Opinion
NO. 22-KP-444.
12-29-2022
STATE of Louisiana v. Joseph C. MOUTON, II.
COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Thomas J. Butler . COUNSEL FOR DEFENDANT/RELATOR, JOSEPH C. MOUTON, II, Joseph B. Cockrell . Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson.
COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, Thomas J. Butler .
COUNSEL FOR DEFENDANT/RELATOR, JOSEPH C. MOUTON, II, Joseph B. Cockrell .
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson.
WICKER, J.
Defendant/Relator Joseph C. Mouton, II seeks supervisory review of his misdemeanor conviction for driving while intoxicated ("DWI"), second offense, in violation of La. R.S. 14:98(A). He claims that the trial court erred in denying his motion to suppress the results of the breathalyzer test and that there is insufficient evidence to support his conviction. For the reasons expressed herein, we find no abuse of the trial court's discretion in the denial of Mr. Mouton's motion to suppress. We also find that the State failed to submit sufficient evidence to prove Mr. Mouton's identity in the alleged predicate offense and as a result the State failed to prove a valid prior conviction in order to support a conviction for DWI, second offense in this case. Although the evidence is insufficient to support Mr. Mouton's conviction for DWI, second offense, the evidence is sufficient to support the lesser and included responsive verdict. Therefore, we vacate Mr. Mouton's conviction and sentence, modify the verdict, render a judgment of conviction for DWI, first offense and remand the matter to the trial court for resentencing. Furthermore, review of the record reflects patent errors exist as it relates to Mr. Mouton's sentence; however, these sentencing issues are rendered moot in light of our findings on the substantive issues.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 15, 2020, Mr. Mouton was charged with driving while intoxicated, second offense, in violation of La. R.S. 14:98(A) and 14:98.2(A)(1). On July 20, 2020, Mr. Mouton filed a motion to suppress evidence, which the trial court considered and denied on June 9, 2022, the same day the bench trial in this matter was held. The following facts as to the underlying offense were adduced at the June 9, 2022 bench trial:
On the evening of January 27, 2020, Pamela Lucas ("Ms. Lucas") was employed as a cashier at the Circle K gas station located at Causeway and Galleria. She testified that part of her job responsibilities is to clean the parking lot and to "keep[] an eye on the outside." Ms. Lucas explained that while she was sweeping near the front door that evening, she saw a red Chevrolet Corvette "running" with its lights on. She testified that she did not know when the vehicle arrived at the gas station, but as soon as she noticed it, she went to inspect the situation. Upon approaching the vehicle's driver side window, Ms. Lucas observed a male, whom she identified at trial as being the defendant, sitting in the driver's seat and appeared to be asleep. She attempted to wake him up by knocking on the window, but she was unsuccessful. Ms. Lucas testified that she was afraid the vehicle would "end up going through the glass and running over someone." She was also concerned because the gas station was not in the best area, and he drove a nice vehicle. Ms. Lucas indicated that she did not recognize Mr. Mouton as ever having frequented the gas station. Concerned for his well-being and the safety of others, Ms. Lucas called 911, and the police were dispatched to the scene. Although she could not recall if she spoke with police that night, Ms. Lucas remembered observing the responding officers conducting a field sobriety test. She testified that she was "surprised they were able to get him up `cause [she] couldn't." She recalled that based on her observations, Mr. Mouton did not perform well on the field sobriety tests as she stated that Mr. Mouton was "kind of falling around a little bit."
On cross-examination, Ms. Lucas was questioned as to whether she was aware if Mr. Mouton exited his vehicle, went to the trash can, or went to the dumpster. She denied having any knowledge of whether Mr. Mouton did any of these things. Similarly, Ms. Lucas denied seeing Mr. Mouton pull into the parking lot and could not state whether someone dropped Mr. Mouton off and left him at the gas station. She also indicated that she did not know if he had been drinking or smoking while he was in the parking lot.
The State then called Sergeant David Spera ("Sergeant Spera"), a specialist in DWI investigations, employed by the Jefferson Parish Sheriff's Office for 25 years. He explained that he is a certified intoxilyzer operator and is certified in standardized field sobriety tests. He further testified that he is a field sobriety instructor, having handled multiple DWI violations, and attended the Advanced Roadside Impairment Detection ("ARID") course offered to law enforcement.
