State v. Delanueville

• Decision Date: 14 February 2012
• Docket Number: No. 11–KA–379.,11–KA–379.
• Citation: 90 So.3d 15
• Parties: STATE of Louisiana v. Emile DELANUEVILLE.
• Court: Court of Appeal of Louisiana — District of US

90 So.3d 15

STATE of Louisiana

v.Emile DELANUEVILLE.

No. 11–KA–379.

Court of Appeal of Louisiana,Fifth Circuit.

Feb. 14, 2012.

Honorable Thomas F. Daley, District Attorney, Orenthal J. Jasmin, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.

Richard M. Millet, Attorney at Law, Laplace, LA, for Defendant/Appellant.

Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.

WALTER J. ROTHSCHILD, Judge.

[5 Cir. 2]Emile Delaneuville ¹ was charged with a fourth offense of operating a motor vehicle while intoxicated in violation of LSA–R.S. 14:98. He was arraigned and pled not guilty to this charge. Defendant waived his right to a jury trial and the matter proceeded to a bench trial. Following trial, the trial judge issued a judgment finding defendant guilty as charged. Defendant subsequently filed motions for a new trial and a post-verdict judgment of acquittal, both of which were denied.

Defendant was sentenced to ten years with the Department of Corrections, all but sixty days suspended, to be served consecutively and uninterrupted. The judge also ordered defendant to serve one year of home incarceration with the restriction that defendant could not drive during that time and with curfew restrictions to be imposed by the probation officer. Additionally, the judge ordered defendant to be on active probation for five years with the condition that defendant [5 Cir. 3]have an Interlock device installed in his vehicle during the probationary period. The judge further informed defendant of the conditions of his probation. Lastly, the judge ordered defendant to pay a mandatory fine of $5,000.00 and court costs in the amount of $303.50. Defendant now appeals on the basis of several assignments of error.

FACTS²

On December 27, 2007 at approximately 1:20 p.m., Sergeant Aron Hastings and Lieutenant Lester Rulf, enforcement agents with the Louisiana Department of Wildlife and Fisheries, were travelling northbound along Highway 51 in St. John the Baptist Parish when they passed a green truck parked on the shoulder of the road facing south. As the agents passed, they observed the occupant of the driver's seat, who was later identified as defendant, toss a beer can and a plastic bag out of the truck. Upon observing this, the agents turned their vehicle around to get behind defendant's truck to stop him for littering. While the agents made the U-turn, defendant got back on the road and headed southbound. The agents followed defendant for 0.7 miles before pulling him over. When Sgt. Hastings made contact with defendant, he observed an 11–year–old boy in the passenger seat and informed defendant that he had been stopped for littering.³ Defendant responded that he was not hunting. Sgt. Hastings again told defendant that he had been stopped for littering, to which defendant again responded that he was not hunting. Sgt. Hastings testified that he could smell the odor of alcohol emanating from defendant.⁴ Sgt. Hastings then asked defendant if there were any guns in the vehicle, to which defendant replied, “Man, why you got to be like that?” Sgt. [5 Cir. 4]Hastings then asked him the same thing again, and defendant gave the same response.⁵ At this point, Sgt. Hastings asked defendant to exit the vehicle. Several requests had to be made before defendant complied.

Defendant stood at the rear of his vehicle, holding on to it to maintain his balance.⁶ He explained to Sgt. Hastings that he was firing warning shots to scare off people who were hunting on his property. While defendant offered this explanation, Sgt. Hastings observed that he had bloodshot eyes and slurred speech.⁷ At this point, the agent asked defendant to submit to an HGN (horizontal gaze nystagmus) test, which defendant refused to do. After several requests and refusals, defendant told the agent that he had a problem with his knees. Sgt. Hastings replied that he did not ask him if he had a problem with his knees, rather, he wanted to check his eyes. The agent showed defendant a pen he wanted him to follow with his eyes. Defendant stated that he could not follow a light at the time. The agent replied that it was not dark and that he did not ask him to follow a light. Defendant was then placed under arrest for suspicion of DWI. Sgt. Hastings photographed the trash that defendant had discarded from his truck: an empty Coors Light can, which appeared to still be sweating with condensation, and a Pilot plastic bag.

