State v. Gage

• Decision Date: 29 August 2007
• Docket Number: No. 42,279-KA.,42,279-KA.
• Citation: 965 So.2d 592
• Parties: STATE of Louisiana, Appellee, v. Robert Earl GAGE, Appellant.
• Court: Court of Appeal of Louisiana — District of US

965 So.2d 592

STATE of Louisiana, Appellee, v. Robert Earl GAGE, Appellant.

No. 42,279-KA.

Court of Appeal of Louisiana, Second Circuit.

August 29, 2007.

Annette Roach, Louisiana Appellate Project, for Appellant.

Paul J. Carmouche, District Attorney, William Edwards, Jeremy Lacombe, Assistant District Attorneys, for Appellee.

Before WILLIAMS, CARAWAY and DREW, JJ.

CARAWAY, J.

A jury convicted Robert Earl Gage ("Gage") of driving while intoxicated, fourth offense ("DWI Fourth"), in violation of La. R.S. 14:98(E). The trial court sentenced defendant to 10 years at hard labor, and ordered the sentence be served consecutively to the partially probated 10 year sentence previously imposed for another DWI Fourth conviction of defendant in 2004. Finding no error in the trial court proceedings, we affirm defendant's conviction, amend the sentence to be served without benefits and consecutively with the balance of any other sentence imposed for a prior conviction for any offense, and affirm the sentence as amended.

Facts

On November 4, 2004, Detective J. Cromer was driving an unmarked police vehicle in Shreveport and observed a white pick-up truck speeding past him on the inside lane. Officer Cromer followed behind, watching defendant change lanes erratically and narrowly miss colliding with a taxi at a red light. He continued to follow defendant onto a neighborhood street, where Gage drove into a driveway. Cromer had already radioed for patrol back-up during his pursuit, before activating his lights and getting out of the unmarked police car. Cromer exited his unmarked unit to question the defendant. The detective was in plain clothes but wearing a dark vest marked "POLICE" and his badge. He identified himself as a police officer. He noticed a strong odor of alcohol and that defendant's speech was slightly slurred. Gage's comments concerned a sibling who had just died. Several patrol units arrived to handle the arrest. When Gage failed to produce his driver's license, Officer Cromer discovered defendant's license was suspended and he had numerous prior convictions, including several offenses for DWI. Officer Cromer concluded the defendant was impaired and advised him of his Miranda rights. No field sobriety tests were conducted on Gage in the driveway. Officer Jones transported defendant to the Police Department Traffic Unit (or Selective Enforcement) for field sobriety testing.

The videotape recorded at the Police Department Traffic Unit captured the details of the attempts at chemical and sobriety testing of Gage before and after his invocation of the right to counsel. Officer Devries testified at trial that Gage's speech was slurred and he detected the odor of alcohol. The horizontal gaze nystagmus ("HGN") test conducted by Devries reflected Gage's intoxication. Some of the videotape was played for the jury.

At trial, defendant's counsel stipulated three prior DWI convictions as described in the amended bill of information. These consisted of (1) Gage's guilty plea to Second Offense DWI on February 5, 1997, in Shreveport City Court, Docket 762,331; (2) a guilty plea to Second Offense DWI on May 20, 2002, in the First Judicial District Court, Caddo Parish, Docket 216,875; and (3) a guilty plea to Fourth Offense DWI on March 30, 2004, also in Caddo Parish district court.

Gage testified at trial that he was extremely upset when he was arrested for the instant offense, due to his brother's death, and other recent family deaths. His blamed his "loss of sanity" on overwhelming grief and denied any connection between his behavior and drinking alcohol. He acknowledged the offenses detailed on his rap sheet and blamed this prior misconduct on drug addiction. Gage's past convictions included possession of CDS, theft, public drunkenness, battery, criminal damage to property, driving under suspension and DWI. He acknowledged that his operation of a motor vehicle before his arrest for the present offense violated the terms of his probation for his March 2004 DWI Fourth conviction.

The six person jury convicted Gage of Fourth Offense DWI. Gage appeals.

Discussion

I.

Appellant assigns as error insufficient evidence for proof of his conviction for the offense, and instead attributes his impaired condition to bereavement over his brother's death. He argues that the state failed to negate this hypothesis of innocence.

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The standard of appellate review for a sufficiency claim 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 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07) 956 So.2d 769; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165, 1166. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442, 443. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, 614, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747; State v. Barakat, 38,419 (La.App.2d Cir.6/23/04), 877 So.2d 223, 227. To convict a defendant based upon circumstantial evidence, every reasonable hypothesis of innocence must be excluded. State v. Barakat, supra, citing La. R.S. 15:438. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35; State v. Wiltcher, supra.

To convict a defendant of DWI Fourth, the state must prove that the defendant has had three other prior valid convictions, as defined by La. R.S. 14:98(F)(1), and that these convictions are not stale under La. R.S. 14:98(F)(2). State v. Pickard, 40,422 (La.App.2d Cir.12/14/05), 918 So.2d 485, 489, citing State v. Inzina, 31,439 (La.App.2d Cir.12/9/98), 728 So.2d 458. La. R.S. 14:98 provides in part that the crime of operating a vehicle while intoxicated is the operating of any motor vehicle when the operator is under the influence of alcoholic beverages or the operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per 100 cubic centimeters of blood. To convict an accused of driving while intoxicated, the state need only prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. Some behavioral manifestations, independent of any scientific tests, are sufficient to support a charge of driving while intoxicated. State v. Harper, 40,321 (La.App.2d Cir.12/14/05), 916 So.2d 1252; State v. Courtney, 30,629 (La. App.2d Cir.5/13/98), 714 So.2d 176. It is not necessary that the conviction be based upon a breath or blood alcohol test. The observations of an arresting officer may be sufficient to establish guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Blackburn, 37,918 (La.App.2d Cir.1/28/04), 865 So.2d 912; State v. McDonald, 33,013 (La.App.2d Cir.3/1/00), 754 So.2d 382.

Officer Devries testified that defendant showed nystagmus at all six points when the HGN test was conducted. In addition to this poor performance, both police officers testified that defendant smelled of alcohol and slurred his speech. Officer Cromer initially observed defendant speeding, changing lanes of traffic repeatedly, and almost colliding with another vehicle. Gage's conduct at the Traffic Unit shown on videotape also indicates his intoxication. The totality of these circumstances led both officers to conclude that Gage was impaired.

In State v. Harper, supra, the defendant did not submit to any field sobriety tests other than the HGN, but this court found the evidence was sufficient to support his conviction based on the totality of the evidence. Testimony concerning the defendant's disoriented behavior, the smell of alcohol, evidence of spilled beer inside his vehicle, his verbal abuse of the officers, and poor performance on the HGN test, was sufficient to prove the essential elements of the charged offense.

In this case, the lack of additional field sobriety testing similarly does not hamper the state from proving this defendant was operating a vehicle while intoxicated. The testimony of the officers' observations of the defendant's condition and his recklessness amply support...