Sergeant Spera testified that on January 27, 2020, at approximately 9:56 p.m., he was dispatched to the Circle K gas station located at Causeway and Galleria. Upon his arrival at 9:58 p.m., he observed Mr. Mouton seated behind the wheel of a red Corvette. He stated that the vehicle was parked in front of the doors of the gas station, and it was "still running." When he arrived at the scene, other officers were already there, and Mr. Mouton was awake but still sitting in his vehicle. Sergeant Spera testified that he approached the vehicle to speak with Mr. Mouton and observed that he appeared a little disoriented. After being advised by other officers that Mr. Mouton had just awakened, Sergeant Spera asked him to step out of the vehicle in order to begin his investigation. He testified that Mr. Mouton had to lean against the vehicle in order to balance himself and that he appeared unsteady on his feet.
While speaking with Mr. Mouton, Sergeant Spera learned that he had come from the Rivershack, a tavern in the Shrewsbury area of Metairie. The sergeant relayed at trial that Mr. Mouton said he had a few drinks with his dinner, but that Mr. Mouton did not know what time he arrived at the Rivershack or when he left. Sergeant Spera further testified that Mr. Mouton admitted to him that he had driven his vehicle from the Rivershack to the Circle K gas station. When asked if anyone else was in the vehicle, Sergeant Spera responded in the negative. Sergeant Spera stated that Mr. Mouton had slurred speech, but he was able to communicate.
In his report, Sergeant Spera indicated that Mr. Mouton smelled of alcohol, describing the odor as moderate. He explained that "moderate" in the report, meant that he could detect the odor from an arm's length distance. He further stated that while they were talking, he could smell alcohol coming from his breath and person.
Sergeant Spera testified that he advised Mr. Mouton that he was under investigation for DWI and administered a field sobriety test. The first test performed was the Horizontal Gaze Nystagmus test. At trial, Sergeant Spera stated that Mr. Mouton performed poorly, that he "noticed a lack of smooth pursuit in both of his eyes." Sergeant Spera testified that he subsequently administered a walk and turn test. He explained that during the instruction phase of the test, Mr. Mouton could not maintain his balance. During the execution phase of the test, Mr. Mouton stopped walking to steady himself, missed heel-to-toe steps, stepped off the line, and raised his arms. The third test Sergeant Spera administered was the one-leg stand test. He stated that Mr. Mouton confirmed that he understood the test instructions before he began and that he recalled Mr. Mouton raised his arms for balance, put his foot down, and swayed while he was balancing. He stated that Mr. Mouton displayed three of the four clues that "would be evident if the subject is going to perform poorly."
Sergeant Spera testified that Mr. Mouton was then arrested and taken to the nearest police station in order to perform a breathalyzer test. When they arrived, Sergeant Spera advised Mr. Mouton of his rights pertaining to the chemical test for intoxication, to which Mr. Mouton indicated that he understood. Sergeant Spera administered the breathalyzer test and Mr. Mouton willingly participated in taking the test. At trial, Sergeant Spera identified the test results and the Machine Recertification Form. He testified that the machine he used to perform the test requires recertification every four months. The particular machine Sergeant Spera used was certified on September 26, 2019, and recertified January 30, 2020. Additionally, he confirmed that Mr. Mouton's breathalyzer test occurred one or two days after the four-month certification period had lapsed. The test results indicated that Mr. Mouton's blood alcohol content was .136 percent.
Sergeant Spera also conducted the interview portion of the DWI packet. He relayed that he asked Mr. Mouton whether he was operating a motor vehicle, and Mr. Mouton stated that he was not. Sergeant Spera stated that Mr. Mouton explained that he was going home to Lafayette and that he had come from the Rivershack. He testified that Mr. Mouton did not provide a time or time reference as to when he left the Rivershack. According to Sergeant Spera, Mr. Mouton stated that he did not know what highway he was operating on, that he had two beers that night, and that he started drinking around 8:00 p.m. but did not know what time he stopped drinking. Sergeant Spera testified that Mr. Mouton explained that he stopped at the Circle K gas station because he was considering getting a room for the night instead of making the drive back to Lafayette. Mr. Mouton also denied feeling the effects of alcohol. Sergeant Spera further testified that he determined through the National Crime Information Center ("NCIC") System, that the vehicle, a 2006 Chevrolet Corvette, was registered to Mr. Mouton.
On cross-examination, Sergeant Spera testified that they found no evidence that Mr. Mouton had been drinking in his vehicle while in the Circle K gas station parking lot. He stated that no cans or bottles were noticed in the parking lot and that he did not see any alcoholic beverages or containers inside of the vehicle.
