State Of Louisiana VS Jacob Bell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 KA 1225 STATE OF LOUISIANA VERSUS JACOB BELL Judgment Rendered p f r Appealed December 23 2009 from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case Number 3 07 0332 Honorable Todd W Hernandez Presiding Hillar C Moore III Counsel for District State of Louisiana Attorney Appellee Allison Miller Rutzen Assistant District Baton Rouge Gwendolyn Louisiana Baton K Attorney LA Brown Appellate Project Counsel for Defendant Appellant Jacob Bell Rouge LA BEFORE CARTER C J GUIDRY AND PETTIGREW n GUIDRY J The defendant Jacob Bell offense operating The defendant vehicle while intoxicated a not pled and guilty The defendant filed motions for acquittal which labor with all but imposed of the conditions The defendant found as postverdict judgment of sentenced to now court placed we vacate the hard court also supervised on tion prob to imposed various other appeals designating However at twenty years The trial suspended The trial 14 98 E guilty was with three of those years of years upon his release We affirm the conviction error trial jury trial and was sentence served under home incarceration probation new The defendant ten years a violation of La R S 5 000 fine and ordered that the defendant be a probation for five be denied a following charged were bill of information with fourth charged by was five sentence assignments of and remand for resentencing FACTS On Police January 13 Department defendant who and forth pulled was across over 2007 traveling was driving the road was a northbound pickup truck the defendant in s a directly The defendant s speech was responded in the affirmative condition the defendant placed him in his was in a drifting Harding back lights and Boulevard Captain Bourgeois his strong odor of alcohol from was swaying Captain him if he had been Based Rouge City emergency on slurred and he Bourgeois Mirandized the defendant and asked defendant in front of him license the defendant informed detected Baton 1 110 when he observed the Burger King parking lot suspended Captain Bourgeois the defendant on Captain Bourgeois activated his When asked for his driver license Captain Joseph Bourgeois with the on drinking The his observations and the Captain Bourgeois arrested the defendant and police unit Captain Bourgeois had already completed his work 2 shift so he contacted Corporal Mickey Department DWI Task Force Captain Bourgeois While performing found on an Duncan with the Baton complete the investigation to called wrecker a of beer and cans three empty beer have the defendant s truck towed to inventory search of the defendant the passenger side floorboard unopened cans on the floor In truck of beer can CD a s Captain Bourgeois ice chest Styrofoam a opened empty one Rouge City Police containing He also found two he found case seven a small or bag of marIJuana Corporal Duncan arrived Duncan detected swaying been the scene strong odor of alcohol and on spoke before The defendant recorded The defendant driving performed poorly by the mounted video which videotape Corporal s Duncan was played forgot The defendant on at on s three speech bloodshot responded taken a at to The tests Corporal Duncan trial does microphone trial that was prior on jury his himself The defendant refused both trial the defendant all three camera for the to turn Duncan testified intoxicated Corporal breath and from his eyes and in the affirmative Duncan gave the defendant the three standardized field Corporal Corporal the defendant Duncan Mirandized the defendant and asked him if he had Corporal drinking to the defendant He further observed the defendant had slurred person was a on in his the breath not before sobriety tests tests were police unit The sobriety s contain audio because administering experience the the defendant tests was police station where he urinated test DWI convictions and were a urine drug screen test on At introduced into evidence ASSIGNMENTS OF ERROR NOS 1 2 and 3 In these insufficient was no to assignments of error support the conviction chemical evidence to the defendant argues the evidence Specifically was the defendant contends there support his intoxication and the videotape of his field 3 sobriety drugs tests failed to show he was impaired or under the influence of alcohol I A conviction based See U S Process review for the insufficient evidence on Const amend XIV La of the evidence sufficiency viewing the evidence in the light art uphold to a stand I Const favorable most cannot to the as The standard of 2 S it violates Due conviction is whether prosecution any rational trier of fact could have found the essential elements of the crime reasonable doubt Jackson L Ed 2d 560 10 La or La 11 29 06 946 So 2d 654 660 State testing for reasonable doubt When provides v that the fact finder reasonable hypothesis 1st Cir 6 21 02 analyzing must 1 of innocence The crime of means of any Mussall 523 So 2d 1305 1308 09 incorporated in Article 821 is an State operating motor circumstantial evidence La R S 15 438 v Patorno 01 2585 pp 4 5 La App 144 822 So 2d 141 operating Ordodi 06 0207 p v be satisfied the overall evidence excludes every Louisiana Revised Statutes 14 98 A State the overall evidence both direct and circumstantial standard for objective 821 B art The Jackson standard of review 1988 a Virginia 443 U S 307 319 99 S Ct 2781 2789 61 v See also La C Cr P 1979 beyond vehicle provides in pertinent part a vehicle while intoxicated is the aircraft watercraft vessel or other of conveyance when 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 a centimeters of blood I In his first second and third evidence for new acquittal evidence assignments of the defendant error asserts respectively the insufficient to support the conviction the trial court erred in denying the motion trial and the trial court erred in denying the motion for postverdict judgment of was The court shall grant See La C Cr P art C Cr P art 851 was 1 851 denied trial when the verdict is contrary to the law and the The