IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-KM-00643-COA
STEPHEN BORSI A/K/A STEPHEN ANTHONY APPELLANT BORSI
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/07/2021 TRIAL JUDGE: HON. DEWEY KEY ARTHUR COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: STEPHEN BORSI (PRO SE) ATTORNEY FOR APPELLEE: JOHN SHIRLEY NATURE OF THE CASE: CRIMINAL - MISDEMEANOR DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 05/24/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Stephen Borsi was arrested during a roadblock and, after a bench trial, found guilty
of driving under the influence (DUI) in violation of Mississippi Code Annotated section 63-
11-30(1)(c) (Supp. 2017). Borsi appeals, arguing that (1) the roadblock was unregulated and
violated his Fourth Amendment rights; (2) his Miranda rights were violated; (3) law
enforcement officers should not have been allowed to provide opinions about his impairment
from smoking marijuana; (4) there was no finding beyond a reasonable doubt that he was
impaired; (5) he was improperly assessed an $85 transfer fee by the Rankin County Circuit
Clerk; (6) he had a prescription for the drug and had only used it (legally) in Florida; (7) he had used a product containing CBD, not THC; (8) certain testimony regarding his alleged
impairment should have been struck from the record; (9) there was no proof of intoxication;
(10) County Court Judge Kent McDaniel improperly based Borsi’s DUI conviction on Beal
v. State, 958 So. 2d 254 (Miss. Ct. App. 2007); and (11) DUIs should not be given to people
taking prescribed substances in compliance with their prescriptions. We hold that Borsi’s
rights under the Fourth Amendment and Miranda were not violated, and the trial court’s
findings are supported by substantial credible evidence. Accordingly, we affirm Borsi’s
conviction; however, we reverse and render judgment regarding Borsi’s claim related to the
improper transfer fee.
FACTS AND PROCEDURAL HISTORY
¶2. On the afternoon of April 13, 2019, Borsi visited Shawana Winstead at her home.
Winstead testified that Borsi did not drink alcoholic beverages or smoke marijuana while
they were together, nor had she ever seen him under the influence of either substance. Later,
Borsi picked up his friend Christopher Hathaway from work, and the two returned to a
campground where Borsi was living. The men later left the campground and eventually
traveled west on Highway 80 in Rankin County.
¶3. That evening, the Mississippi Highway Patrol (MHP) set up a highway safety
checkpoint on Highway 80 in Rankin County at the direction of the enforcement supervisor
Trooper Willard Holifield. He would later testify that the purpose of the roadblock was to
“find those that are driving without licenses, suspended license[s], no license, insurance, seat
2 belts[,]” as well as outstanding warrants. The MHP’s general practice was to stop all
vehicles that passed through the checkpoint unless traffic became too heavy. There is no
indication in the record that the MHP deviated from its general practice on the night in
question.
¶4. At the checkpoint, Trooper Holifield was standing at the road’s centerline when he
encountered Borsi and Hathaway, who were traveling in the westbound lane on Highway 80.
Borsi drove up and rolled his window down as Trooper Holifield approached the vehicle to
ask for his driver’s license. “Immediately, while [Borsi] was producing the driver’s license,
[Holifield] smelled the presence of burnt marijuana emitting from [Borsi’s] vehicle.”
Trooper Holifield asked Borsi to pull over to the side for questioning. Trooper Holifield then
began talking to Borsi about the marijuana he smelled. Borsi admitted that he had been
smoking marijuana about two hours earlier at his campsite but later testified that he felt
threatened to “tell the truth” or he would be going to jail. Trooper Holifield never testified
that he threatened Borsi, and Trooper Ivana Williams, another officer, testified she did not
threaten Borsi. In contrast to Borsi’s preceding statement, Borsi also testified that he did not
believe he would be arrested or jailed because he was obviously sober. It is uncontested that
Trooper Holifield had not advised Borsi of his Miranda rights before this exchange took
place.
¶5. Trooper Holifield then asked Trooper Williams to take over so that he could continue
supervising the roadblock. Trooper Williams administered a field sobriety test, which Borsi
3 failed. Trooper Williams testified that Borsi admitted to having smoked marijuana. During
her investigation of Borsi, Trooper Williams was called to the scene of an accident, so
Trooper Holifield returned to continue the investigation of Borsi.
