State Of Louisiana VS Venessa Lynn Fedele
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 1424 STATE OF LOUISIANA VERSUS VENESSA LYNN FEDELE Judgment rendered December 21 2007 Appealed from the 22nd Judicial District Court in and for the Parish of Washington Louisiana Trial Court No 05 CRl 93363 Honorable William J HON WALTER P REED Burris Judge ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA SHEA PENTON ASSISTANT DISTRICT ATTORNEY FRANKUNTON LA AND KATHRYN LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE LA JANE L BEEBE ATTORNEY FOR NEW ORLEANS LA DEFENDANT APPELLANT VENESSA FEDELE BEFORE 9 CARTER C l PETTIGREW AND WELCH ll PETTIGREW J The defendant Venessa Fedele while intoxicated Following a fourth offense trial a violation of La by jury the defendant 5 000 00 and sentenced to charged by bill of information with driving was found was guilty imprisonment for fifteen years suspended all but sixty days of the imprisonment unsuspended portion of the appeals urging a 14 98 E 5 R sentence be served in the single assignment of error as She charged at hard labor sentence pled She guilty fined was The trial court and ordered parish jail not the The defendant 1 that now challenging the sufficiency of the State s evidence FACTS On October 30 dispatched to 2004 to the intersection of Ward Line Road and investigate the a on vehicle but the driver scene at approximately 1 52 was not in the that the driver of the vehicle a m to continue his was at in a investigation was Washington Parish a tree Upon Deputy Edwards observed the wrecked Later upon area fact the driver of the wrecked vehicle in receiving information indicating nearby hospital Deputy Edwards reported to the He arrived at the hospital at approximately 3 15 The defendant confirmed that she was in question briefly conversing with the defendant observing her physical condition and behavioral manifestations test a m and made contact with the defendant After Highway 1074 single vehicle accident wherein the driver collided with arriving hospital Washington Parish Sheriffs Deputy Richard Edwards and performing a horizontal gaze Deputy Edwards concluded that the defendant was nystagmus HGN sobriety impaired and had been impaired at the time of the collision The defendant had three 1 prior DWI convictions placed the defendant on supervised probation for a period of five 5 years to begin upon release from jail and to be monitored by the Louisiana Office of Probation and Parole The trial court also ordered the defendant to submit to inpatient substance abuse treatment followed by and attendance in a driver home incarceration with electronic monitoring treatment The trial court also immediately outpatient improvement program 2 SUFFICIENCY OF THE EVIDENCE In her sole assignment of denying her motion for subsections trial 1 and 5 a new trial which The defendant the trial court failed to thirteenth the defendant contends the trial court erred in error was based upon La Code Crim P art complains that in denying the motion for 851 a new apply the proper standard of weighing the evidence as a juror Article 851 states in The court on pertinent part as follows motion of the defendant shall 1 The verdict is 5 in trial whenever a new The court is of the Under Article 851 grant to the law and the evidence contrary opinion that the ends of justice would be by the granting of a new trial although the defendant may not be entitled to a new trial as a matter of strict legal right served consider the State v La hand Morris 96 1008 pp weight 10 13 97 App 1 Cir 9 27 96 is on weight of the evidence denied 97 1077 La 12 ruling 10 11 motion for a not its La give evidence App 1 Or 3 27 97 703 SO 2d 609 681 So 2d 1007 in criminal cases discretion of the trier of fact Steward courts may review the denial of grant or the trial court sufficiency and sits constitutionally precluded from acting to trial new see as a An thirteenth v Steward thirteenth that determination 95 1693 p in juror assessing what resting solely within the 681 So 2d at 1014 motion for trial new juror court on the other appellate 95 1693 at 12 a only 691 So 2d 792 799 writ also State 1014 as a can Appellate only for errors of law See La Code Crim P art 858 In the instant case the defendant has made no committed in this case State cert denied v 98 1078 p 37 art 851 1 Hampton 98 0331 pp 528 n s U 1007 21 22 an error of law Accordingly the denial of the defendant s motion for based either upon La Code Crim P See showing that 12 13 La 5 subject to review 4 23 99 750 So 2d 867 879 880 1999 Snyder 750 So 2d 832 859 l J trial is not 145 L Ed 2d 390 120 S Ct 504 La 4 14 99 or new was n 21 22 State v on appeal Nevertheless since much of the defendant claim that the evidence prays for a insufficient to was reversal of her conviction s argument in brief focuses support the conviction rather than a new trial her on and the defendant will consider the we sufficiency argument The standard of review for the is whether sufficiency of the evidence viewing the evidence in the light beyond 2781 