The trial court denied Mr. Mouton's motion to suppress and found him guilty as charged. On the same day, after defense counsel waived sentencing delays, the trial court sentenced Mr. Mouton to 180 days in jail, suspended, and placed him on active probation for a term of 18 months. The court imposed a fine of $750 and court costs. The conditions of Mr. Mouton's probation included the placement of an interlock device on Mr. Mouton's vehicle for 12 months, an interview with a social worker, a substance abuse evaluation, and 240 hours of community service. As a special condition of Mr. Mouton's probation, the trial court ordered that he not engage in the consumption of alcohol for a period of 18 months.
Mr. Mouton orally noticed his intent to file a writ and subsequently filed a written notice of intent, in which he requested that the execution of the sentence be stayed pending the outcome of this writ application. On June 22, 2022, the trial court granted the notice of intent and set the return date for August 15, 2022. On August 5, 2022, Mr. Mouton filed a motion for extension of time, which the trial court granted, setting a return date for September 20, 2022. Mr. Mouton's timely-filed writ application follows.
DISCUSSION
Mr. Mouton raises three assignments of error: (1) the evidence is insufficient to support a finding that he was operating his vehicle while impaired; (2) the evidence is insufficient to support a finding that he is the same defendant that was convicted of the alleged July 2019 predicate offense in Texas; and (3) the trial court erred in denying his motion to suppress the results of his breathalyzer test.
"When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence." State v. Hearold, 603 So.2d 731, 734 (La. 1992). The Louisiana Supreme Court explained:
When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.
On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial.
Id. Therefore, Mr. Mouton's assigned errors relative to the sufficiency of the evidence are addressed first.
Sufficiency of the Evidence
Mr. Mouton argues that the evidence is insufficient to support his conviction for DWI, second offense. He avers that there is no direct evidence that demonstrates that he was exercising any control or manipulation over the vehicle while he was intoxicated. Additionally, Mr. Mouton claims that the State failed to prove beyond a reasonable doubt that he was the same person who pled guilty to the predicate DWI offense in Montgomery, Texas.
He cites Ms. Lucas' testimony at trial that she did not know the time he arrived or how long he was present at the gas station, whether he drove or exited the vehicle when he arrived at the gas station, and if he threw away any beer cans or bottles in the gas station's trash can or dumpster. Mr. Mouton also calls into question the reliability of Ms. Lucas' testimony in that she testified that she observed the police conduct a finger-to-nose field sobriety test; however, Sergeant Spera contradicted her testimony, stating that the finger-to-nose field sobriety test was never performed. Mr. Mouton also points to similar issues with Sergeant Spera's testimony.
"In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt." State v. Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); see also State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
In State v. Cowden, 04-707 (La. App. 5 Cir. 11/30/04), 889 So.2d 1075, this Court stated:
A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. (Citations omitted).
Id., 889 So.2d at 1081-82.
When the State uses circumstantial evidence to prove the commission of an offense, La. R.S. 15:438 requires, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Mickel, 41 So.3d at 534. On appellate review, we are "not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt." Id.; State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La. App. 5 Cir. 1/27/04), 866 So.2d 973, 977.
Operating a Vehicle While Intoxicated
In the present case, Mr. Mouton was convicted of operating a vehicle while intoxicated, second offense, a violation of La. R.S. 14:98. The underlying offense, as set forth in La. 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 ... 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[.]
In order to convict an accused of driving while intoxicated, the State must prove that the defendant was operating a vehicle and that the defendant was under the influence of alcohol or drugs. Cowden, 889 So.2d at 1082. To convict a defendant of driving while intoxicated, second offense, the State must also show that the defendant had one other valid conviction of driving while intoxicated. State v. Washington, 498 So.2d 136, 139 (La. App. 5th Cir. 1986).
The first inquiry is whether a rational trier of fact could have found that the evidence was sufficient under the Jackson standard to show that defendant was intoxicated. "Intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify." State v. Vidal, 04-1139 (La. App. 5 Cir. 3/29/05), 901 So.2d 484, 487-88 (citing State v. Allen, 440 So.2d 1330, 1334 (La. 1983)). "It is not necessary that a DWI conviction be based upon a breath or blood alcohol test; the observations of the arresting officer may be sufficient to establish the defendant's guilt." Vidal, 901 So.2d at 488.
In this case, Ms. Lucas testified that Mr. Mouton appeared to be asleep in the driver's seat of his Corvette in the Circle K parking lot. Ms. Lucas knocked on the window and tried to open the door, but she was unable to wake Mr. Mouton. Ms. Lucas then called 911 and relayed that she believed Mr. Mouton was drunk because she was unable to wake him when she knocked on the window or pulled on the door. Additionally, Sergeant Spera testified that when he arrived and spoke with Mr. Mouton, he detected the smell of alcohol on Mr. Mouton's breath and person. He also noticed that Mr. Mouton's speech was slurred and that he had to lean against his vehicle to balance himself.