¶6. At this point, Trooper Holifield questioned Borsi and Hathaway again in order to see
if their original story changed. Trooper Holifield testified that Borsi admitted he had bought
$50 worth of marijuana, and he and Hathaway both admitted to smoking it at Borsi’s camper
about two hours prior to being stopped at the checkpoint. In the arrest report, Trooper
Holifield noted that Borsi had bloodshot eyes and that his “pupils were kind of wide”; Borsi
“was kind of sluggish,” and his “speech was a little slow,” and “you could tell he was
obviously unstable.” Borsi was allowed to call his friend Shawana Winstead (whom he had
visited earlier that day) to come to the roadblock to retrieve his car. Trooper Holifield then
arrested Borsi and placed him in his patrol car. It is unclear from the record exactly when
Trooper Holifield collected a partially burned marijuana cigarette from underneath Borsi’s
front passenger seat. Borsi gave permission for the collection of a urine sample just over half
an hour after the initial stop.
¶7. On August 12, 2019, Borsi pled no contest and was convicted of violating Mississippi
Code Annotated subsections 63-l-30(l)(b) and (c). The Rankin County Justice Court imposed
fines, a suspended 48-hour sentence, and required that Borsi attend certain educational
classes. Borsi appealed the DUI conviction to the County Court of Rankin County, but he
failed to appeal the possession conviction. He later was granted permission to file an out-of-
4 time appeal of the possession conviction.
¶8. Prior to the bench trial on February 12, 2020, the State agreed to nolle prosequi the
possession charge.1 Borsi moved to dismiss the DUI charge based on alleged discovery
violations and filed a motion to suppress for various Miranda violations. The trial court
denied these motions.2 At trial, the State called Archie Nichols and David Lockley—both
from the Mississippi Crime Laboratory—who were accepted as experts in the fields of drug
identification and toxicology, respectively. Nichols testified that the partially burned
cigarette found in Borsi’s car contained marijuana. Lockley testified that Borsi’s urine was
positive for “11 NOR-9 carboxy Delta 9 THC.” He further testified that cannabidiol (CBD)
and tetrahydrocannabinol (THC) are different compounds and that the test verified Borsi had
previously used marijuana, but it did not pinpoint when he had been exposed to the drug.
Lockley also testified that the test did not indicate how much marijuana was in Borsi’s
system, nor whether Borsi was impaired. Borsi did not present any experts to refute the
testimony of either Nichols or Lockley. After the State presented its evidence, the court
denied Borsi’s motion for a directed verdict.
¶9. Borsi testified that he initially told Trooper Holifield he had been smoking marijuana.
But at some point after his arrest, Borsi’s version of the events changed. He became adamant
1 Hathaway pled guilty to possession of the marijuana cigarette found in the car. 2 There was no appeal pertaining to the alleged discovery violations, nor was there a specific appeal of the denial of the motion to suppress, but possible Miranda violations were mentioned in the briefing and are addressed here.
5 that he had not smoked marijuana (despite having made much of the fact that he had a
prescription for the drug) since he was in Florida a week earlier, at which time he had bought
$50 worth of a product containing CBD. Borsi said that he only admitted to smoking
marijuana on the day of his arrest because he did not distinguish between the CBD that he
had purchased and marijuana. He also said he felt threatened by Trooper Holifield and that
he “had never heard of a weed DUI.” Borsi denied knowing about the partially smoked
marijuana cigarette that was found in his car. He admitted that Hathaway had rolled a joint
in the car, but Borsi said it was CBD. Borsi’s testimony about how much of this joint he
smoked is conflicting: at trial he testified that he only had one puff; but in his briefing to the
circuit court and this Court, Borsi says “they smoked [the CBD joint,]” and it “was
completely consumed” before they got to the roadblock. Winstead, Borsi’s only witness,
testified that she had never seen Borsi under the influence and that he was not under the
influence at the time of his arrest.
