Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 341453 Honorable
Brady D. O'Callaghan, Judge
LOUISIANA APPELLATE PROJECT By: Chad Ikerd Counsel for
R. DAVIS, JR. Pro Se
E. STEWART, SR. District Attorney Counsel for Appellee
MEKISHA S. CREAL TOMMY J. JOHNSON Assistant District
WILLIAMS, GARRETT, and COX, JJ.
defendant, Dennis R. Davis, Jr., was charged by bill of
information with operating a motor vehicle while intoxicated
("DWI"), fourth offense, in violation of La. R.S.
14:98(D) and 14:98.4. Following a jury trial, the defendant
was found guilty as charged. He was sentenced to serve 23
years at hard labor, with two years to be served without the
benefit of parole, probation or suspension of sentence. He
was also ordered to pay a $5, 000 fine. Further, during the
trial, the defendant was held in contempt of court seven
times and was sentenced as follows: two six-month periods of
confinement in the parish jail, each running consecutively to
the sentence imposed for DWI; 10 days' confinement in the
parish jail on each of the five remaining counts, for a total
of 50 days, all consecutive to any other sentences the
defendant may be facing or serving.
following reasons, we affirm the defendant's conviction
and sentence for DWI, fourth offense. With regard to the
findings of direct contempt, we reverse four findings of
contempt, and we vacate the six-month period of confinement
and three of the 10-day sentences imposed. The three
remaining adjudications of contempt, and the sentences
imposed therefor - one six-month sentence and two 10-day
sentences - are affirmed.
trial, the defendant opted to represent himself with the
assistance of "standby" counsel. The following
testimony was elicited at the trial: on May 15, 2016,
Detective Logan McDonald and Corporal Jimmie Minor, of the
Shreveport Police Department ("SPD"), were assigned
to the radar unit of the traffic division. Det. McDonald was
operating a stationary radar unit from the parking lot of a
funeral home at the intersection of Jewella Avenue and
Hollywood Avenue. Det. McDonald testified that he and Cpl.
Minor were parked beside each other and they
"clocked" the speed of vehicles as the vehicles
traveled over a hill on Jewella Avenue. Det. McDonald also
testified that his patrol vehicle was equipped with a Mobile
Video System ("MVS"), which captures video and
audio, and a "two-piece" radar unit, with a radar
antenna in the front and rear of the vehicle.
McDonald further testified as follows: he observed a pickup
truck coming over the hill at a high rate of speed; he
visually estimated that the vehicle was traveling at
approximately 75 miles per hour ("mph") in a 40 mph
speed zone; the radar unit confirmed the speed of the vehicle
at 75 mph; he activated his lights and pulled out of the
parking lot to conduct a traffic stop; both he and the
defendant pulled into the parking lot of a gas station
located nearby; when he approached the defendant's truck,
he detected a strong odor of an alcoholic beverage emitting
from the inside of the vehicle; he asked the defendant to
exit the truck to verify the source of the odor of alcohol;
he detected that the odor was coming from the defendant; he
also observed that the defendant was unsteady on his feet,
swaying, and his speech was slurred; it took the defendant
several minutes to produce his driver's license and proof
of insurance; he advised the defendant of his
Miranda rights and asked him to perform field
sobriety tests; he administered the Horizontal Gaze Nystagmus
("HGN") test and the ABC/Divided Attention test;
the defendant performed poorly on the HGN test; he noted
nystagmus (jerking activity) in the defendant's eyes; the
defendant was unable to follow the pen with his eyes; the
defendant performed poorly on the ABC test and was unable to
recite the alphabet from A to Z; he observed the defendant
"swaying" throughout the tests; the defendant's
performance on the field sobriety tests indicated that he was
intoxicated; the MVS in his police vehicle was activated at
the time of the traffic stop and recorded the
encounter; he placed the defendant under arrest and
transported him to the police station; when they arrived at
the police station, he escorted the defendant to the
"DWI interview room," where DWI suspects are
usually taken, advised the defendant of his Miranda
rights, including his rights in connection with blood alcohol
and Breathalyzer testing; the room contains a camera that
recorded the interaction between him and the defendant; the
defendant refused to undergo additional field sobriety and
the Intoxilyzer testing; and he placed the defendant under
arrest for DWI, fourth offense.