In State v. Landry, 463 So.2d 761, 764-67 (La. App. 5th Cir. 1985), this Court held that an arresting officer's observations that the defendant was staggering, leaning on his vehicle for support, slurring his speech, and smelling of alcohol, were sufficient to support his conviction for driving while intoxicated, despite the defendant's refusal to submit to a field sobriety test. Therefore, Sergeant Spera's objective observations on the scene are sufficient, on their own, to establish that Mr. Mouton was intoxicated. Nevertheless, Mr. Mouton admitted to Sergeant Spera that he had consumed two beers with his dinner at the Rivershack before driving to the Circle K gas station. Sergeant Spera also testified that Mr. Mouton performed poorly on all the field sobriety tests that were administered on the scene. Additionally, Sergeant Spera conducted a breathalyzer test that indicated that Mr. Mouton's blood alcohol level of .136 percent was above the legal limit. In light of the foregoing we find there was ample evidence to prove Mr. Mouton was intoxicated.
The second prong of La. R.S. 14:98 requires proof that the defendant was operating a vehicle while intoxicated. In State v. Barber, 19-286 (La. App. 5 Cir. 10/2/19), 282 So.3d 347, 350 (citing State v. Sims, 426 So.2d 148, 155 (La. 1983)), we held that "[t]o obtain a conviction under La. R.S. 14:98, the State must prove that the defendant did operate his vehicle while intoxicated on the day in question." This Court explained that "the term operating is broader than the term driving. Operating in some circumstances may mean handling the controls of a vehicle." Id. at 350. Therefore, "[i]n order to operate a motor vehicle, the defendant must have exercised some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion." Id. at 350-51. There is no requirement that "these actions have any effect on the engine, nor is it essential that the car move in order for the State to prove the element of operation." Id. at 351 (citing State v. Brister, 514 So.2d 205, 207 (La. App. 3rd Cir. 1987)). "A person begins to operate the instant he begins to manipulate the machinery of the vehicle for the purpose of putting the car in motion." Id.
In Sims, 426 So.2d at 151, the defendant was found guilty of operating a vehicle while intoxicated. The officer observed the defendant's vehicle parked on the shoulder of a public highway during the early morning hours. The headlights were on, and the motor was running. Additionally, the defendant was seated inside the car, behind the steering wheel, slumped over, and appeared to be asleep with the radio on. A subsequent inventory search revealed no alcoholic beverages were found inside the vehicle. On appeal, defendant argued that the State could not prove that he "operated" his motor vehicle while intoxicated. The Louisiana Supreme Court found that the hypothesis that the defendant parked his car and then consumed alcoholic beverages and became intoxicated was unreasonable given no alcoholic beverage containers were found in the vehicle. The Supreme Court further concluded that the hypothesis that defendant walked away from his vehicle to become intoxicated was equally unreasonable given the defendant was found passed out and slumped over the steering wheel of the car. The court determined that the only reasonable hypothesis was that the defendant operated the vehicle while intoxicated. Therefore, the court in Sims concluded that viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis had been excluded.
Here, testimony at trial established that Mr. Mouton was asleep behind the steering wheel of his car, with the key in the ignition, and the engine running. The evidence also established that Mr. Mouton was at the gas station alone. Ms. Lucas testified that even though she did not see the vehicle pull into the parking lot, she did not believe the vehicle was present when she first arrived at work. Ms. Lucas also indicated that she did not see Mr. Mouton enter the store. Further, Sergeant Spera testified that he did not observe any alcoholic beverage containers in Mr. Mouton's car. Mr. Mouton also admitted to Sergeant Spera that he had two beers that night at the Rivershack and then drove from the Rivershack to the Circle K gas station.
Although Mr. Mouton alleges otherwise, in light of the facts presented at trial, it is unlikely that someone else was driving Mr. Mouton's car or that Mr. Mouton became intoxicated after arriving and stopping at the gas station. Therefore, we find the evidence in this case is sufficient to prove Mr. Mouton's guilt, excluding every reasonable hypothesis of innocence, that he operated his vehicle while intoxicated, as contemplated under the statute.