¶10. At the conclusion of the trial, Judge McDaniel found Borsi guilty of violating section
63-11-30(1)(c) and sentenced him from the bench. Borsi was assessed $600 for the two
laboratory reports, fined $1,000 (with $500 suspended), and assessed another $50 for the
DUI conviction. Borsi was allowed ninety days to pay the assessments and fine. He was
sentenced to forty-eight hours of confinement, less the time he had already served,
conditioned on his prompt payment of the assessments and fine. Borsi also was required to
undergo a drug assessment and submit to three months of supervised probation by a company
6 named Court Watch. In addition, Borsi was ordered to complete the Mississippi Alcohol
Safety Education Program (MASEP) within 180 days of sentencing. Finally, Borsi’s driver’s
license was suspended for one year. When the final judgment was entered later that day, it
included an additional three months of unsupervised probation following the three months
of supervised probation.
¶11. Borsi appealed to the Rankin County Circuit Court. In addition to ordinary costs of
preparing the record on appeal, he paid a cash appearance bond in the amount of $1,000, a
bond fee of $20, and what is listed in the record on appeal as a “Circuit Court Transfer Fee”
in the amount of $85. On May 7, 2021, the circuit court affirmed the conviction and
remanded the case to the county court for the execution of the sentence. Borsi appealed to
the Supreme Court, which assigned the case to this Court, making the arguments noted in
paragraph 1 above.
STANDARD OF REVIEW
¶12. “The standard of review of a judgment entered following a bench trial is well-settled.”
City of Jackson v. Presley, 40 So. 3d 520, 522 (¶9) (Miss. 2010). A county court or circuit
judge sitting without a jury “is entitled to the same deference accorded to a chancellor, that
is, we will uphold the trial court’s findings of fact, so long as they are supported by
‘substantial, credible, and reasonable evidence.’” Id. (citing City of Jackson v. Brister, 838
So. 2d 274, 277-78 (¶13) (Miss. 2003)). We apply de novo review to challenges to
judgments on constitutional grounds. Sellers v. State, 323 So. 3d 1111, 1115 (¶13) (Miss.
7 Ct. App. 2021); see Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (¶11) (Miss. 1999).
DISCUSSION
I. Whether the roadblock was unregulated or violated Borsi’s Fourth Amendment rights.
¶13. Borsi alleges that law enforcement had no probable cause or reasonable suspicion to
stop his vehicle on the night he was arrested. Borsi further alleges that his Fourth
Amendment rights were violated when he was stopped and detained by the MHP, during
which time several incriminating statements were elicited from him, a urine sample was
taken, and an alleged controlled substance was located in his car.
¶14. We hold that the State’s interest in conducting a roadblock with the primary purpose
of checking driver’s licenses and insurance cards substantially outweighed the minimal
intrusion of Borsi’s individual liberty, and the roadblock did not violate the Fourth
Amendment or the search-and-seizure provision of the State constitution. McLendon v. State,
945 So. 2d 372, 382 (¶25) (Miss. 2006), cert. denied, 551 U.S. 1145 (2007). The roadblock
served public concerns: officers ultimately seized Borsi while he was driving under the
influence where MHP troopers consistently and indiscriminately stopped every vehicle at the
roadblock, and Borsi was not subjected to a random stop or an unbridled officer’s discretion.
Id. at 381-82 (¶24); see also Briggs v. State, 741 So. 2d 986, 989-90 (¶¶8, 10) (Miss. Ct. App.
1999) (declining to find that “a roadblock intended principally to detect unlicensed drivers
or improperly registered and uninspected vehicles” was an “unconstitutional invasion [] of
the personal security from unreasonable seizure afforded motorists under the Fourth
8 Amendment”).
¶15. Borsi admits that “licensing and registration requirements are fundamental to any
state’s highway safety program[,]” but he questioned the MHP’s authority to set up the
roadblock. Trooper Holifield’s testimony that as an enforcement supervisor, he had the
authority to approve the details of a checkpoint—as he did on April 13, 2019—was unrefuted
at trial. Trooper Holifield testified that the purpose of the roadblock was to “find those that
are driving without licenses, suspended license[s], no license, insurance, seat belts[,]” as well
as outstanding warrants. We find this reason to be appropriate for a roadblock. Additionally,
there was testimony that it was the general practice of the MHP to stop all cars that passed
through the checkpoint unless traffic became too heavy. There is no indication in the record
that the MHP deviated from its general practice on the night in question. The decision of the
circuit court is affirmed on this issue.
