Date: 02-08-2017

Case Style:

Case Number: 16-KA-468

Judge: Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson

Court: FIFTH CIRCUIT COURT OF APPEAL, STATE OF LOUISIANA

Plaintiff's Attorney:

Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long
Lynn Schiffman
Marko Marjanovic

Defendant's Attorney:

Prentice White

Description: On the morning of April 28, 2015, Louis Dassau parked his commercial
shrimping vessel, “Cajun Star,” at a dock at Dean Seafood Plant in Bayou Rigaud
near Grand Isle, Louisiana. Mr. Dassau planned to go fishing that day, and
defendant, who had worked on Mr. Dassau’s shrimping boat as a deckhand on and
off since 2007, was helping Mr. Dassau get the boat ready. Needing supplies for
the day, Mr. Dassau positioned his boat in the crowded marina while defendant
tied it to the pier, and Mr. Dassau headed to the store. Before he left, Mr. Dassau
asked defendant, who had never previously piloted the vessel, to move the boat
approximately fifty feet so that the boat could be loaded with ice.
At trial, Greg Blanchard, who helps to manage Dean Seafood, testified that
he was standing on the dock as defendant moved Mr. Dassau’s boat. Mr.
Blanchard speculated that the wind “pulled the bow out,” and therefore, as
defendant turned the boat, he did not have enough room. Mr. Blanchard screamed
at defendant to slow down and stop. He then saw defendant run to the back deck
of the boat and pull the control lever backwards to go in reverse. As the lever
controls had been improperly installed, the boat moved forward and hit another
vessel and the dock. Mr. Blanchard and others grabbed a rope and tied the boat
back to the dock.1
Sergeant Ezekial Talbert, Jr., an agent with the Louisiana Department of
Wildlife and Fisheries, responded to the scene after receiving a call from the Coast
Guard to investigate a possible driving while intoxicated violation following a
boating accident. Upon arriving at the scene, Sergeant Talbert spoke to defendant
who advised him that he was operating the vessel at the time of the incident.
According to Sergeant Talbert, defendant did not smell of alcohol, but he did have
difficulty maintaining focus on the conversation. Sergeant Talbert recalled that as
he spoke to defendant, defendant paused, stared, and asked the agent to repeat his
questions. Sergeant Talbert further observed that defendant mumbled, slurred his
words, and was “borderline incoherent.” In addition, Sergeant Talbert described
that defendant was swaying and unsteady, unable to maintain his balance, and
leaned against a post to stay upright. Based on his observations, Sergeant Talbert
suspected that defendant was under the influence of some intoxicating substance
and thereafter advised defendant of his rights. During their interaction, defendant
informed Sergeant Talbert that he was a recovering drug addict and showed him a
prescription for Suboxone. After ascertaining that defendant had not been injured
in the accident, Sergeant Talbert began to administer the field sobriety testing.
First, he performed the horizontal gaze nystagmus test and observed the
involuntary jerking of defendant’s eyes, which occurs when an individual is
intoxicated or under the influence. However, Sergeant Talbert was concerned
about defendant’s safety and did not have him perform the one-legged stand test or
the walk and turn test as defendant “kept falling over” and was unable to maintain
his balance. Based on his observations, Sergeant Talbert believed that defendant
was under the influence, arrested him for driving while intoxicated, and transported
him to the police station in Grand Isle.
At the police station, defendant executed an arrestee’s rights form relating to
chemical testing, signed a consent form to give a blood sample, and was overall
very cooperative. While there, Sergeant Talbert had defendant blow into an
Intoxilyzer machine that recorded all zeroes, thereby confirming the agent’s belief
that defendant was not intoxicated from consuming alcohol. In addition, defendant
gave a blood sample and attempted to provide a urine sample but was unable to do
so.
At trial, Cate Sanford, a crime lab analyst in the toxicology division at the
Louisiana State Police Crime Lab, testified that she performed a toxicological
analysis on defendant’s blood sample and reported that defendant’s blood
contained diazepam, nordiazepam, and methamphetamine; however, Suboxone,
which defendant claimed that he had taken, was not found in defendant’s blood.



16-KA-468 4
SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error on appeal, defendant argues that the trial
court erred in denying his motion for post-verdict judgment of acquittal since the
evidence was insufficient for any rational trier of fact, viewing the evidence in the
light most favorable to the prosecution, to find the elements of the crime were
proven beyond a reasonable doubt.2 Defendant points to several factors to support
this argument. Specifically, he asserts that he was suffering from a debilitating
back condition that required him to take prescription medication, and his pain, not
alcohol consumption, caused his inability to complete the field sobriety tests.
Further, defendant maintains that the boat’s incorrectly installed controls caused
him to hit the dock and another vessel and that the windy weather conditions
contributed to the accident. Defendant argues that the sole evidence presented
against him was the agent’s testimony about his slurred speech and his inability to
maintain his balance, and therefore, the evidence was insufficient to convict him.
We find no merit to these arguments.
In reviewing the sufficiency of the evidence, an appellate court must
determine if 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Reeder, 15-68 (La. App. 5 Cir. 8/25/15), 189 So.3d 401, 406.
Under the Jackson standard, a review of the record for the sufficiency of the
evidence does not require the court to ask whether it believes that the evidence at
the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is
required to consider the whole record and determine whether any rational trier of

2 Notably, the proper procedural vehicle for raising the issue of the sufficiency of the evidence is a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Lande, 06-24 (La. App. 5 Cir. 6/28/06), 934 So.2d 280, 289 n.18, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154.


