State v. Fuslier

• Decision Date: 04 April 2007
• Docket Number: No. 06-1438.,06-1438.
• Citation: 954 So.2d 866
• Parties: STATE of Louisiana v. Lloyd FUSLIER.
• Court: Court of Appeal of Louisiana — District of US

954 So.2d 866

STATE of Louisiana v. Lloyd FUSLIER.

No. 06-1438.

Court of Appeal of Louisiana, Third Circuit.

April 4, 2007.

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

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

Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.

GENOVESE, Judge.

Lloyd Fuslier (Fuselier¹) was charged by Bill of Information on March 4, 2005 with one felony count of first degree vehicular negligent injuring, a violation of La. R.S. 14:39.2; one misdemeanor count of vehicular negligent injuring, a violation of La.R.S. 14:39.1; one misdemeanor count of operating a vehicle while intoxicated, first offense, a violation of La.R.S. 14:98; and, one misdemeanor count of driving left of center, a violation of La.R.S. 32:71. On May 17, 2006, pursuant to bench trial, the trial court found Defendant guilty as charged on all four counts.

On September 1, 2006, Defendant was sentenced as follows:

1. Pursuant to the felony conviction for first degree vehicular negligent injuring, Defendant was sentenced to four years at hard labor, with all but six months suspended. Following release, Defendant was placed on four years supervised probation, with general and special conditions of probation, fees, and court cost. Defendant was also ordered to pay restitution to the victim of two thousand two hundred eighty-three dollars and thirty-eight cents;

2. Pursuant to the misdemeanor conviction for vehicular negligent injuring, Defendant was sentenced to serve six months in the parish jail, to run concurrently with the previously imposed sentence;

3. Pursuant to the misdemeanor conviction for operating a vehicle while intoxicated, first offense, Defendant was sentenced to six months in the parish jail, to run concurrently with the two previous sentences, plus a fine of five hundred dollars; and,

4. Pursuant to the misdemeanor conviction for driving left of center, Defendant was ordered to pay a fine of one hundred dollars within three months of his release from jail, or serve an additional ten days.

Defendant has timely perfected an appeal, asserting there was insufficient evidence to sustain two of the misdemeanor convictions and the one felony conviction as presented to the trier of fact. After a complete review of the record, we find that the evidence was sufficient for the trier of fact to determine beyond a reasonable doubt that Defendant was guilty as charged on the misdemeanor offenses; and, due to error patent, we pretermit adjudication as to the felony offense of first degree negligent injuring pending a hearing, after remand, on the issue of whether or not Defendant knowingly and intelligently waived his right to counsel on said felony offense.

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.,² both fifteen years old at the time, were traveling in a Chevy Impala in an easterly direction toward Elton, Louisiana, with A.C. driving. Defendant's truck crossed the centerline of the roadway and struck the Chevy Impala. A.C. received severe injuries. L.F. received minor injuries. It was later determined that Defendant's blood/alcohol concentration was 0.12 percent.

PROCEDURAL ISSUE

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent. Upon reviewing the record, we find one error patent and one procedural issue. The error patent will be addressed in the errors patent section of this opinion. We will first discuss the procedural issue as it addresses whether Defendant's misdemeanor convictions are properly before this court for review.³

Because these charges were not triable by jury, the normal mode of appellate review for these offenses is an application for writ of review rather than an appeal. La.Code Crim.P. art. 912.1(C). In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana from the defendant's appeal of two felony convictions. This court ordered the "defendant to file a writ of review regarding the possession of marijuana conviction in compliance with the Rules of Court." Id. at 289.

In Turner, the court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. In the present case, however, Defendant's attorney attacks Defendant's convictions for the felony and two of the three misdemeanors on the grounds of insufficiency of the evidence. Since Defendant's brief covers the felony and only two of the three misdemeanor convictions, we will not sever the misdemeanor convictions; rather, in the interest of judicial economy, we will address them in the present appeal. We note that the first circuit has stated the following in a similar circumstance:

This appeal relates to both defendant's felony convictions and his misdemeanor convictions. Normally, misdemeanor convictions would not be appealable. Instead, defendant could petition an appellate court for a writ of review. However, when the charges in the two bills of information were consolidated, they became a single "case." Because defendant was entitled to a jury trial, upon conviction he was entitled to appeal the "case." See La. Const. art. I, § 17; La. C.Cr.P. arts. 706 and 912.1(B); State v. Comeaux, 408 So.2d 1099, 1103, 1104 (La.1981).

State v. Swan, 544 So.2d 1204, 1206 n. 3 (La.App. 1 Cir.1989). Considering the foregoing, though the proper legal procedure is to apply for a writ of review, not file an appeal, we will address these two misdemeanor convictions in the present appeal.

As will be discussed below in the errors patent section of this opinion, it is impossible to determine from the record in the present case whether Defendant's waiver of his right to a jury trial on the felony charge of first degree vehicular negligent injuring was knowingly and intelligently made. However, this court must first consider whether there is any merit to Defendant's assignment of error in which he challenges the sufficiency of the evidence. See 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 2⁴ and State v. Morris, 615 So.2d 327 (La. 1993).

ASSIGNMENT OF ERROR

As his sole assignment of error, Defendant asserts that the evidence was insufficient to sustain the convictions. Specifically, Defendant argues there was insufficient evidence to establish 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...