II. Whether Borsi’s Miranda rights were violated.
¶16. Borsi also maintains that he was subjected to custodial interrogation in violation of
his Miranda rights. Borsi has provided a loose argument at best, and the only authority he
cites in support is the Fourth Amendment and a quotation made by his trial counsel that
references two cases (without citations). Mississippi Rule of Appellate Procedure 28(a)(7)
requires that the argument section of an appellant’s brief “contain the contentions of
appellant with respect to the issues presented, and the reasons for those contentions, with
citations to the authorities, statutes, and parts of the record relied on.” This Court has
9 consistently held that the “[f]ailure to cite any authority is a procedural bar, and [we are]
under no obligation to consider the assignment.” Taylor v. Kennedy, 914 So. 2d 1260, 1262
(¶4) (Miss. Ct. App. 2005) (citations omitted); see also Jefferson v. State, 138 So. 3d 263,
265 (¶9) (Miss. Ct. App. 2014) (holding that “[t]he appellant must affirmatively demonstrate
error in the court below, and failure to do so waives an issue on appeal”). Because Borsi has
failed to supply any legal authority on this issue, we are not required to address this
assignment of error. But given the importance of this fundamental right, we will address this
issue.
¶17. It is unclear exactly when Trooper Holifield read or gave Borsi his Miranda rights.
Trooper Holifield stated that he did not do so immediately after Borsi was stopped at the
roadblock, nor did he do so at the time of the arrest. Trooper Holifield agreed with defense
counsel at trial that Miranda warnings were given at “the very end of the whole deal.”
Ruling from the bench, the trial judge took all arguments pertaining to the timing of the
Miranda warning into account, stating:
[O]ur Supreme Court and Court of Appeals both had multiple opportunities to address things like roadblocks and have adamantly declined to do that. They’ve also had the opportunity to say that Miranda attaches as soon as the blue lights come on; they have not done that. In fact, they specifically allow for a reasonable period for the officer to investigate, resolve a circumstance that he’s confronted with or she is confronted with. So there’s no Miranda violation in anything I heard today. Maybe toward the end the time period was going too long, but he had already—the cat was out of the bag. He had already said I’ve been smoking dope. So anything that happened after that was not—was harmless to their case against him[.]
¶18. “Whether [Borsi’s] Miranda rights were violated depends on whether he was in
10 custody and being interrogated” at the time the alleged incriminating statement was made.
Greenlee v. State, 725 So. 2d 816, 825 (¶23) (Miss. 1998). “A person’s Miranda rights are
not triggered by general on the scene questioning and/or any voluntary statement.” Id.;
accord Millsap v. State, 767 So. 2d 286, 289-90 (¶¶7-12) (Miss. Ct. App. 2000) (holding a
traffic stop alone is not an arrest or custodial interrogation requiring Miranda warnings).
“Miranda warnings are applicable to custodial interrogation, that is, questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom in any significant way.” In re Wilder, 347 So. 2d 520, 521 (Miss. 1977).
While it appears that Borsi’s stop may have turned custodial prior to his arrest, his initial
statement that he had smoked marijuana two hours before he was stopped occurred in the
first moments of the investigation of the stop, and no Miranda warnings were required at that
point. The decision of the circuit court is affirmed on this issue.
III. & IV. Whether lay opinions about Borsi’s alleged marijuana use should have been allowed, and whether the presence of marijuana metabolites was insufficient to find Borsi guilty beyond a reasonable doubt.3
¶19. Borsi was convicted of violating Mississippi Code Annotated section 63-11-30(1)(c),
which states that it is illegal for a person to drive a car while “under the influence of any drug
or controlled substance, the possession of which is unlawful under the Mississippi Controlled
Substances Law[.]” Borsi argues that no evidence proved he was under the influence of, or
3 We address Borsi’s third and fourth arguments collectively.
11 impaired by, marijuana at the time he was stopped. His arguments (slightly reframed) are
that the trial court improperly found him impaired because of marijuana exposure evinced
by Troopers Holifield’s and Williams’ lay opinion testimony, and the presence of marijuana
metabolite in his urine did not establish impairment beyond a reasonable doubt.