Prior Conviction
Mr. Mouton also claims the evidence is insufficient to support his conviction as a second offender because the State failed to prove Mr. Mouton's identity as the offender in the alleged 2019 predicate offense. In order to prove a second offense of driving while intoxicated, the State must prove that the defendant has one other valid conviction of driving while intoxicated. The prior convictions that the State relies on in a repeat offense of La. R.S. 14:98 are essential matters of proof at trial. State v. Collins, 19-231 (La. App. 5 Cir. 6/19/19), 275 So.3d 401, 403. Proof that a person of the same name has been previously convicted does not constitute prima facie evidence that the defendant is the same person as the prior offender. Washington, 498 So.2d at 139 (citing City of Monroe v. French, 345 So.2d 23, 24 (La. 1977)). The State carries the burden of proving at trial, beyond a reasonable doubt, "the existence of the prior convictions and the defendant's identity as the prior offender, when charging a second, third, or subsequent offense." State v. Conner, 02-363 (La. App. 5 Cir. 11/13/02), 833 So.2d 396, 404.
"The State may establish identity by various means, such as the testimony of witnesses to prior offenses, expert testimony matching fingerprints of the accused with those in the record of prior proceedings, or photographs contained in a duly authenticated record." Id. (citing State v. Manson, 01-159 (La. App. 5 Cir. 6/27/01), 791 So.2d 749, 763); See also State v. Bush, 20-259 (La. App. 1 Cir. 12/30/20), 318 So.3d 151, 154 (finding evidence of identical driver's license number, sex, race, and date of birth competent evidence to establish identity). "The mere fact that the defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity." State v. Henry, 96-1280 (La. App. 4 Cir. 3/11/98), 709 So.2d 322, 326.
In Conner, this Court found the evidence was sufficient to prove the defendant, who was convicted of driving while intoxicated, had four prior DWI convictions. The State proved the defendant's identity in the previous convictions with witness testimony. The State presented the testimony of the defendant's previous attorneys as well as the judge from a previous conviction, who testified that the defendant was the same individual who committed the prior offenses. Id., 833 So.2d at 404-05.
In State v. Watson, 40,059 (La. App. 2 Cir. 9/21/05), 911 So.2d 396, 399, the State and the defendant jointly introduced documentary evidence of the defendant's prior convictions from out of state. Included in the evidence were the guilty pleas of the prior proceedings, which described the defendant by name, race, and date of birth. Other certified records from those proceedings referenced the defendant by social security number and driver's license. Id. Considering the evidence submitted in its entirety, the Second Circuit determined that the evidence was sufficient to establish the defendant's identity. Id.
The defendant in Watson challenged his conviction as a fourth offender, claiming the State could not prove his identity in the out-of-state predicate offenses, and even if the State could prove his identity, the guilty pleas the State relied on failed to prove that he knowingly and voluntarily entered the guilty pleas. The parties jointly introduced the evidence to meet their respective burdens at trial.
In this case, to prove Mr. Mouton's status as a second offender, the State offered the Montgomery County, Texas certified conviction packet, which included a guilty plea form showing that a "Joseph Clay Mouton II" pled guilty to a DWI offense on October 28, 2019. The conviction packet, admitted into evidence without objection, referred to the defendant as "Joseph Clay Mouton II" and described as a white male with a birthdate of March 19, 1964. While the conviction packet included the defendant's signature, it does not contain the individual's social security number. Aside from the certified conviction packet, the State offered no other evidence to establish a valid predicate offense. Addressing whether the State proved a valid prior DWI conviction, the trial court referenced the certified conviction packet that set forth the date of the offense and the date of sentencing. Comparing evidence of the predicate offense, the trial court pointed out that the breathalyzer test in this case listed Mr. Mouton as "Joseph C. Mouton" and shows a birthdate of March 19, 1964. The trial court also took judicial notice of Mr. Mouton's appearance with regard to his race, gender, and approximate age before determining that Mr. Mouton was the same defendant as in the prior DWI conviction.
The State also sought to admit a copy of the NCIC criminal record report of the arrest in this matter as well as the alleged predicate offense. Defense counsel objected to the report's admission on hearsay grounds, and the trial court sustained the objection. This Court may consider the entirety of the evidence when a defendant raises issues as to the sufficiency of the evidence and one or more trial errors, including inadmissible evidence which was erroneously admitted. See Hearold, 603 So.2d at 734. However, "inadmissible evidence" referenced in Hearold relates to evidence which was admitted at trial but is alleged on appeal to have been improperly admitted. State v. Simmons, 07-741 (La. App. 4 Cir. 4/16/08), 983 So.2d 200, 210. Given the NCIC report was deemed inadmissible, Hearold does not apply.