defendant filed a motion for new trial under La appeal addresses the sufficiency of the evidence Sufficiency is properly raised by motion for postverdict judgment of acquittal not a motion for new trial Under La C Cr P art 851 the trial court can consider only the weight by of the evidence not the sufficiency See State v Williams 458 So 2d 1315 1324 La App 1st Cir 1984 writ denied 463 2d So 1317 La 1985 Accordingly we find no abuse of discretion 1 which a new The defendant s a in the instant matter of the trial court s denial ofthe defendant s motion for 4 new trial In order to convict an accused of prove that the defendant influence of alcohol State 743 So 2d 1269 operating was while intoxicated the State need driving Worachek 98 2556 p 8 La v the State did test However blood breath intoxication Intoxication with its are determined independent field sufficient on a to case sobriety Furthermore test may DWI conviction State an samples witness a case tests given his refusal urine or support by of any scientific while intoxicated a 1st Cir 11 5 99 App to give are not basis are may or Some sufficient officer to behavioral support a La App must manifestations charge of driving subjective opinion that s an What behavioral testify charge of driving while intoxicated a 07 1972 p 7 Parry breath necessary to prove a failed subject constitute sufficient evidence of intoxication v a attendant behavioral manifestations is observable condition about which be under the any chemical evidence at trial to prove provide not intoxication manifestations was 1274 The defendant argues in his brief that Uflne vehicle and that he motor a only to 1st Cir 3 26 08 support a 985 So 2d 771 775 The defendant contends in his brief that because of the lack of chemical evidence the State relied According to on the the defendant the under the influence of alcohol sobriety with tests conducted videotape of the defendant videotape not field show that he sobriety was tests impaired or He further maintains that the standardized field by Corporal Duncan were not performed in accordance specified procedure which could compromise the validity of the results Corporal Duncan testified at trial the defendant three of the field sobriety tests defendant exhibited five of the which requires a performed poorly On the horizontal gaze nystagmus HGN defendant exhibited all six clues of test did s impairment eight person to hold clues of one leg 5 On the walk and impairment out and count to On the on all test the turn test the one leg stand thirty the defendant on three occasions put his the third failed attempt On cross leg down after Duncan Corporal of Corporal Duncan Corporal Duncan testified that when to from the Corporal one second suspect s testing to for to Duncan should take tracking further testified that when or testing stimulus is held for Duncan indicated that if the test Corporal exhibited all six clues of impairment on intoxicated test is invalid if the determination that the defendant rely on only one test Our review of the minimal swaying by from the mounted 2 The manual was was to be videotape s nose and was fifteen inches to seconds per eye two at seconds held for four seconds on test He test that correct what was indicated in testified that he has determines if on cross seconds a not person is examination does are not used In his Corporal Duncan testified that he totality of all of the circumstances intoxicated but considered the testing Duncan Corporal approximately He also testified that the 1998 manual used indicate that the HGN to pre test subject two example testified that the defendant Duncan only For compromised was the HGN read in any manual that the HGN test is the was a 2 certain for distinct nystagmus validity was based validity of the HGN On redirect examination not test equal tracking the manual impeach to attempt twelve inches from the According and the nose the manual then the did DWI to The manual however indicated that the stimulus is not 1998 manual entitled a review however the stimulus should be held twelve maximum deviations the pen Corporal After testimony regarding the HGN the pen should be six tracking takes asked s counting the test stopped Sobriety Testing portions the few seconds of a examination defense counsel used Detection in Standardized Field for nystagmus only of the defendant s sobriety tests revealed there the defendant Because of the distance of the defendant camera and somewhat poor not introduced into evidence 6 quality of the video we could not determine whether the defendant had bloodshot eyes no audio speech we was could not slurred determine whether to attempted perform the attempts he held out his left leg before his leg the dropping defendant appeared toward the walk the camera as to to walk before very guilty ground Finally as and defendant was not true testified rejected the HGN intoxicated The or three seconds at the walk and turn test the He then one way to Near the camera slightly of the State testimony Corporal the appeared hypothesis of innocence that heard the the most the defendant stumbled jury accepted jury test On each of his three test away from the defense Whether by Corporal to Following the turning somewhat off balance camera was the defendant s slightly off balance the required nine steps verdict indicates the witnesses extent on two briefly of his nine steps away from the The leg stand one nine steps the other way required beginning impairment simply not perceptible from the videotape is defendant what to Duncan first administered the HGN test Corporal the defendant exhibited any clues of Duncan or Similarly because there Duncan s s the testimony including the discrepancies between his testimony and the alleged information in the 1998 DWI manual The standardized field field sobriety tests jury sobriety testing speech s breath and the red bloodshot eyes and testified that while he was a one that he was a given thousands of strong odor of alcohol emanating from the The defendant also had slurred swayed while standing at one was time was