Priestly") was convicted of driving under the influence, in violation of KRS § 189A.010. Priestly now appeals that conviction, arguing that the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. (See Notice of Appeal, Docket Number ("DN") 1.) He has briefed his position and arguments. (Def.'s Br., DN 8.) The Government has responded. (Gov't Resp., DN 9.) The Defendant has not replied, and the time to do so has now expired. This matter is now ripe for adjudication. For the following reasons, the Defendant's conviction is AFFIRMED.

I.

This Court has jurisdiction to hear this appeal pursuant to 18 U.S.C. § 3402, which provides for an appeal of right from the judgment of a magistrate judge, and 18 U.S.C. § 3231, which vests the Court will jurisdiction over all federal crimes. The Magistrate Judge properly exercised jurisdiction under 18 U.S.C. § 3401 and Local Criminal Rule 5.1. Although the circumstances leading to this appeal occurred at Fort Campbell, a federal installation, the Magistrate Judge applied Kentucky's substantive motor vehicle law pursuant to the Assimilative Crimes Act, 18 U.S.C. § 13.

II.

Priestly challenges his conviction based on the sufficiency of the evidence presented at trial. When reviewing based on the sufficiency of the evidence, an appellate court should not "'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (quoting Woodby v. INS, 385 U.S. 276, 282 (1966)). Rather, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); United States v. Blakeny, 942 F.2d 1001, 1010 (6th Cir. 1991). It should be noted that "[a] defendant challenging the sufficiency of the evidence has a 'very heavy burden.'" United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007) (quoting United States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002)).

In determining whether the evidence was sufficient to sustain a conviction of the crime charged, the court does "'not weigh the evidence, assess the credibility of witnesses, or substitute [its] judgment for that of the jury.'" United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001) (quoting United States v. Wright, 16, F.3d 1429, 1440 (6th Cir. 1994)). Instead, after a defendant has been convicted, "the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319. In reviewing whether there was sufficient evidence to sustain a conviction, a court "must draw all available inferences and resolve all issues of credibility in favor of the [factfinder's] verdict." Salgado, 250 F.3d at 446 (citing United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998)). "Circumstantial evidence is entitled to the same weight as direct evidence in determining whether there is sufficient evidence to support a guilty verdict." United States v. Baydoun, 984 F.2d 175, 179 (6th Cir. 1993). "A judgment is reversed on insufficiency-of-the-evidence grounds 'only if [the] judgment is not supported by substantial and competent evidence upon the record as a whole.'" Gardner, 488 F.3d at 710 (quoting United States v. Barnett, 398 F.3d, 516, 522 (6th Cir. 2005)). "[I]n cases tried by the court, factual findings made by the trial judge stand unless determined to be so clearly erroneous as to justify overturning the conviction." Baydoun, 984 F.2d at 179.

III.

In the early morning hours of February 4, 2012, Priestly attempted to access Fort Campbell at Gate 7 on the Kentucky side of the Army base. (Trial Tr., DN 4, pp. 3:25-4:18, 6:8:11.) All vehicles entering the base are administratively stopped and their occupants must produce identification. (Id. at p. 4:23-25.) Additionally, every fifth vehicle is subject to an administrative search. (Id. at p. 4:13-21.)

On this particular occasion, gate guard Jimmy Mayes ("Mayes") was on duty at Gate 7 and stopped Priestly's vehicle. Prior to the stop Mayes did not observe Priestly speeding, swerving, or otherwise driving in an abnormal manner. (Id. at pp. 7:17-8-14.) Priestly was the only person in the vehicle at the time of the stop. (Id. at p. 6:5-7.) As Mayes checked Priestly's identification, he noticed Priestly's speech was slurred and his breath smelled of alcohol. (Id. at p. 4:21-22.) Because Priestly's car was one of the fifth vehicles through the gate, he was selected for the additional administrative search. He was asked to exit his car and open his trunk. (Id. at p. 5:3-8). As he did so, Mayes noticed that Priestly was disoriented. (Id.) Based on Priestly's disorientation and the smell of alcohol emanating from his person and the car, Mayes determined that the military police should be called to the scene. (Id. at p. 9:22-25.)