16-KA-468 5
fact could have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.
App. 5 Cir. 4/15/08), 985 So.2d 234, 240.
In making this determination, a reviewing court will not re-evaluate the
credibility of witnesses or re-weigh the evidence. Indeed, the resolution of
conflicting testimony rests solely with the trier of fact, who may accept or reject, in
whole or in part, the testimony of any witness. State v. Reeder, 189 So.3d at 406
07. Thus, in the absence of internal contradiction or irreconcilable conflicts with
physical evidence, the testimony of one witness, if believed by the trier of fact, is
sufficient to support a conviction. State v. Dixon, 07-915 (La. App. 5 Cir.
3/11/08), 982 So.2d 146, 153, writ denied, 08-987 (La. 1/30/09), 999 So.2d 745.
In the present case, defendant was convicted of fourth offense operating a
vehicle while intoxicated, having received the benefit of parole, probation, or
suspension of sentence on a previous fourth offense driving while intoxicated
conviction. At the time of the offense, the crime of driving while intoxicated was
defined, in pertinent part, as “the operating of any motor vehicle, aircraft,
watercraft, vessel, or other means of conveyance when … the operator is under the
influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or
V as set forth in R.S. 40:964.” See La. R.S. 14:98(A)(1)(c).
Thus, in order to convict a defendant 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. State v. Vidal, 04-1139 (La. App. 5 Cir.
3/29/05), 901 So.2d 484, 487. To convict a defendant of a fourth offense driving
while intoxicated, the State must also show that the defendant had three other valid
convictions. State v. Delanueville, 11-379 (La. App. 5 Cir. 2/14/12), 90 So.3d 15,
20, writ denied, 12-630 (La. 9/21/12), 98 So.3d 325. In the present case, there is
no dispute that defendant was operating a vehicle and that he had three prior


16-KA-468 6
driving while intoxicated convictions.3 Accordingly, the State needed only to
prove that defendant was under the influence of a controlled dangerous substance.4
Intoxication is defined as the impairment, however slight, to the ability of a
person to operate a motor vehicle. The impairment need not be whole but only to
the extent that the influence caused a person to operate his vehicle in a way
different from that in which it would be operated by an ordinarily cautious and
prudent person. State v. Reeder, 189 So.3d at 407.
The jurisprudence has established that intoxication with its attendant
behavioral manifestations is an observable condition about which a witness may
testify, and some behavioral signs, independent of any scientific test, are sufficient
to support a charge of driving while intoxicated. The behavioral manifestations
which are sufficient to support a charge of driving while intoxicated must be
determined on a case-by-case basis. State v. Davis, 13-313 (La. App. 5 Cir.
10/30/13), 128 So.3d 1195, 1202, writ denied, 13-2748 (La. 5/16/14), 139 So.3d
1023.
In the present case, the jury was presented with conflicting testimony about
defendant’s condition surrounding the time of the incident. According to Sergeant
Talbert, when he first encountered defendant at the dock, defendant did not smell
of alcohol, but he did have difficulty maintaining focus on the conversation.
Sergeant Talbert recalled that as he spoke to defendant, defendant paused, stared,
and asked the agent to repeat his questions. Sergeant Talbert further observed that
defendant mumbled, slurred his words, and was “borderline incoherent.” In
addition, Sergeant Talbert described that defendant was swaying and unsteady,
unable to maintain his balance, and leaned against a post to stay upright. Sergeant

3 At trial, the State and defendant stipulated that on April 28, 2015, defendant was in control and operation of the vessel. The parties also stipulated that defendant had three prior driving while intoxicated convictions and had received the benefit of parole, probation, or suspension of sentence on a previous fourth offense driving while intoxicated conviction. 4 Methamphetamine is a Schedule II controlled dangerous substance. See La. R.S. 40:964. At trial, the State and defendant stipulated that methamphetamine was a controlled dangerous substance that was not obtainable by a prescription.