2789 Mussall reasonable doubt a 61 L Ed 2d 560 523 SO 2d 1305 Jackson 1979 used to prove the commission of Virginia 443 v La 1988 La R S 2 La App 1 Cir 2 19 99 748 So 2d 1157 test to be evidence 730 SO 2d 485 486 2000 0895 La both direct and circumstantial 10 21 97 L Ed 2d 722 guilty beyond 701 So 2d 922 15 438 writs denied influence of alcohol or 1 Cir 5 10 96 that the defendant an drugs accused of instant DWI to a proved defendant was 99 0802 524 La a satisfy v it must 10 29 99 This is not a a separate conviction rational Ortiz 96 1609 s U 943 La was was a s R 14 98 A operating a all juror p 118 S Ct 2352 Thus vehicle State v 12 141 we are under the influence of 4 a prosecution need and that he Graves and the defendant DWI offenses used operating the vehicle the In the instant case 1145 vehicle predicate fourth offense while intoxicated driving operating 675 So 2d 1141 been convicted of the three was denied evidence is Wright 98 0601 p v 773 SO 2d 732 State v requires that assuming must be sufficient to cert State in order to convict See State reasonable doubt 930 only prove that the defendant time she a 99 S Ct 1998 In order to convict App 11 17 00 art 821 B applied when circumstantial evidence forms the basis of that the defendant is La hypothesis of innocence 319 When circumstantial every fact to be proved that the evidence tends to prove exclude every reasonable conviction prosecution any s U 307 Code Crim P offense an a proved the essential elements of the See also La 1308 1309 uphold most favorable to the rational trier of fact could conclude that the State crime to under the was 95 0578 there is p no 7 La dispute stipulated that she had by the State to enhance the concerned only with whether the State controlled dangerous substance at the Intoxication condition about which sufficient to case are by case support basis sufficient to 4 19 02 subject failed support a its a 638 SO 2d 1212 manifestations La App 1 Cir 3 28 01 field sobriety independent of any scientific State officer s an 2001 1558 State Smith v 93 1490 p 6 La this court found the evidence sufficient to had consumed four beers he were bloodshot App 1 Cir 6 24 94 support a OWl conviction observed the defendant s was Smith found to be erratic he was OWl conviction his speech was staggering he admitted that he uncooperative and aggressive after being arrested was and he refused to take the breath test driving The defendant failed the field 93 1490 at 3 5 638 So 2d at 1214 supported by the evidence when physical appearance sobriety tests He slurred attempted a trooper speech to hide a and vodka bottle under the back seat of his truck and he admitted he had drunk alcohol State Worachek 98 2556 p 9 By contrast 1987 an unsteady La in State arresting officer on her feet s App 1 Cir 11 5 99 St v Amant 504 So 2d 1094 statement that sobriety test Similarly in State 696 SO 2d 618 the defendant s v had slurred speech and La App of alcohol 5 Cir was insufficient to sustain the State was on a video s recording of the Sampia 96 1460 La App 1 Cir 6 20 97 conviction was officer s observations that the defendant who alcohol 1098 the defendant smelled and seemed confused v 743 So 2d 1269 1274 burden where the defendant did not appear intoxicated field a test may constitute sufficient evidence of intoxication to slurred and deliberate his eyes behavior test subjective opinion that where the trooper testified that the defendant smelled of alcohol a on a Anderson v 784 So 2d 666 676 writ denied Furthermore are 1215 In Smith Similarly observable an must be determined charge of driving while intoxicated a is What behavioral manifestations testify Some behavioral manifestations 813 So 2d 421 a behavioral witness may OWl conviction a attendant charge of driving while intoxicated support 2000 1737 p 10 La with not was involved in swayed slightly defendant until almost four hours after the accident 5 supported despite the arresting an accident smelled of The officer did not observe the and the defendant s speech and swaying could have been attributable to factors other than intoxication emotional state Sampia 96 1460 In the instant that she case the very serious accident the defendant argues that prescribed methadone it collision in the dark a head was a after injury and after she impaired while operating her vehicle was The during the investigation she told Deputy Edwards that she prescribed pain medication after the accident question hours not rational for the trial court to find this was evidence sufficient to establish that she had taken her her although Deputy Edwards testified wherein she claims she sustained defendant further asserts that as at 5 696 SO 2d at 621 to be intoxicated based upon the HGN test administered appeared had taken such direct result of the foggy weather conditions not any Thus she claims the dangerous condition of the intersection and drug related impairment Specifically noting that the State failed to present any evidence of the amount of methadone found in her system the defendant argues that it her hypothesis