Military police officer Ricky Kimberlin ("Kimberlin") was the first officer to respond to Mayes's call. When he made contact with Priestly, Kimberlin could smell a strong odor of alcohol coming from the vehicle. (Id. at p. 13:15-21.) In an attempt to corroborate Mayes's observations, Kimberlin administered a simple finger test to Priestly, which is a preliminary sobriety test. (Id. at p. 14:7-11.) Although Priestly passed the initial test, Kimberlin removed him from his car in order to conduct a full field sobriety test ("FST"). (Id. at p. 14:9-11). Kimberlin could not immediately conduct the FST because his supporting officer, Joseph Riviera ("Riviera"), had yet to arrive. (Id. at p. 14:12-18.) While waiting for Riviera, Kimberlin noticed that Priestly's "eyes were glossy, and his pupils looked dilated." (Id. at p. 15:1.) Once Riviera arrived, Kimberlin administered the FST to Priestly.

Priestly's FST consisted of three parts. First, Priestly was given the "horizontal gaze nystagmus" ("HGN") test, which involves directing a suspect to follow an object, like a pen, with his eyes so that the administrator can observe his eye movements. (Id. at p. 16:6-16.) Priestly failed the HGN test. (Id. at pp. 19:4-9, 20:3-5.) Next, the "walk-and-turn" test was administered to Priestly. (Id. at p. 20:10-13.) This portion of the FST tests a subject's ability to follow directions and control his body. (Id. at p. 21:7-11.) Priestly failed the walk-and-turn test. (Id. at p. 23:18-19.) Finally, he was given the "one-legged stand" test. (Id. at p. 24:2.) This part of the FST also tests a suspect's ability to follow directions and physical control. (Id. at p. 24:3-8.) Priestly failed the one-legged stand test. (Id. at p. 25:4-5.) In all, he failed all portions of the FST administered by Kimberlin. (Id. at p. 25:17-20.)

After the initial FST was complete, Kimberlin's supervisor, Sergeant Ryan Fitzpatrick ("Fitzpatrick"), arrived on the scene. (Id. at pp. 25:25-26:5.) Kimberlin informed Fitzpatrick about the situation, and told him that, because of Priestly's height, there may have been some problem administering the HGN portion of the FST. (Id. at p. 26:15-21.) As a result, Fitzpatrick decided to given Priestly a second FST. (Id. at p. 27:12.) Priestly also failed all three parts of the second test. (Id. at p. 27:19-20.) After failing both tests, Priestly was detained and taken to a detention center on the base for processing. (Id. at pp. 27:23-25.) There, he refused to consent to a breathalyzer test that would have measured his blood alcohol content. (Id. at p. 28:6-7.)

III.

On appeal, Priestly attacks the sufficiency of the evidence described above on two primary grounds. First, he claims that most of the testimony given by Kimberlin, Riviera, and Fitzpatrick during the trial was not supported by documentary evidence. For example, Kimberlin testified on direct examination that Priestly had glossy eyes but admitted on cross-examination that he never included this observation in the police report he was required to complete regarding the incident. (Id. at p. 32:15-17.) Kimberlin also stated on cross-examination that Priestly admitted to consuming alcohol a few hours before the traffic stop, but neither Kimberlin nor Fitzpatrick actually recorded this fact in their reports. (Id. at pp. 34:21-35:23.) Finally, Kimberlin's report contains no mention that he smelled an odor of alcohol on Priestly. (Id. at pp. 35:24-36:2.) Also along the lines of documentary evidence, Priestly points to the fact that Riviera was unable to produce the police notes he took during the traffic stop. (Id. at pp. 53:11-54:5.) Apparently ...


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