Courts have routinely held that the mere fact that the defendant on trial and the individual previously convicted have the same name does not meet the test for establishing identity. Henry, 709 So.2d 322; State v. Curtis, 338 So.2d 662, 664 (La. 1976). The State did not present testimony of any witnesses regarding the prior offense, expert testimony matching Mr. Mouton's fingerprints with that of the previous offender, or photographs contained in a duly authenticated record. Also, the predicate offense occurred out-of-state two years prior; thus, the driver's license number in the predicate offense does not correspond with Mr. Mouton's driver's license number in the instant matter. We do point out, however, that the signature of the defendant affixed to the Texas judgment of conviction, is signed "J. Clay Mouton II" as is Mr. Mouton's signature on the arrestee's rights form in the present matter. While the names, as they are signed, are the same and the signatures arguably have similar characteristics, it is unclear whether the trial court considered the similarities of the signatures in finding Mr. Mouton a second DWI offender. Beyond his race, sex, and birthdate, no other evidence was presented and admitted at trial to match Mr. Mouton with the identity of the person referenced in the certified conviction packet for the prior offense. Therefore, we find the State failed to submit competent evidence to prove beyond a reasonable doubt that Mr. Mouton is a second DWI offender.
"Louisiana courts have long held the law permits the trier of fact to compare for itself known and contested handwriting samples." State v. Juniors, 03-2425 (La. 6/29/05), 915 So.2d 291, 329-330; State v. Loyd, 52,814 (La. App. 2 Cir. 8/14/19), 278 So.3d 447, 454.
Although the evidence does not support the charged offense, the evidence does support a conviction for the lesser included responsive offense of driving while intoxicated, first offense. See State v. Vaughn, 03-1585 (La. App. 1 Cir. 5/14/04), 879 So.2d 772, 777 (finding "the discharge of the defendant is neither necessary nor proper when the evidence supports a conviction on a lesser and included offense which is a legislatively authorized responsive verdict"); State v. Davis, 98-1763 (La. App. 1 Cir. 5/14/99), 734 So.2d 896, 899; State v. Cichirillo, 440 So.2d 934, 937 (La. App. 2 Cir. 1983) (finding that the verdict showed the trial court necessarily found the elements of the lesser and included offense of operating a motor vehicle while intoxicated, first offense, was proven beyond a reasonable doubt). Our examination of the evidence relative to La. R.S. 14:98, discussed above, demonstrates that the evidence presented at trial sufficiently supports a conviction for the lesser and included offense of driving while intoxicated, first offense. Additionally, La. C.Cr.P. art. 821(E) states:
If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post-verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
Therefore, pursuant to La. C.Cr.P. art. 821(E), we vacate the conviction and sentence for driving while intoxicated, second offense, and modify the verdict and render judgment of conviction for driving while intoxicated, first offense.
Motion to Suppress
Lastly, Mr. Mouton avers that the trial court erred in denying his motion to suppress the results of his breathalyzer test. The evidence shows that he was found sleeping in his vehicle in the parking lot of the gas station. As such, Mr. Mouton contends that the parking lot is not publicly maintained and therefore cannot be considered a highway, as defined under La. R.S. 32:1(25). Mr. Mouton also argues that pursuant to La. R.S. 32:661(A)(2), the breathalyzer test may be administered only when an officer has reasonable grounds to believe that the person has been driving or has been in actual physical control of a motor vehicle on the public highway while under the influence of alcohol. Mr. Mouton argues that the State failed to prove that he was actually driving or operating the vehicle on a public highway or on a publicly maintained parking lot.
At the hearing on the motion to suppress, defense counsel argued that Ms. Lucas did not know how long defendant was present, and she did not see him drive up. In addition, defense counsel argued that the machine used to administer the breathalyzer test required recertification every four months, and certification of the breathalyzer used in this case had expired. Defense counsel cited State v. Zachary, 601 So.2d 27, 28-29 (La. App. 1st Cir. 1992), in support that a defendant is not subject to chemical testing when he is in a private lot and there is no credible proof that an individual was operating the vehicle outside of the lot.
Opposing the motion to suppress, the State asserted that Mr. Mouton admitted to Sergeant Spera that he drove from the Rivershack to the Circle K gas station, and no evidence was presented to suggest that anyone else drove the vehicle. Additionally, the State argued that recertification of the breathalyzer went to the weight of the evidence.
"A motion to suppress is available to question the admissibility of chemical test results that can result in the legal presumption of intoxication and the burden is on the [S]tate." State v. Meredith, 36,483 (La. App. 2 Cir. 12/11/02), 833 So.2d 1125, 1128 (citing State v. Tanner, 457 So.2d 1172 (La. 1984)). The trial court is afforded great discretion in ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Welch, 11-0274 (La. 4/29/11), 60 So.3d 603.