A. Testimony of Troopers Holifield and Williams
¶20. It is undisputed that Borsi admitted to Troopers Holifield and Williams that he had
smoked marijuana a couple of hours before he encountered the roadblock. Borsi voluntarily
agreed to submit a urine sample for analysis, which Trooper Holifield turned over to the
Mississippi Crime Laboratory. At trial, Troopers Holifield and Williams were allowed to
testify, given their experience as law enforcement officers, that Borsi was under the influence
of marijuana based on their interactions with and observations of him. When Borsi rolled
his window down at the roadblock Trooper Holifield smelled marijuana. Furthermore,
Trooper Holifield noted Borsi’s bloodshot eyes and testified his “pupils were kind of wide”;
Borsi “was kind of sluggish,” his “speech was a little slow,” and “you could tell he was
obviously unstable.” Trooper Holifield testified that he had “arrested hundreds and hundreds
of DUI people under the influence of marijuana and alcohol.” And on the night in question,
“[he] felt that [Borsi] was under the influence of marijuana . . . .” Trooper Williams said
Borsi’s eyes were red and “glazed over.”
¶21. Borsi argues that there is no known correlation between red eyes and “being too
impaired to drive due to THC intoxication.” He also argues that the field sobriety tests that
12 were administered (the horizontal gaze nystagmus test (HGN) and the one-leg stand) have
not been “validated for marijuana.” Additionally, Borsi maintains that the trial testimony of
Trooper Holifield and Trooper Williams about his eyes, the field sobriety testing, and their
conclusions about his inability to drive constituted impermissible lay opinions.
¶22. In Graves v. State, 761 So. 2d 950, 954 (¶9) (Miss. Ct. App. 2000), this Court
affirmed a trial court’s decision to allow a police officer to give lay opinion testimony about
administering the HGN test to a defendant because the testimony was used to show the
existence of probable cause (instead of being relied on as scientific evidence to prove
intoxication or impairment). Similarly in Christian v. State, 859 So. 2d 1068, 1071 (¶5)
(Miss. Ct. App. 2003), we affirmed a trial court’s admission of opinion testimony of officers
as to whether a defendant was under the influence, without officers being tendered as
experts. We held that the officers did not have to be tendered as experts to testify as to their
personal observations of the defendant under Rule 701 of the Mississippi Rules of Evidence.
Id. at (¶10). And Rules 701 and 704 allowed “the officers the ability to testify to opinions
and inferences, even on ultimate issues, as long as opinions [were] otherwise admissible,
. . . were rationally based on the perceptions of the officers, helpful to the trier of fact, and
not based on scientific knowledge.” Id. Although Graves and Christian concern alcohol-
based intoxication, in Holloman v. State, 820 So. 2d 52, 58-59 (¶20) (Miss. Ct. App. 2002),
we saw no reason to distinguish between the permissible evidence in situations involving
alcohol from those involving illegal narcotics.
13 ¶23. Neither of the troopers testified as experts, although they both discussed their
specialized training regarding DUIs and the types of field sobriety tests Borsi was given.
Over objections from Borsi, the trial court allowed Troopers Holifield and Williams to testify
to their physical observations of Borsi. The trial judge further stated that he was not using
the troopers’ testimony about the testing to determine whether Borsi was intoxicated, only
“to determine if there was probable cause to take him in.” As discussed above, this ruling
is in accord with Mississippi law. The trial court did not err in allowing the testimony of
Troopers Holifield and Williams.
B. Testimony of Archie Nichols and David Lockley
¶24. Archie Nichols and David Lockley of the Mississippi Crime Laboratory testified as
experts in the fields of drug identification and toxicology, respectively. Nichols testified that
the partially burned cigarette found in Borsi’s car contained marijuana. When asked by the
court if “the fingerprint for CBD is distinguishable from the fingerprint for THC,” Nichols
answered in the affirmative. Lockley testified about the results of the tests conducted on
Borsi’s urine sample. He said that “CBD and THC are two completely different compounds,
and they break down in different ways into different metabolites,” so a sample containing
CBD would not test positive for 11-NOR-9 carboxy Delta 9 THC. Lockley explained that
initially an immunoassay test was performed on the sample, and when it came back
indicating that cannabinoids might be present, a confirmation test was done, which showed
positive results for 11-NOR-9 carboxy Delta 9 THC. Upon questioning by Borsi, Lockley
14 testified that multiple techniques could be used to confirm the immunoassay test results, but
he did not believe one to be “more accurate, [or] more reliable” than the one he used.