LAW AND DISCUSSION

In his first assignment of error ⁸, defendant argues that the evidence was insufficient to find defendant guilty of driving while intoxicated beyond a [5 Cir. 5]reasonable doubt. Specifically, defendant contends that the evidence did not establish that he was intoxicated.⁹ The State responds that despite the lack of scientific tests indicating intoxication, the observations made by the arresting officer were sufficient to support a finding of driving while intoxicated.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Mickel, 09–953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534,writ denied,10–1357 (La.1/7/11), 52 So.3d 885 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00–0674, p. 9 (La.6/29/01), 796 So.2d 649, 657,cert. denied,535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)). Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08–20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08–20 at 7, 985 So.2d at 240.

In the instant case, defendant was convicted of a fourth offense of operating a vehicle while intoxicated in violation of LSA–R.S. 14:98. At the time of the offense, that statute provided, in pertinent part:

[5 Cir. 6]A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... when:

(a) The operator is under the influence of alcoholic beverages; or

(b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or

In order to convict an accused of driving while intoxicated, the prosecution need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. State v. Cowden, 04–707, p. 8 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, 1082,writ denied,04–3201 (La.4/8/05), 899 So.2d 2 (citing State v. Bourgeois, 00–1585 (La.App. 5 Cir. 3/14/01), 785 So.2d 848, 853). To convict a defendant of a fourth offense of driving while intoxicated, the State must also show that the defendant had three other valid convictions. LSA–R.S. 14:98(E). In the present case, there was no dispute that defendant was operating a vehicle or that he had three prior DWI convictions.¹⁰ Thus, the State needed only to prove that defendant was under the influence of alcohol.

The Louisiana Supreme Court has defined intoxication as the impairment, however slight, to the ability of a person to operate an automobile. State v. Hightower, 238 La. 876, 116 So.2d 699, 703 (1959). The court further explained that the impairment need not be complete but only to the degree that the influence causes a person to operate his car in a manner different from that in which it would be operated by an ordinarily cautious and prudent person. Id.

The jurisprudence has established that intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify, and some behavioral signs, independent of any scientific test, are sufficient [5 Cir. 7]to support a charge of driving while intoxicated. Cowden, 04–707 at 8, 889 So.2d at 1082, (citing Bourgeois, 00–1585, 785 So.2d at 853). The behavioral manifestations which are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. Id.

In State v. Landry, 463 So.2d 761, 767 (La.App. 5 Cir.1985), writ denied,464 So.2d 1373 (La.1985), this Court found that the evidence was sufficient to support the defendant's conviction for driving while intoxicated, despite his refusal to submit to a field sobriety test. In that case, the arresting officer pulled the defendant over after he observed him swerving between lanes. Id., 463 So.2d at 766. During the traffic stop, the defendant admitted that he had been drinking, and the officer observed the defendant staggering, leaning on his car for support, slurring his speech, and had the odor of alcohol about him. Id., 46 So.2d at 767. This Court concluded:

While the [officer's] observations were not made during the course of a “subjective” field sobriety test, the same physical traits would have manifested themselves had the defendant attempted to perform the test. It is implausible to hold that, because the defendant refused to submit to a field sobriety test, his exhibition of the same physical traits which the field sobriety test was designed to uncover were insufficient to support a driving while intoxicated conviction.

Id.

Similarly, in State v. Conner, 02–363 (La.App. 5 Cir. 11/13/02), 833 So.2d 396, 403,writ denied,02–3064 (La.4/25/03), 842 So.2d 396, this Court found that the evidence was sufficient to support the defendant's conviction for driving while intoxicated, despite his refusal to submit to a field sobriety test. The defendant was pulled over for speeding; and during the...