Here, Mr. Mouton argues that the trial court erred when it denied his motion to suppress, claiming that the breathalyzer test was illegally administered because he was not on a "public highway," and La. R.S. 32:661 did not apply. The implied consent statute, set forth under La. R.S. 32:661, states in pertinent part:
A. (1) Any person, regardless of age, who operates a motor vehicle upon the public highways of this state shall be
deemed to have given consent ... to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance ... in his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages...
(2)(a) The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964. The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.
(Emphasis added). Additionally, La. R.S. 32:661(C)(1) sets forth the procedure for informing an arrestee of his rights concerning testing. "Before the state may avail itself of the statutory presumption of a defendant's intoxication, arising from chemical analysis of his blood, it is incumbent on the state to show strict compliance with the detailed procedures adopted to secure the efficacy and reliability of the chemical test." State v. Letell, 12-180 (La. App. 1 Cir. 10/25/12), 103 So.3d 1129, 1145.
La. R.S. 32:661(C) states:
(1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(a) His constitutional rights under Miranda v. Arizona.
(b) That his driving privileges can be suspended for refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.
(d) That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964. The department may exclude this warning from the form required by this Paragraph until such time as a suspension for a test result shows a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964 is enacted by the legislature.
(e) That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R.S. 14:98.7 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated. [...]
(2) In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form. If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.
In Zachary, because the State admitted that their witnesses could only testify that they saw the defendant behind the wheel of his vehicle in the McDonald's parking lot, the State stipulated that "`he was not seen driving on the public highways, as in the road which McDonald's is on, only in the parking lot.'" State v. Zachary, 601 So.2d at 28. As such, the First Circuit determined that pursuant to La. R.S. 32:661(A)(2), the testing officer needed to have a reasonable articulable basis for believing the defendant had been driving on a public highway. Id. at 29. The court in Zachary ultimately concluded that the trial court correctly suppressed the results of the breathalyzer test because there was no evidence that the defendant was driving his vehicle on a public highway. Id.; Cf., State v. Gates, 13-206 (La. App. 5 Cir. 10/9/13), 128 So.3d 417, 420 (distinguishing Zachary in that Gates gave his actual consent to the breathalyzer test as evidenced by officer testimony and conceded to by defense counsel at the suppression hearing).
We find Zachary distinguishable from the case at bar. Unlike Zachary, there is an articulated factual basis to believe Mr. Mouton had been driving on a public highway while intoxicated. Sergeant Spera testified that when he approached the vehicle and talked with him, Mr. Mouton said that he had come from the Rivershack in Metairie to the Circle K gas station. Mr. Mouton also told the sergeant that he had a couple of drinks with his dinner at the Rivershack. Sergeant Spera confirmed that Mr. Mouton admitted that he had operated his vehicle. The sergeant also testified that Mr. Mouton was alone inside the vehicle with the engine running and the keys in the ignition. Sergeant Spera further indicated that there was a moderate odor of alcohol on Mr. Mouton's breath and person. Based on Mr. Mouton's admissions to Sergeant Spera and the sergeant's observations, Sergeant Spera had "reasonable grounds" to believe that Mr. Mouton had been driving his vehicle on a public highway of this state. See La. R.S. 32:661(A)(2)(a). As such, the trial court did not abuse its discretion in denying the motion to suppress.
ERRORS PATENT
Generally, an error patent review is not conducted on misdemeanor convictions. Nevertheless, this Court has on occasion considered a "misdemeanor appeal" as an application for supervisory review of the case and has conducted an error patent review. See State v. Jones, 12-640 (La. App. 5 Cir. 10/30/13), 128 So.3d 436, 443 n.4. A complete record of this case was not provided. Thus, a review for errors patent according to La. C.Cr.P. art. 920 was conducted with the information provided in the writ application.
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990)
La. R.S. 14:98(A)(1) provides that at least 48 hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. Here, the sentencing transcript reflects that the trial court sentenced Mr. Mouton, in part, to 180 days of jail, which the trial court suspended and placed him on 18 months active probation. The trial court failed to impose a sentence in which at least 48 hours of Mr. Mouton's sentence was without the restriction of benefits. La. R.S. 15:301.1(A) provides that the statutory restrictions, even if they are not recited at sentencing, are deemed to be contained in the sentence and are therefore statutorily effective. State v. Davis, 17-81 (La. App. 5 Cir. 6/29/17), 224 So.3d 1211, 1219. However, because La. R.S. 14:98(A)(1) provides that "at least forty-eight hours" of the sentence shall be imposed without the benefit of probation, parole, or suspension of sentence, the trial court's failure to impose the statutory restrictions is not cured by La. R.S. 15:301.1 as the portion of the sentence to be served without benefit is left to the discretion of the trial court.