of innocence evidence was In response At the trial the testified that when he conducted test and the by Deputy Edwards clearly proves that the defendant operated her vehicle while under the influence of methadone of her unsure rejected the State submits that the uncontradicted including the laboratory analysis the results of the HGN sobriety observations and unreasonable for the trial court to have a HGN with her eyes State s only a controlled witness surroundings sobriety Her speech Deputy Edwards was spoke with the defendant dangerous substance at the was Deputy Edwards hospital she appeared disoriented also a bit slurred Deputy Edwards test wherein the defendant was instructed to follow an object Deputy Edwards watched for sudden involuntary jerking of the eye while following the object Deputy Edwards testified that during the test he observed that the defendant s eyes indicated the substance person were glazed over and there was slight tick past 45 degrees which possibility of the presence of either alcohol Because he did not detect the odor of alcohol Deputy Edwards suspected impairment by Deputy Edwards further explained that observing a an a or controlled his dangerous substance suspicions empty methadone prescription bottle with the defendant s 6 dangerous emitting from the defendant s controlled consistent with a he name on recalled it while conducting an inventory of the vehicle at the of the accident scene Consequently Deputy Edwards asked the defendant if she had taken any medication that day defendant responded affirmatively and indicated that she had taken two tablets of methadone this Deputy Edwards testified that the defendant denied taking morning any medications and or consuming any alcohol after the collision information and the observed behavioral manifestations the defendant was She question had traveling foggy weather conditions warning signs at the intersection on the road in old covered railroad tracks actually located was being impaired presented the hypothesis of innocence that she and the absence of stop upon this Deputy Edwards concluded that the defendant testified and denied wrecked her vehicle due to the dark that when Based impaired At the trial road The question as an at She claimed she the night in night in question The defendant further testified night she often relied indication the off of the road and ran on on as to on a bump in the where the intersection and was not aware that the bump or in the road recently been fixed As further support for her hypothesis of innocence testimony from John Gartman presented neighbor and friend of the defendant a the defense Gartman testified that he too had been involved in explained that he inadvertently drove Gartman further testified that he the State after defendant installed s being involved collision in an intersection with the The s a accident at this intersection several reflective was filed foggy morning at the intersection all subsequent against to the warning signs Gartman He were opined that the along but they were not In the defense introduced a photograph of the warning signs defense and the State defendant at the on of another individual who filed suit after the lawsuit testimony intersection same out into the intersection to Gartman warning signs needed to have been connection with Gartman similar incident at the was aware According at the intersection a hospital stipulated that when tested a blood revealed the presence methadone metabolites and the absence of any alcohol The 7 sample provided by the of methadone and stipulation further provided n that metabolites of the are c ompounds present in the body that indicate the body s processing drug of which they are metabolites the defendant s three In the instant n The parties also stipulated to the existence of prior OWl convictions the evidence of the defendant case single vehicle accident Deputy Edwards s s impairment consisted of the personal observations of the defendant s physical condition speech and behavioral manifestations the defendant s performance on the HGN test the defendant sobriety and the blood test morning metabolites in the defendant In finding s statement that she s ingested methadone that reflecting the presence of methadone and methadone system the defendant guilty charged the jury obviously accepted the as testimony of Deputy Edwards and rejected the defendant s hypothesis of innocence We find this rejection reasonable the trier of fact the of any witness 800 805 jury State writ denied v was Johnson 99 1386 presented by the defendant s light of the facts and circumstances free to accept La circumstantial evidence and the guilty unless there in 98 1407 10 1 99 reject p 6 in whole La App in or As part the testimony 1 Cir 4 1 99 748 SO 2d 439 case When 734 SO 2d a case involves jury reasonably rejects the hypothesis of innocence own is another or in this testimony that hypothesis falls and the defendant is hypothesis which raises a reasonable doubt State v Captville 448 SO 2d 676 680 La 1984 After a careful review of