16-KA-468 7
Talbert further testified that he performed the horizontal gaze nystagmus test on
defendant and observed the involuntary jerking of his eyes, which occurs when an
individual is intoxicated or under the influence. However, Sergeant Talbert was
concerned about defendant’s safety and did not have defendant perform the one
legged stand test or the walk and turn test as defendant “kept falling over” and was
unable to maintain his balance.
Agent Michael Marques, a senior sergeant with the Louisiana Department of
Wildlife and Fisheries who assisted in the investigation of defendant, also testified
at trial for the State. While at the police station, Agent Marques observed that
defendant’s speech was slurred, his eyes were droopy, and he could not walk that
well. In addition to this testimony regarding defendant’s condition, the State also
produced evidence that defendant’s blood contained methamphetamine, a Schedule
II controlled dangerous substance, but not Suboxone, the prescription medicine
that defendant claimed he had taken.
After the State rested, defendant called several witnesses to attempt to show
that he was not under the influence of a controlled dangerous substance at the time
of the boating accident. Mr. Dassau, the owner of the boat, testified that on the day
of the incident, defendant, whom he had known for about fifteen years, seemed to
be seaworthy and did not appear intoxicated. Further, he maintained that
defendant “always has balance issues due to a broken back.” He also testified
about mechanical problems with his boat that made it difficult to operate. In
particular, Mr. Dassau explained that he does the mechanical work on the boat
himself and admitted that when he installed the Morris controls, which move the
boat forward and backwards and control the speed of the engine, he installed the
lever backwards. As a result, when the lever was pushed forward, the boat actually
moved in reverse and vice versa. Mr. Dassau also testified that at the time of the
accident, the boat was about one quart low on steering oil.


16-KA-468 8
Mr. Greg Blanchard, who helped manage Dean Seafood, testified that he
was standing on the dock when defendant moved Mr. Dassau’s boat. He asserted
that boats frequently hit the dock and speculated that the wind had “pulled the bow
out” when defendant untied the boat to move it. He recalled that as defendant
turned the boat, he did not have enough room. He screamed at defendant to slow
down and stop but then saw defendant run to the back deck of the boat and pull the
lever backwards. The boat then moved forward and hit another vessel.
Lance Santiny, a fireman and ambulance driver with the Grand Isle Fire
Department, testified that he spoke to defendant at the police station before the
blood sample was drawn. Mr. Santiny knew defendant his whole life and has seen
defendant intoxicated in the past. He testified that on April 28, 2015, defendant
was not incoherent and did not appear to be under the influence of any alcohol or
pharmaceutical substance. Lastly, Terry Blanchard, a paramedic with the Grand
Isle Emergency Service who drew blood from defendant, testified that defendant
was cooperative, his words were not slurred or incoherent, and he did not appear to
have trouble standing.
In the present case, the jury heard the testimony from both the State and the
defense witnesses, and by its verdict, obviously afforded more credibility to the
testimony of the State witnesses. The evidence presented at trial clearly supports
the jury’s credibility determinations. We particularly note the testimony of State
witnesses that defendant’s speech was slurred and was “borderline incoherent,”
that defendant was unsteady and unable to maintain his balance, and that
defendant’s eyes involuntarily jerked during the horizontal gaze nystagmus test.
Further, defendant’s blood sample revealed the presence of methamphetamine in
his system. Accordingly, viewing the evidence in the light most favorable to the
prosecution, we find that any rational trier of fact could have found beyond a
reasonable doubt that defendant was guilty of fourth offense driving while


16-KA-468 9
intoxicated. Thus, the trial court did not err in denying defendant’s post-verdict
judgment of acquittal.
ERRORS PATENT REVIEW
We have reviewed the record for errors patent, according to La. C.Cr.P. art.
920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d
175 (La. App. 5th Cir. 1990). We first note that defendant’s sentence is illegally
lenient because the trial court failed to impose the mandatory fine of five thousand
dollars set forth in La. R.S. 14:98.4(C). An illegal sentence may be corrected at
any time by an appellate court on review. See La. C.Cr.P. art. 882. However, this
authority is permissive rather than mandatory. State v. Davis, 128 So.3d at 1204.
Since defendant is apparently indigent, as reflected by his representation in this
matter by the Louisiana Appellate Project, we decline to order the imposition of
the mandatory fine. See State v. Robinson, 15-610 (La. App. 5 Cir. 1/27/16), 185
So.3d 212, 215.
Next, we note a discrepancy between the minute entry/commitment and the
sentencing transcript. Specifically, the minute entry/commitment provides that
defendant was advised his “Guilty Plea can be used to enhance the penalty of a
subsequent offense,” whereas the sentencing transcript correctly provides that
“[a]ny subsequent convictions may carry an enhanced penalty as a result of this
conviction.” To ensure accuracy in the record, we remand the matter to the district
court to correct the minute entry/commitment to reflect that defendant’s conviction
could be used to enhance the penalty of a subsequent offense. See State v. Rivet,
01-353 (La. App. 5 Cir. 9/25/01), 798 So.2d 219, 227.
Lastly, we note an error in the State of Louisiana Uniform Commitment
Order. The Uniform Commitment Order reflects that defendant’s sentence “shall
be concurrent with any or every sentence the offender is now serving.” However,
neither the transcript nor the minute entry/commitment indicates that the trial court


16-KA-468 10
ordered defendant’s sentence to run concurrently with any other sentence he is
serving. Therefore, we remand the matter for correction of the Uniform
Commitment Order to delete the provision relating to the concurrent nature of
defendant’s sentence. We further direct the Clerk of Court to transmit the original
of the corrected Uniform Commitment Order to the officer in charge of the
institution to which defendant has been sentenced and the Department of
Corrections’ Legal Department.

Outcome: