State v. Fuslier

• Decision Date: 31 October 2007
• Docket Number: No. 07-572.,07-572.
• Citation: 970 So.2d 83
• Parties: STATE of Louisiana v. Lloyd FUSLIER.
• Court: Court of Appeal of Louisiana — District of US

970 So.2d 83

STATE of Louisiana v. Lloyd FUSLIER.

No. 07-572.

Court of Appeal of Louisiana, Third Circuit.

October 31, 2007.

James E. Burks, Lake Charles, LA, for Defendant/Appellant Lloyd Fuslier.

Douglas L. Hebert, Jr., District Attorney-Thirty-third Judicial District, Oberlin, LA, for Appellee State of Louisiana.

Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

The Defendant, Lloyd Fuslier,¹ was previously before this court appealing two of his three misdemeanor convictions and his felony conviction of first degree vehicular negligent injuring. This court, finding that the evidence was sufficient to sustain the two misdemeanor convictions, affirmed those convictions and sentences. However, in its error patent review, this court found it impossible to determine from the record whether the Defendant's waiver of jury trial on the felony charge was knowingly and voluntarily made. The record contained a written motion requesting a bench trial, but the motion was not signed by the Defendant. The motion was granted, but there was no indication that this was done in open court. The record contained no minute entries concerning the waiver of the Defendant's right to a jury trial. Moreover, the lower court informed this court that a review of all recordings and notes revealed no "testimonial evidence" regarding the waiver of this right. Thus, this court remanded the case to the trial court for an evidentiary hearing on the issue of whether the Defendant knowingly and intelligently waived his right to a jury trial. This court further ruled that the "Defendant's appeal of his felony conviction and all issues pertinent thereto" were to be addressed after the hearing was held, and the record was relodged in this court.² State v. Fuslier, 06-1438, p 16 (La.App. 3 Cir. 4/4/07), 954 So.2d 866, 876.

On April 24, 2007, the trial court held the required evidentiary hearing. Defense counsel and the Defendant testified at the hearing, and the judge found that the Defendant had knowingly and intelligently waived his right to a jury trial. For the following reasons, we now affirm the Defendant's conviction for first degree vehicular negligent injuring, and we remand the case to the trial court for establishment of a payment plan for the fine and costs ordered as conditions of probation.

FACTS

On a rainy evening, December 3, 2004, at approximately ten o'clock, Defendant, alone at the time, was driving his truck in a westerly direction on Highway 190 toward Kinder, Louisiana. The victims, A.C. and L.F.,³ both fifteen years of age at the time, were traveling in a Chevrolet Impala in an easterly direction toward Elton, Louisiana, with A.C. driving. It is alleged that Defendant's truck crossed the centerline of the roadway and struck the victims' car. A.C. received severe injuries. L.F. received minor injuries. It was later determined that, at the time of the accident, Defendant's blood/alcohol concentration was 0.12 percent.

ERRORS PATENT

As previously set forth in the original appeal, it was unclear from the record whether the Defendant knowingly and intelligently waived his right to a jury trial on the felony charge of first degree vehicular negligent injuring. For that reason, we remanded the case for an evidentiary hearing on that issue. A review of the transcript of the hearing now makes it clear that the Defendant did knowingly and intelligently waive this right.

Upon Defendant's conviction of first degree vehicular negligent injuring, the trial court imposed a $1,000.00 fine and all court costs, including $100.00 to the DARE Program and $50.00 to the Drug Education Program, as conditions of the Defendant's probation. However, the trial court did not establish a plan for payment of these fees.⁴ "This court has found error patent when the trial court fails to establish a payment plan for fees ordered as conditions of probation." State v. Theriot, 04-897, p. 7 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016, 1021 (citations omitted). Therefore, we remand this case to the trial court with the instruction that the trial court impose a payment plan for these fees. The plan may either be determined by the trial court or formulated by Probation and Parole and approved by the trial court. See State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597.

ASSIGNMENT OF ERROR

The Defendant claims that the evidence was insufficient to sustain his convictions of first degree vehicular negligent injuring, vehicular negligent injuring, and driving left of center. Specifically, the Defendant argues there was not sufficient evidence that it was his vehicle that crossed over the centerline of the roadway. As noted above, this court previously upheld the Defendant's convictions and sentences for vehicular negligent injuring and driving left of center, but it pretermitted adjudication as to the Defendant's felony conviction of first degree vehicular negligent injuring pending the evidentiary hearing. Complying with the direction provided by this court in State v. Clark, 97-1064 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, writ granted and case remanded in light of supplemental filing, 98-1180 (La.9/25/98), 726 So.2d 2, on remand, 97-1064 (La.App. 3 Cir. 11/25/98), 735 So.2d 649, and the supreme court in State v. Morris, 615 So.2d 327 (La.1993), we conducted a review of the sufficiency of the evidence on Defendant's felony conviction of first degree vehicular negligent injuring. Specifically, Defendant argues there was not sufficient evidence that it was his vehicle that crossed over the centerline of the roadway.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was charged with first degree vehicular negligent injuring. This offense is described, in pertinent part, as follows:

A. First degree vehicular negligent injuring is the inflicting of serious bodily injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:

(1) The offender is under the influence of alcoholic beverages.

(2) The offender's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

. . . .

C. For purpose of this Section, "serious bodily injury" means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member or organ or a mental faculty, or a substantial risk of death.

La.R.S. 14:39.2.

Vehicular negligent injuring is defined as:

A. Vehicular negligent injuring is the inflicting of any injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:

(1) The offender is under the influence of alcoholic beverages.

(2) The offender's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.

La.R.S. 14:39.1.

The offense of operating a vehicle while intoxicated occurs when the operator of a vehicle "is under the influence of alcoholic beverages; or (b) [when] [t]he operator's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood." La.R.S. 14:98(A).

Finally, a driver is mandated to drive on the right side of the roadway unless "passing another vehicle proceeding the same direction under the rules governing such movement," or "[w]hen the right half of a roadway is closed to traffic," or "[u]pon a roadway designated and signposted for one-way traffic." La.R.S. 32:71(A). The State alleged that Defendant illegally drove his vehicle into the left lane.

Both victims testified at trial. A.C., who was eighteen years of age at the time of trial, testified that she was driving her mother's Chevrolet Impala. She stated that she and her best friend, L.F., had gone to a church function in Kinder. At approximately 9:30 p.m., they left and went to Market Basket for a few minutes. She then drove along Highway 190 toward Elton to take L.F. home. A.C. has no recollection of the accident. Although she recalled it being a rainy night and seeing oncoming traffic, she did not recall seeing Defendant's truck. A.C. testified that one moment she was talking with L.F., and the next moment she woke up in the hospital. She testified that the orbital bones in her face were broken in several places,...