Lockley also stated that the test verified that Borsi had previously used marijuana, but it did
not pinpoint when he had been exposed to the drug, how much marijuana was in Borsi’s
system, or whether Borsi was impaired. Borsi did not present any experts to refute either
Nichols’ or Lockley’s testimony.
¶25. Borsi does not challenge the qualifications of the State’s experts; instead he challenges
the trial court’s application of the test results to the instant facts, arguing that because the
tests were not indicative of when he used marijuana or its effects on him at the time of the
roadblock, there was no evidence to support a finding of guilt of DUI beyond a reasonable
doubt. It is a long-standing rule that in a bench trial, “a judge may place whatever weight he
or she chooses on expert testimony . . . .” Univ. of Miss. Med. Ctr. v. Pounders, 970 So. 2d
141, 147 (¶26) (Miss. 2007). We see no reason to disturb the finding here.
¶26. Borsi also takes issue with the fact that a urine sample was taken instead of a blood
sample. The Mississippi Crime Laboratory can test “a person’s blood, breath, urine or other
bodily substance for the determination of the presence of alcohol or any other substance
which may impair a person's mental or physical ability.” Miss. Code Ann. § 63-11-3 (Rev.
2013). Additionally, this argument carries no weight as this Court has affirmed DUI
convictions where neither blood testing nor urine testing was done. Beal v. State, 958 So.
2d 254, 256 (¶¶3, 7) (Miss. Ct. App. 2007). The trial court did not err in relying on this
15 testimony.
C. Testimony of Stephen Borsi
¶27. Borsi maintains there was insufficient proof that he was under the influence of, or
impaired by, marijuana at the time he was stopped. The statute, in relevant part, states, “It
is unlawful for a person to drive or otherwise operate a vehicle within this state if the person
. . . [i]s under the influence of any drug or controlled substance, the possession of which is
unlawful under the Mississippi Controlled Substances Law[.]” Miss. Code Ann. § 63-11-
30(1)(c).
¶28. At trial, Borsi again stated, “I was not under the influence of any kind of marijuana
other than CBD and I had only taken one hit of that, and I would not even consider it a full
hit. I was not impaired.” He argues that his capacity for clarity and control was not
diminished and that he was not too impaired to drive when he encountered the roadblock.
Borsi misunderstands what the State was required to prove under the statute—not his level
of impairment, but whether he was under the influence. In Heidelberg v. State, 976 So. 2d
948, 950-51 (¶¶13, 14) (Miss. Ct. App. 2007), Heidelberg was convicted under section 63-
11-30(1)(a), which makes it unlawful for a person to drive “under the influence of
intoxicating liquor.” We held that a conviction for driving under influence did not require
proof that alcohol impaired a defendant’s ability to drive—only that he was driving a motor
vehicle while he was under influence of intoxicating liquor. Id. To compare, Borsi was
convicted under section 63-11-30(1)(c), which makes it unlawful for a person to drive “under
16 the influence of any drug or controlled substance.” Given the similar wording of these
sections of the statute, we do not find that a different test should be applied.
¶29. Beal, 958 So. 2d at 256 (¶7), was a case involving a controlled-substance DUI.
Similar to Borsi’s case, in Beal the officer smelled marijuana coming from Beal’s vehicle,
Beal admitted he had smoked marijuana before being pulled over, and the officer noted that
Beal’s eyes “were bloodshot, red and very glazy.” Id. at 255-56 (¶¶2-3). In addition, the
officer saw “a green leafy substance that appeared to be marijuana on Beal’s clothing.” Id.
at 255 (¶2). This Court held that this was sufficient evidence to find that Beal was “under
the influence when he was stopped.” Id. at 257 (¶9).
