State v. Sermons

• Decision Date: 28 February 2007
• Docket Number: No. 41,746-KA.,41,746-KA.
• Citation: 953 So.2d 958
• Parties: STATE of Louisiana, Appellee v. James Lewis SERMONS, Jr., Appellant.
• Court: Court of Appeal of Louisiana — District of US

953 So.2d 958

STATE of Louisiana, Appellee v. James Lewis SERMONS, Jr., Appellant.

No. 41,746-KA.

Court of Appeal of Louisiana, Second Circuit.

February 28, 2007.

Mark O. Foster, for Appellant.

Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Scott Chafin, Jr., Assistant District Attorney, for Appellee.

Before WILLIAMS, DREW and LOLLEY, JJ.

WILLIAMS, J.

The defendant, James Lewis Sermons, Jr., was charged by bill of information with driving while intoxicated ("DWI"), fourth offense, a violation of LSA-R.S. 14:98. Following a trial by jury, the defendant was convicted as charged. He was sentenced to serve 10 years in prison at hard labor without benefit of probation, parole or suspension of sentence, consecutive with any other sentence, and court costs. For the following reasons, we affirm the defendant's conviction, and we amend the defendant's sentence to impose the $5,000 fine mandated by statute. The sentence is affirmed as amended.

FACTS

On August 3, 2005, at approximately 7:40 a.m., Corporal William Lunsford, Jr. of the Caddo Parish Sheriff's Office responded to a call of a suspicious person at a church located on Colquitt Road in Shreveport, Louisiana. Cpl. Lunsford arrived at the church and found the defendant sitting inside a van parked next to a dumpster. Cpl. Lunsford questioned the defendant, and the defendant stated he had left his girlfriend's house after a disagreement and had pulled into the parking lot. The defendant stated he had been drinking the previous night. Suspecting the defendant was intoxicated, the deputy called to the scene another police unit equipped with a video recorder.

Corporal Gregory Ardoin arrived at the scene with the video recorder and conducted various field sobriety tests on the defendant. The defendant performed poorly. He was placed under arrest and transported to a substation where he submitted to a breath Intoxilyzer test. The test results revealed that the defendant's blood alcohol concentration was .207 percent. The defendant was charged with DWI, fourth offense. Following a jury trial, the defendant was convicted as charged. He was sentenced to serve 10 years in prison at hard labor without benefit of probation, parole or suspension of sentence, consecutive with any other sentence, and court costs.¹ This appeal followed.

DISCUSSION

Sufficiency of the Evidence

The defendant argues the evidence was insufficient to support a conviction. Specifically, the defendant contends the state failed to prove he was actually operating his vehicle while intoxicated. The defendant also argues that the state failed to present evidence that the parked van was operable.

The standard of appellate review for a sufficiency of the evidence 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. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-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. 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. 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, 2002-3090 (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 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 circumstances established by that 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, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

LSA-R.S. 14:98 provides, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance 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....

To convict a defendant of DWI, the prosecution need only prove that he was operating a vehicle and that he was under the influence of alcohol or a controlled dangerous substance. LSA-R.S. 14:98; State v. Presson, 39,688 (La.App. 2d Cir.4/6/05), 900 So.2d 240; State v. Taylor, 38,574 (La.App. 2d Cir.8/18/04), 880 So.2d 197.

In the instant case, the state presented the testimony of several witnesses, including Cpl. Lunsford. Cpl. Lunsford testified that he was responding to a call at a church on Colquitt Road when he noticed the defendant sitting in a van parked next to a dumpster in the parking lot of the church. He questioned the defendant and the defendant stated he had left his girlfriend's house following an argument and pulled into the parking lot. The defendant admitted he had been drinking but stated he was not drinking at that time. Cpl. Lunsford radioed to have a video camera-equipped unit respond to the scene.

Cpl. Ardoin arrived on the scene in response to Cpl. Lunsford's call. Cpl. Ardoin testified that he initially noticed the defendant had a very strong odor of alcohol on his breath, swayed while standing and had slurred speech. Cpl. Ardoin, an instructor for field sobriety testing, administered several standard field sobriety tests, including the horizontal gaze nystagmus test, the finger count and a count backwards test.² The defendant performed poorly on all tests administered. The defendant admitted he had been driving the van and that he had been drinking the night before. According to the defendant, he had stopped drinking around midnight the night before submitting to the tests. The defendant was arrested for DWI after his poor performance on the field sobriety tests. The defendant admitted he did not have a driver's license and that he had three previous DWI convictions.³ The defendant was Mirandized at the sheriff's office south substation in Keithville, Louisiana.

The defendant submitted to an Intoxilyzer test on a machine which the state showed was certified and properly maintained. The test results revealed that the defendant's blood alcohol concentration was .207 percent. After the administration of the testing, Cpl. Ardoin questioned the defendant who again admitted he had been driving the van. The defendant stated he had been driving from his girlfriend's house to the store. The defendant's admissions were recorded by the patrol unit camera and thereafter by cameras inside the substation. The videotape was played for the jury. Cpl. Ardoin testified his car radio was playing during the stop, causing background noise. On cross examination, Cpl. Ardoin acknowledged he did not actually see the defendant driving the vehicle nor did he conduct any interviews with anyone who saw the defendant operating the vehicle.⁴

Patricia Hobbs, the defendant's girlfriend of three years, testified on his behalf. Ms. Hobbs testified at approximately 10:00 p.m. on August 2, 2005, the defendant had called her and asked her to come and visit with him or pick him up from the church, where the couple attended services. Ms. Hobbs went to the church (approximately one-half mile from her home) and the defendant rode to her home with her. After talking and consuming "a couple of beers" Ms. Hobbs decided to go to bed sometime around midnight. She invited the defendant to sleep over in her grandson's room.

Ms. Hobbs testified that she awakened the following morning between 7:00 and 7:30. She stated that she rushed to have the defendant leave her home because she was expecting her father who did not like the defendant. Ms. Hobbs testified she drove the defendant to his van at the church. As the defendant was slow in becoming alert, Ms. Hobbs stated she took the defendant's keys and started his van then moved it near the trash dumpsters so the defendant could clean it out. Ms. Hobbs then rushed the defendant out of her truck so she would be at her home when her father arrived. When she returned home and discovered it was not as late as she had thought, Ms. Hobbs returned to the church to deliver some food to the defendant. She stated that it was her intention to return to the church to pick the defendant up after her father left her home.

According to Ms. Hobbs, approximately 15 minutes after she returned home, she received a telephone call from the deputies informing her that the defendant had been arrested and they wanted her to come to pick up the van. A deputy eventually picked Ms. Hobbs up from her home to take her to the church. Ms. Hobbs...