La. R.S. 14:98(A)(1) provides in pertinent part:
A. (1) Except as modified by the provisions of Paragraphs (2), (3), and (4) of this Subsection, or as provided by Subsection D of this Section, on a conviction of a second offense violation of R.S. 14:98, regardless of whether the second offense occurred before or after the first conviction, the offender shall be fined not less than seven hundred fifty dollars nor more than one thousand dollars, and shall be imprisoned for not less than thirty days nor more than six months. At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of sentence shall not be suspended unless the offender is placed on probation with the minimum conditions that he complete all of the following:
La. R.S. 14:98(A)(1) (emphasis added).
See State v. Ard, 20-221 (La. App. 5 Cir. 4/28/21), 347 So.3d 1046, where the defendant was charged and convicted of domestic abuse battery by strangulation in violation of La. R.S. 14:35.3(L). This Court found that the district court imposed an enhanced sentence upon the defendant that was illegally lenient. This Court noted that La. R.S. 14:35.3(C) provides that at least 48 hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. This Court found that the district court's failure to impose the statutory restriction was not cured by La. R.S. 15:301.1 because the portion of the sentence to be served without benefit of parole is left to the discretion of the district court. Therefore, this Court remanded this case for resentencing with instructions to the district court to impose defendant's enhanced sentence in accordance with the provisions of the underlying statute, La. R.S. 14:35.3(C). Id. at 21-22.
Additionally, La. R.S. 13:98.2(A)(1) provides that the "[i]mposition or execution of the remainder of the sentence shall not be suspended unless the offender is placed on probation with the minimum conditions" to be completed, including that the offender "participate in a court-approved driver improvement program." Mr. Mouton's probation was subject to the following conditions: the placement of an interlock device of any vehicle Mr. Mouton operates for 12 months; an interview with a social worker; a substance abuse evaluation; and 240 hours of community service. As a special condition of his probation, the trial court ordered that Mr. Mouton not engage in the consumption of alcohol for 18 months. The trial court failed to impose probation with the statutorily-required minimum condition that Mr. Mouton participate in a court-approved driver improvement program pursuant to La. R.S. 14:98.2(A)(1).
Furthermore, the sentencing transcript reflects that the trial court failed to advise Mr. Mouton of the provisions of La. C.Cr.P. art. 930.8, which states in pertinent part, "[n]o application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922." Pursuant to La. C.Cr.P. art. 924, an application for post-conviction relief is "a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside." "In order to have standing to seek post-conviction relief, the defendant must demonstrate some significant restraint upon his or her individual liberty." State v. Smith, 96-1798 (La. 10/21/97), 700 So.2d 493, 495. Consequently, "a defendant cannot bring an application for post-conviction relief after the sentence is satisfied." State v. Surus, 13-903 (La. App. 3 Cir. 4/2/14), 135 So.3d 1236, 1242.
"If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion." State v. Becnel, 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017, 1022. The trial court did not advise Mr. Mouton of the provisions of La. C.Cr.P. art. 930.8. However, because we find the substantive issues on appeal require this Court to reverse and modify Mr. Mouton's conviction and remand the matter for resentencing, the patent errors relating to Mr. Mouton's sentence are rendered moot.
CONCLUSION
Based on the foregoing, we find the State failed to submit sufficient evidence to prove Mr. Mouton's identity in the alleged predicate offense; thus, the State did not meet its burden of proving a valid prior conviction to support a DWI, second offense conviction in this case. While this Court finds the evidence insufficient to support Mr. Mouton's conviction for a DWI, second offense, the evidence is sufficient to support the lesser and included responsive verdict—DWI, first offense. Therefore, pursuant to La. C.Cr.P. art. 821(E), we reverse Mr. Mouton's conviction, vacate his sentence, and modify the verdict and render a judgment of conviction for driving while intoxicated, first offense. Furthermore, review of the record reflects errors patent exist as it relates to Mr. Mouton's sentence; however, these sentencing issues are rendered moot in light of our findings on the substantive issues.
DECREE
Accordingly, we reverse Mr. Mouton's conviction and modify the verdict, rendering a judgment of conviction for driving while intoxicated, first offense, in violation of La. R.S. 14:98. Additionally, we vacate Mr. Mouton's sentence as a DWI second offender and remand the matter for resentencing in accordance with the modified verdict and judgment of conviction for a DWI, first offense.