State Of Louisiana VS Charles Lee Wicker
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 KA 0705 STATE OF LOUISIANA VERSUS CHARLES LEE WICKER Judgment Rendered October 29 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case Number 3 09 0181 Honorable Richard D Anderson Presiding Hillar C Moore III Counsel for Appellee District Attorney Dylan C Alge Assistant District Attorney Baton Rouge LA State of Louisiana Frederick Kroenke Counsel for Defendant Appellant Louisiana Appellate Project Charles Lee Wicker Baton Rouge LA BEFORE PARRO GUIDRY AND HUGHES JJ 1 8 C47 GUIDRY J The defendant Charles Lee Wicker was charged by bill of information with one count of fourth offense driving while intoxicated DWI a violation of La S 98 R 14 and E and pled not guilty He waived his right to a jury trial and A following a bench trial was found guilty as charged He moved for a post verdict judgment of acquittal but the motion was denied He was sentenced to seventeen years at hard labor with the first three years of the sentence to be served without benefit of probation parole or suspension of sentence He was also fined 5 000 and the court ordered the seizure impoundment and sale at auction of his vehicle which he was operating at the time of the instant offense He now appeals contending that the trial court erred in denying the motion for postverdict judgment of acquittal FACTS On January 2 2009 the Zachary Police Department operated a DWI checkpoint on Plank Road north of Louisiana Highway 64 According to Zachary Police Department Reserve Officer Michael Kimble the defendant drove up to the checkpoint was asked if he had consumed any alcoholic drinks that evening and answered affirmatively Officer Kimble also detected an odor of alcohol coming from the defendant vehicle Officer Kimble ordered the defendant to turn off his s vehicle and walked with him to Zachary Police Department Officer Shane White who was in a nearby parking lot for field sobriety testing 1 Predicate 1 was set forth as the defendant January 25 2006 conviction under Nineteenth s Judicial District Court Docket 10050077 for DWI on July 4 2005 Predicate 42 was set forth as the defendant April 3 2002 conviction under Twenty ninth Judicial District Court Docket s 020181 for DWI on January 23 2002 Predicate 3 was set forth as the defendant December s 19 2005 conviction under Twentythird Judicial District Court Docket 10064 for DWI on November 10 1996 The sentencing minutes are inconsistent with the sentencing transcript concerning the portion of the sentence imposed without benefit of probation parole or suspension of sentence When there is a discrepancy between the minutes and the transcript the transcript must prevail State v 2 Officer White noticed the defendant walked with a little sway or little arc He also detected a strong odor of an alcoholic beverage on the defendant breath s Officer White administered the horizontal gaze nystagmus test to the defendant and observed all six clues of intoxication as well as the fact that the defendant swayed as he stood The defendant repeatedly started the walkandturn test before being instructed to start He also failed to touch his heel to his toe during the test took the wrong number of steps and stepped off the line three times Additionally he repeatedly tried to start the oneleg stand test too early and then put his foot down three times within ten seconds Officer White also noticed that the defendant s speech was somewhat slurred Officer White arrested the defendant for suspicion of DWI and transported him to the Zachary Police Department According to Officer White the defendant refused to sign the form for chemical testing of his breath for alcohol The defendant also indicated he was taking blood thinners for his heart and fluid and lungs He then claimed he had not been drinking Officer White indicated that in his personal life he had been around individuals who had consumed alcoholic beverages and in his career as a law enforcement officer he had made DWI arrests based on his personal and professional experience the defendant was intoxicated on the night in question The defendant also testified at trial He denied drinking any alcoholic beverages on the day of the DWI checkpoint He also denied telling any police officers that he had consumed alcoholic beverages He claimed he performed poorly on the field sobriety tests because of circulation problems in his legs and because the police did not allow him to get his walking stick He also claimed he was willing to submit a breath sample for testing but the police told him to forget it Lynch 441 So 2d 732 734 La 1983 3 PREDICATES 1 AND 2 PROOF OF IDENTITY In his sole assignment of error the defendant contends the State failed to prove his identity as the same person convicted in predicates 1 and 2 He does not contest his identity as the person convicted in predicate 3 In Louisiana proof that a person of the same name has been previously convicted does not constitute prima facie evidence that the two persons are the same The State must offer additional proof that the accused is the same person as the defendant previously convicted Various methods may be used to prove that the defendant on trial is the same person whose name is shown as the defendant in the evidence of a prior conviction such as by testimony of witnesses by expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted by photographs contained in a duly authenticated record or by evidence of identical driver license number sex race and date of birth The mere s fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity See State v Pitre 532 2d So 424 426 La App 1st Cir 1988 writ denied 538 So 2d 590 La 1989 A thorough review of the record indicates that the State sufficiently established the defendant was the same person convicted in predicates 1 and 2 The bill of information filed in the instant offense identified the defendant as Charles Lee Wicker BM DOB 12 driver license 1954 26 s LA 3630866 and listed his address as 23817 Plank Road Zachary Louisiana 70791 Further Officer White indicated that when the defendant stopped at the DWI checkpoint he stated he was coming from his home at 23817 Plank Road Additionally the defendant mother testified at trial that her address was 23817 s Plank Road Zachary and that the defendant had lived with her all of his life 4 In connection with predicate 1 the State introduced into evidence a bill of information a minute entry and a transcript concerning a January 25 2006 guilty plea to second offense DWI in the 19th Judicial District Court Docket 1005 0077 Judge Erwin The predicate 1 bill of information identified the defendant charged as Charles Lee Wicker B DOB 12 and listed his address M 54 26 as 23817 Plank Road Zachary Louisiana 70791 In connection with predicate 2 the State introduced into evidence a bill of information a rightswaiverguilty plea form and minutes concerning an April 3 2002 guilty plea to third offense DWI under the Twentyninth Judicial District Court Docket 02 0181 The predicate 2 bill of information identified the defendant charged as CHARLES WICKER DOB 12 and listed his 1954 26 address as 23817 Plank Road Zachary Louisiana 70791 Further during his testimony at trial the defendant conceded he had pled guilty to DWI before Judge Erwin right down the hall The State asked the defendant if it needed to approach him and show him the documentation concerning predicate offenses 1 2 and 3 The defendant replied No ma I remember am The State then asked the defendant if he was admitting that these are all you and he replied Yes ma am This assignment of error is without merit REVIEW FOR ERROR Initially we note that our review for error is pursuant to La C art 920 P Cr which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere 3 Neither the bill of information nor the rightswaiverguilty plea forms were marked with a docket number However the minutes which were marked with the docket number correctly matched the defendant the offense the sentence and the filing date of those documents 5 inspection of the pleadings and proceedings and without inspection of the evidence La C art 920 P Cr 2 The trial court did not wait twentyfour hours after denying the motion for a postverdict judgment of acquittal before imposing a sentence See La C P Cr art 873 State v Wilson 526 So 2d 348 350 La App 4th Cir 1988 writ denied 541 So 851 La 1989 La C art 873 refers to both motions for 2d P Cr a new trial and in arrest of judgment when it requires the twentyfour hour delay Thus the trial court failure to delay after denying s a motion for postverdict judgment of acquittal should be analogously treated However the issue was neither assigned as error nor was the sentence challenged nor does the defendant cite any prejudice resulting from the court failure to delay sentencing Thus any s error that occurred is not reversible See State v Augustine 555 So 2d 1331 1334 La 1990 CONVICTION AND SENTENCE AFFIRMED in
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