¶30. Borsi also says the trial court erred by discounting the testimony of Winstead, who
testified that Borsi was coherent and able to give her clear directions when he called to ask
her to pick up his car at the time of his arrest. Winstead further testified that she had no
reason to believe he was impaired that evening. However, she also stated that she had never
seen Borsi under the influence of drugs or alcohol, and she admitted that she did not know
what Borsi would look like or act like if he had been smoking marijuana. In his ruling, the
trial judge specifically stated, “[Winstead] was not with him at a time that’s relevant to
anything in this case and she’s just never seen him smoke marijuana.” We find that the trial
court considered Winstead’s testimony and found it unhelpful in this instance.
¶31. “It [is] within the [fact-finder’s] province to draw reasonable inferences from the
evidence based on [his] experience and common sense.” Broomfield v. State, 878 So. 2d
17 207, 215 (¶30) (Miss. Ct. App. 2004). Borsi admits as much, stating, “[P]roof [of
impairment] is going to turn on the testimony of the defendant, police officers, and any other
witnesses. The trial court . . . found the testimony of Holifield and Williams to be credible.”
The trial court did not find Winstead’s testimony unreliable; rather, it was found to be
irrelevant. The trial court found it compelling that Borsi admitted to smoking marijuana and
that there was marijuana found in his car. In this instance, the trial court recognized that the
intoxication standard for alcohol (.08 percent) has not been similarly specified for marijuana
and went on to explain that there is a low level of proof needed to prove that someone is
under the influence of a controlled substance. The trial court took into account the testimony
of Nichols and Lockley, noting “[t]his case is far more powerful than that one[, Beal,]
because the State here actually went to the proof of checking his urine and wallah. It had the
active ingredient in marijuana in it.” Looking at the witnesses who testified and the evidence
presented at trial, a fact-finder could reasonably determine that Borsi had been driving his
car while under the influence of marijuana.
V. Whether Borsi was improperly assessed an $85 transfer fee by the Rankin County Circuit Clerk.
¶32. On August 21, 2019, when Borsi paid the necessary fees to appeal from justice court
to county court, he was charged an $85 “Clerk’s Fee, Private” by the circuit clerk. On
November 20, 2019, when Borsi appealed the possession charge to county court, he was
again assessed fees including an $85 “Clerk’s Fee, Private” by the circuit clerk. On March
12, 2020, as part of the appeal process from county court to circuit court, Borsi was charged
18 an $85 “Circuit Court Transfer Fee.” Borsi argued that when he appealed from county court
to circuit court he was erroneously assessed a second $85 filing fee by the Rankin County
Circuit Clerk. The circuit court denied relief on this claim.
¶33. In support of his argument, Borsi relies on the following portion of Mississippi Code
Annotated section 25-7-13(1)(a) (Supp. 2019):
(1) The clerks of the circuit court shall charge the following fees: (a) Docketing, filing, marking and registering each complaint, petition and indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 85.00[.] The fee set forth in this paragraph shall be the total fee for all services performed by the clerk up to and including entry of judgment with respect to each complaint, petition or indictment, including all answers, claims, orders, continuances and other papers filed therein, issuing each writ, summons, subpoena or other such instruments, swearing witnesses, taking and recording bonds and pleas, and recording judgments, orders, fiats and certificates . . . .
¶34. Borsi claims that he was only overcharged once, but a review of the record shows that
Borsi was actually assessed $85 on three occasions. As indicated above, two were labeled
as a “Clerk’s Fee, Private” and the other was labeled as a “Circuit Court Transfer Fee.” The
circuit clerk also serves as the clerk of the county court and is charged with keeping “[t]he
dockets, minutes, and records of the county court . . . , so far as is practicable, in the same
manner as are those of the circuit court as provided by statute and the Mississippi Rules of
Civil Procedure.” Miss. Code Ann. § 9-9-29 (Rev. 2019). Notwithstanding the fact that the
fee entitled “Clerk’s Fee, Private” is not one of the allowable fees enumerated in section 25-
7-13, the applicable line of cases in Mississippi does not allow circuit clerks to charge fees
that are not allowed under section 25-7-13. See Staples v. Blue Cross & Blue Shield of Miss.
