Opinion
No. 21,132-KW.
September 27, 1989.
APPEAL FROM THIRTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF RED RIVER, STATE OF LOUISIANA, HONORABLE RICHARD N. WARE, J.
James R. Phillips, Bossier City, for appellant.
William J. Guste. Jr. Atty. Gen., Baton Rouge, William R. Jones, Dist. Atty., Robert E. Bethard, Asst. Dist. Atty., Coushatta, for appellee.
Before MARVIN NORRIS and LINDSAY, JJ.
Before MARVIN, LINDSAY, NORRIS, HALL AND HIGHTOWER, JJ.
In exercise of our supervisory jurisdiction we ordered the record to review the sufficiency of the evidence upon which Donald wren was convicted of DWI 2d offense.
Finding the evidence sufficient to convict beyond a reasonable doubt, we affirm Jackson v. Virginia, 443 U.S. 307, 99 S.Ct 2781, 61 L.Ed.2d 560 (1979).
The state did not prove the exact time defendant's pickup was driven in the ditch. Defendant relies on this lack of evidence (who was driving when) to premise his argument that the evidence otherwise is legally insufficient, citing State v. Lindinger 357 So.2d 500 (La. 1978), and state v. Graham 422 So.2d 123 (La. 1982). The evidence otherwise distinguishes defendant's circumstances from the cited cases and convicts the defendant.
FACTS
Deputy Sheriff Adams and State Trooper Carson were dispatched to the scene of a reported one-vehicle accident on October 9, 1988 in front of a church one mile north of Coushatta on U.S. Hwy. 71. Deputy Adams arrived first and found defendant and another apparently outside of defendant's pickup which had run into the ditch in front of the church. Both individuals appeared intoxicated. Deputy Adams inquired "how the accident happened [and] who was driving." Adams testified that defendant said it was his vehicle and he was operating it at the time [of the accident].
Trooper Carson arrived shortly after Adams he obtained defendant's driver's license and vehicle registration from deputy Adams and "asked for the driver." defendant identified himself.
I observed both of the individuals. They both appeared to be intoxicated. . . . After being able to observer [defendant] . . . any by his statement that he was driving the vehicle . . . [defendant] was given his rights per Miranda . . . . at that time I continued on . . .
. . . three [filed sobriety tests] . . . were done at the scene [and defendant was placed under arrest] . . .
Trooper Carson's Intoxilyzer test, taken at the sheriff's office at 9:15 p.m., showed defendant's blood alcohol was .298 grams percent.
Trooper Carson said he twice questioned defendant about drinking and driving, once immediately upon my arrival at the scene and once after the test was given here at the sheriff's Office . . . The response both times was the he had been driving, and he had been drinking."
Q. Did he know how much he had been drinking?
A. No, sir. He said he had been drinking beer, had been working on a mobile home most of the day, and he wasn't sure how much.
In an ice chest in the cab of defendant's truck trooper Carson found one unopened can of beer.
The trial court concluded:
[Defendant], for whatever reason decided to tell the trooper . . . after Miranda warnings had been given, that he had in fact been drinking prior to the driving of the vehicle. I think he convicted himself. and therefore, I have no hesitance in finding [him] guilty . . .
The argument that defendant could have consumed enough beer to reach .298 grams percent blood alcohol after he drove his truck in the ditch 24 hours . . . or 16 hours before the officers got there" is only a possible hypothesis of innocence. This hypothesis was found by the trial court impliedly, and is found by us, expressly, to be unreasonable. See State v. McFadden, 476 So.2d 413 (La.App. 2d Cir. 1985,) writ denied; LRS 15:438.
We agree with the trial court's conclusions notwithstanding that the only exact time on October 9, 1988 that is mentioned in the record is 9:15 p.m. when Trooper Carson administered the intoxilyzer test to defendant in the sheriff office in Coushatta on that date.