the record and most favorable to the State beyond a innocence we reasonable doubt was on offense the defendant claims she collision we as light night in question and therefore note that this claim is hypothesis of under the influence of methadone at the time she operated the vehicle Insofar in the find that any rational trier of fact could have concluded and to the exclusion of any reasonable that the defendant the viewing all of the evidence OWl fourth ingested methadone subsequent to the unsupported by the record was guilty of At the trial when asked if she took any of her medication after the accident the defendant indicated that she could not remember specifically indicated Deputy Edwards on the other hand testified that the defendant to him that she did not 8 This assignment of error is without merit REVIEW FOR ERROR In her brief under La the defendant asks that this court examine the record for Code Crim P art Under Article 920 2 error 920 2 we are This court limited in error routinely reviews the record for such our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a errors careful review of the record in these See State So 2d 112 123 125 Price v en 2005 2514 banc proceedings pp petition for cert 18 22 La filed at La we have found App 1 Cir no reversible 12 28 06 Supreme Court on 1 952 24 07 2007 K 130 For the foregoing reasons the defendant s conviction and sentence CONVICTION AND SENTENCE AFFIRMED 9 are affirmed STATE OF LOUISIANA NUMBER 2007 KA 1424 FIRST CIRCUIT VERSUS COURT OF APPEAL VENESSA LYNN FEDELE WELCH J tvJ STATE OF LOUISIANA DISSENTING I believe that the evidence is legally insufficient support defendant to DWI s conviction and therefore I respectfully dissent The evidence cited at by the majority the time of the accident and thus single vehicle defendant s defendant s accident 2 methadone in defendant undisputed prescription on the HGN for prior However there which methadone s the critical defendant methadone at question was the defendant the blood test ingested about s 3 the admission reflecting the presence methadone It is also accident one s ability system to drive the time of the accident is whether the State at pills undisputed scientific evidence offered impaired 4 manifestations the 1 of some by the or which she had a that defendant tested time after the accident State to show the level at of the level of methadone in In the absence of such evidence proved beyond a reasonable doubt that the time of the accident because of her ingestion of I conclude it did not The first piece of evidence relied defendant drove her vehicle off of the drove 5 of methadone in her impairs system impairment system s to the was no s observations personal test sobriety day and that defendant positive for the presence defendant Edwards physical condition speech and behavioral performance defendant demonstrating supporting her conviction includes Deputy that she took methadone that It is as through an unlit T on to support the conviction is the fact that The record reflects that defendant roadway intersection on a foggy evening These driving conditions made it other than likely that the accident could have been attributable to factors impairment Moreover Deputy Edwards observations regarding defendant s physical condition speech accident The evidence showed that defendant sustained lacerations to her chin and through a mile over a there site to and behavioral mannerisms could and her home and that she to environment speech was was amount slurred It is to Deputy the accident rather than impairment trauma methadone in failed the HGN Moreover there prescribed dosages s evidence defendant be of the excess caused operated a a sobriety a evidence motor when there is Therefore I would reverse no disoriented and her physical However test demonstrating her beyond impaired in 2 in the test a was injuries and that defendant took physician and there was taking the medication at case reasonable I believe the doubt that A defendant should not dosages recommended by warning contraindicating driving her conviction appearance Deputy Edwards IS all of the circumstances of this vehicle while intoxicated of her by injuries she sustained vehicle while insufficient to prove hospital aware person who sustained facial prosecuted for taking prescribed medication physician at the use dosages recommended by Considering was to was no warning contraindicating driving State was defendant s poor were her that accident at coherent and defendant from methadone administered hours after the accident no saw strongest evidence supporting the conviction testimony that defendant head Edwards difficulty speaking alert was quite possible that the Deputy Edwards acknowledged that covered in blood when he first According to result of the accident and walked a of blood in defendant s vehicle hospital records defendant her disorientation and The as call for assistance to considerable was a According through lip laceration easily be attributable a motor the vehicle
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