19 Inc., 585 So. 2d 747, 749-50 (Miss. 1991). It is unclear from the record why the Rankin
County Circuit Clerk charged Mr. Borsi $85 on three occasions. While it is apparent to this
Court that there should be more transparency regarding the nature and purpose of the fees
assessed by the circuit clerk’s office, we are only charged with the review of the $85 fee
assessed by the circuit clerk when Mr. Borsi appealed from county court to circuit court.
This fee is prohibited by Staples. Id. We reverse the circuit court’s finding regarding the $85
fee and render judgment in Borsi’s favor on this specific matter.
VI. Whether Borsi’s new arguments are properly before the court.
¶35. Borsi raises an additional six arguments for the first time on appeal:
1. Whether Borsi’s conviction should be reversed because he had a prescription for the drug and had only used it (legally) in Florida.
2. Whether Borsi had used a product containing (allegedly illegal) CBD, not THC.
3. Whether testimony regarding Borsi’s alleged impairment should have been struck from the record because he was allowed to move his car from one side of the road to the other.
4. Whether there was proof of intoxication.
5. Whether Judge McDaniel improperly based Borsi’s DUI conviction on Beal v. State.
6. Whether DUIs should be given to people taking prescribed substances in compliance with their prescriptions.
¶36. The latter two arguments were not mentioned until Borsi’s reply brief. We do “not
consider issues raised for the first time on appeal.” Anderson v. LaVere, 136 So. 3d 404, 410
20 (¶27) (Miss. 2014). Regarding the other arguments, we do not hold trial courts in error on
issues not presented to them for consideration. Davis v. Guido, 308 So. 3d 874, 882 (¶33)
(Miss. Ct. App. 2020). “Precedent mandates that this Court not entertain arguments made
for the first time on appeal as the case must be decided on the facts contained in the record
and not on assertions in the briefs.” Chantey Music Pub. Inc. v. Malaco Inc., 915 So. 2d
1052, 1060 (¶28) (Miss. 2005) (citing Parker v. Miss. Game & Fish Comm’n, 555 So. 2d
725, 730 (Miss. 1989)). Because Borsi failed to set forth these arguments at trial, he is
barred from raising them on appeal.
¶37. Additionally, we note that neither Borsi’s brief nor his reply brief set forth any
authority in support of his new arguments. The Mississippi Rules of Appellate Procedure
require that the argument section of an appellant’s brief “contain the contentions of appellant
with respect to the issues presented, and the reasons for those contentions, with citations to
the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(7). It is
well-settled law that we do not decide cases based upon unsupported representations made
by the parties in their briefs. See Magee v. Transcontinental Gas Pipe Line Corp., 551 So.
2d 182, 186 (Miss. 1989). Borsi’s arguments are clearly not the type contemplated by Rule
28(a)(7). This Court has consistently held that the “[f]ailure to cite any authority is a
procedural bar, and [a reviewing court] is under no obligation to consider the assignment.”
Taylor v. Kennedy, 914 So. 2d 1260, 1262 (¶4) (Miss. Ct. App. 2005) (citations omitted);
accord Jefferson v. State, 138 So. 3d 263, 265 (¶¶8-9) (Miss. Ct. App. 2014) (holding that
21 “[t]he appellant must affirmatively demonstrate error in the court below, and failure to do so
waives an issue on appeal”). Because Borsi has failed to supply any legal authority on these
issues, we decline to address these assignments of error.
CONCLUSION
¶38. The roadblock that led to Borsi’s arrest was undertaken for a proper purpose, and
there is no indication in the record that the MHP deviated from its general practice regarding
roadblocks on the night in question. There was no Fourth Amendment violation. Borsi was
not under custodial interrogation when he admitted to smoking marijuana, so there was no
Miranda violation. The trial court properly applied the law to convict Borsi of DUI based
on his being under the influence rather than impaired. And in making its finding that Borsi
was under the influence of marijuana, the trial court properly relied on the witness testimony
and the evidence presented at trial. Lastly, the circuit court’s finding that Borsi was properly
charged the $85 transfer fee was unreasonable based on the evidence before it. Borsi’s
conviction is affirmed, and the decision regarding the $85 transfer fee is reversed and
rendered.
¶39. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
CARLTON, P.J., GREENLEE, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. BARNES, C.J., AND WILSON, P.J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.