That time 9:15 p.m., on that day, October 9, 1988 corresponds to defendant's statements to Trooper Carson that he had been drinking and driving, that "he had been drinking beer, had been working on a mobile home most of the day, and he wasn't sure how much [beer he had been drinking]." Defendant told Deputy Adams that he was operating the truck at the time it ran into the ditch
This "accident" occurred on a U.S. Highway(71) one mile north of Coushatta after defendant had spent most of the day working and drinking beer. The "accident" was reported to traffic authority or authorities, who responded. Defendant did not cross-examine the officers about empty beer cans in the truck or at the scene. Only one can of beer is mentioned by the trooper who looked into the truck and the ice chest within. After field sobriety tests and Miranda warnings were administered a defendant was taken to the Sheriff's office about one mile away where at 9:15 p.m. the intoxilyzer test was administered.
Defendant's circumstances are distinguished from Lindinger. In Lindinger's truck the trooper found a "fifth a whisky, three-quarters gone. . . ." 357 So.2d at 501. In Graham affirming a 2d degree murder conviction, a defendant's arguable and possible hypothesis on innocence was found "unlikely," "unusual," and therefore not are "reasonable hypothesis." compare the respective facts in the several DWI cases cited in State v. Phinney, 460 So.2d 1188 (La.App. 2d Cir. 1984). compare State v. Trahan, 534 So.2d 73 (La.App. 3d Cir. 1988) the result in each case, of course, is governed by its own circumstances. Phinney. supra, at 1189.
The result here is that by his admissions to the officers, this defendant convicted himself beyond a reasonable doubt.
DECREE
AFFIRMED.
Norris, J., dissents and assigns written reasons.
ON APPLICATION FOR REHEARING
Rehearing denied.
I respectfully dissent.
The problem in this case arises from the state's heavy burden of proof. Cited but not elaborated on in the majority opinion is the Jackson v. Virginia rule, which applies both to direct and circumstantial evidence. a reviewing court must took at conflicting direct evidence in light most favorable to' the state. The facts established from the direct evidence thus viewed, and those inferred form the circumstances must still be sufficient to persuade a rational factfinder beyond a reasonable doubt that the defendant committed each element of the offense. see State v. Sutton, 436 So.2d 471 (La. 1983). The circumstantial evidence rule LSA-R.S. 15:438 does not establish a stricter standard of review but emphasizes the need for careful observance of the usual standards and provides a helpful methodology for analyzing cases that hinge on circumstantial evidence. State v. Chism, 436 So.2d 464 (La. 1983). In the case of DWI, the essential elements include proof beyond a reasonable doubt that the accused was operating a vehicle while under the influence. State v. Fontenot, 408 So.2d 919 (La. 1982).
Despite well-intentions speculations in the majority opinion, the record does not show when, how or by whom this "accident" was "reported." Given this lack of evidence, it is not more reasonable to assume that the accident occurred minutes than hours before the officers arrived, although the court freely weighs the probability of these hypotheses. The only direct evidence was from Trooper Carson. According to him wren said "he had been drinking had he had been driving." This hearsay statement, subject to interpretation establishes only that wren had done both sometimes earlier in the day. The trial court should have been reluctant to "interpret" it to prove beyond a reasonable doubt that Wren had been driving while under the influence. It is also reasonable to assume from this evidence that wren became intoxicated after the accident. See State v. Lindinger, 357 So.2d 500 (La. 1978) State v. Trahan, 534 So.2d 73 (La.App. 3d Cir. 1988) the evidence to defeat this reasonable hypothesis, if available, was not adduced.
The majority opinion correctly states that each case is to be decided on its own facts However, the alleged distinction from Lindinger is trifling and there is no effort at all to distinguish Trahan. The tenor of these cases is that the state's burden of proof beyond a reasonable doubt must be scrupulously upheld. The evidence here presented in my opinion, does not satisfy this heavy burden of proof.
I would grant the writ, make it peremptory and reverse the conviction.