the Commander of the DWI Task driving behind defendant drift several times in his truck from At testify Duncan testified that when he first made pores of his skin Captain Bourgeois who Force Duncan instructor and that he had driving with the defendant there defendant Corporal Duncan testified the defendant admitted to him he Corporal consumed three beers before contact also heard one the defendant side of the road point the defendant drifted off of the road 7 onto he observed the to the other side the grassy shoulder According Captain Bourgeois the defendant continued this erratic driving for to several minutes defendant did pull not but continued over Bourgeois activated his siren continued to vehicle s the side of his truck odor of alcohol sway as been he as he stood there unopened three empty beer Based Duncan as on well cans on the as The trier of fact is free of the Moreover accept was or when there is resolution of which depends trier of fact determination of the appellate factfinder review s Cir 9 25 98 as a An of the appellate determination of 721 So thirteenth juror s truck of beer a on grabbed very strong speech became an steadily that he had ice chest with He also found two 932 Captain Bourgeois sobriety the time he in whole or in part the of the evidence weight will State to not v are be jury was not Taylor could have pulled over the matters credibility of the its sufficiency evidence is 97 2261 Corporal testimony of any reweigh the evidence not The subject to overturn pp 5 6 La to a App 1st constitutionally precluded from acting assessing what weight 8 given and about factual determination of the a We the tests at weight court guilt 2d 929 in can s intoxicated reject upon matter one detected Captain Bourgeois conflicting testimony witnesses the s is of testimony of the field videotape to he defendant also observed the defendant empty open the front his door and held The defendant to When over the floor of the truck entirety the one pulled of his vehicle onto found in the defendant rationally concluded the defendant witness grabbed The defendant admitted of beer and cans rear Captain Bourgeois Captain Bourgeois spoke the from the defendant emanating Captain The defendant slowed down but to step the lights driving was Captain Bourgeois of times drinking Captain Bourgeois seven or couple a to the defendant As the defendant made his way toward slurred he as drive for about another three blocks before he Captain Bourgeois more drift to couple of times a Captain Bourgeois asked the defendant of activated his emergency Captain Bourgeois When to give evidence in criminal cases See State v Mitchell 99 3342 p 8 La 772 So 2d 78 83 10 17 00 that the record contains evidence that conflicts with the trier of fact does State s render the evidence testimony accepted by accepted by the trier a of fact insufficient Quinn 479 So 2d 592 596 La App 1st Cir 1985 v After jury not The fact a We verdict to the favorable reasonable review of the record thorough convinced that are State doubt find the evidence supports the we the evidence in the viewing light any rational trier of fact could have found and to the exclusion innocence that the defendant guilty was reasonable of every of operating most beyond a of hypothesis vehicle while intoxicated a fourth offense This assignment of error is without merit ASSIGNMENT OF ERROR NO 4 In his fourth imposing A make a an excessive thorough written 881 1 E assignment or shall oral motion to reconsider his the failure 1 to the defendant from make 94 1563 banc per curiam 2 20 98 2 see La as 1st Cir App also State 708 So 2d 808 However vacating p 809 v an 15 12 of 95 error motion to La to the not arts reconsider sentence on the defendant would be reviewed See State 2d 1141 pp 2 3 following assignment 9 a 667 So 97 0902 remanding for resentencing Under La C Cr P objection Ordinarily writ denied 98 0767 will be discussed in the the sentence and LeBouef file or raising claim of excessiveness a sentence procedurally barred from having this assignment Duncan erred in review of the record indicates that defendant s counsel did preclude appeal including court sentence and 881 2 A sentence of error the defendant argues the trial 7 2 98 La 1143 App v en 1 st Cir 724 So 2d 206 of error because this issue is moot we are ASSIGNMENT OF ERROR NO 5 In his fifth when it assignment the defendant argues the trial error immediately sentenced him after ruling of postverdict judgment failed court of to motions without The trial acquittal obtaining any court erred See La C Cr P art waivers of delay by him by sentencing the defendant without waiting twenty 853 art new Nothing 873 trial new The trial court to subsequent trial and postverdict judgment of also erred when it ruled sentencing the on the See La defendant in the record indicates the defendant waived this time under Article 873 period Prejudice will not be found if the defendant has not challenged imposed and the twenty four hour delay violation is merely noted error trial and new delay sentencing for twenty four hours following denial of the defendant s motion for C Cr P erred the defendant contends the trial Specifically four hours after the denial of his motions for acquittal his motions for on court under La C Cr P 1st Cir failure 1992 to art 920 2 State In State v Augustine Supreme Court has held that four hour delay appeal Because See State v to is not harmless delay 555 So Louisiana inappropriate Ducre However the defendant has observe the twenty four hour imposed v error a assigned us court to CONVICTION AFFIRMED as s failure App 10 to the trial the sentence La App court s sentence 1990 the observe the twenty challenges the sentence challenge sentence we at on find it this time 1st Cir 1992 SENTENCE REMANDED FOR RESENTENCING error 1333 1334 vacate review the merits of the excessive Claxton 603 So 2d 247 250 La review for and has also contested the if the defendant Augustine requires on sentence 604 So 2d 702 709 La 2d 1331 trial the VACATED AND
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