Jimmie Minor, who is employed in SPD's traffic division,
testified as follows: on the evening of May 15, 2016; he was
positioned in the parking lot of a funeral home at the corner
of Hollywood and Jewella Avenues; he was "running
radar" with Det. McDonald; he assisted Det. McDonald
when he executed the traffic stop of the defendant; he exited
his patrol unit when he noticed there was a passenger in the
defendant's truck; and his only involvement with the
defendant was when he moved the defendant's truck after
the defendant was placed under arrest.
Danny Duddy, a supervisor with the SPD's Crime Scene
Investigation Unit, testified at trial as an expert in the
field of fingerprint identification and comparison. Sgt.
Duddy testified that he compared fingerprints from three
April 21, 2014 convictions (Caddo Parish District Court
docket numbers 311200, 311388, and 321995), for DWI first
offense, of a defendant named Dennis R. Davis, Jr., with
fingerprints obtained from the defendant in the courtroom.
Sgt. Duddy concluded that the defendant was the same person
convicted in the three prior offenses in 2014. He also testified
that each conviction reflected in the state's exhibits
was within ten years of May 15, 2016.
defendant was the only witness to testify for the defense. He
testified as follows: he was not drinking on the night of May
15, 2016; he had not consumed alcohol in the 48 hours prior
to being stopped by the police officers; he did not refuse
the sobriety tests offered by Det. McDonald; he did not
exhibit signs of intoxication when he was stopped; his eyes
were not glossy, his balance was not unsteady, his breath did
not smell like alcohol, and he did not stagger or fall during
the traffic stop; and he was not traveling at 75 mph when he
the defendant's testimony, he introduced into evidence an
amended bill of information for Caddo Parish District Court
docket number 32214, which charged him with DWI, second
offense on May 5, 2016.
deliberating, the jury found the defendant guilty as charged
of DWI, fourth offense. He was sentenced to serve 23 years in
prison at hard labor, two of those years to be served without
the benefit of parole, probation or suspension of sentence.
He was also ordered to pay a $5, 000 fine. Additionally,
during the trial, the defendant was held in contempt of court
seven times and was sentenced as follows: two six-month
confinements in the parish jail, each running consecutively
to the other sentences imposed; 10 days' confinement in
the parish jail on each of the remaining five counts, for a
total of 50 days, all to run consecutive to "any other
sentence the defendant may be facing or serving."
Subsequently, the trial court denied the defendant's pro
se motion to reconsider sentence.
defendant contends the evidence was insufficient to support
his conviction for DWI, fourth offense. He argues as follows:
the state failed to produce any evidence to show his blood
alcohol level; the state relied on circumstantial evidence
and "innocuous observations" to prove that he was
intoxicated; his alleged swaying and slurred speech could
have been caused by another reason, such as standing on his
feet all day while wearing boots; Det. McDonald had no
baseline to observe how the defendant normally reacted after
working all day; the perceived redness in his eyes could have
been caused by working all day in the elements; the police
officers "allegedly" stopped him for speeding,
which is not an indication of intoxication; there was no
testimony that he was driving erratically or swerving; the
odor of alcohol, alone, does not prove intoxication; Det.
McDonald's testimony that he had "odor on the
breath" could not be verified by the jury because the
jury could not smell the odor just by viewing the videotape;
and the state did not exclude every reasonable hypothesis of
standard of appellate review for a sufficiency of the
evidence claim is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.
5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905,
124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v.
Ward, 50, 872 (La.App. 2 Cir. 11/16/16), 209 So.3d 228,
writ denied, 2017-0164 (La. 9/22/17), 227 So.3d 827.
This standard, now legislatively embodied in La.C.Cr.P. art.
821, does not provide the appellate court with a vehicle to
substitute its own appreciation of the evidence for that of
the factfinder. State v. Ward, supra;
State v. Dotie, 43, 819 (La.App. 2 Cir. 1/14/09), 1
So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21
So.3d 297. On appeal, a reviewing court must view the
evidence in the light most favorable to the prosecution and
must presume in support of the judgment, the existence of
every fact the trier of fact could reasonably deduce from the
evidence. Jackson, supra.
appellate court does not assess the credibility of witnesses
or reweigh evidence. State v. Smith, 94-3116 (La.
10/16/95), 661 So.2d 442; State v. Ward,
supra. A reviewing court accords great deference to
a jury's decision to accept or reject the testimony of a
witness in whole or in part. State v. Ward,
supra; State v. Eason, 43, 788 (La.App. 2
Cir. 2/25/09), 3 So.3d 685, writ denied, 2009-0725
(La. 12/11/09), 23 So.3d 913.
Jackson standard is applicable in cases involving
both direct and circumstantial evidence. An appellate court
reviewing the sufficiency of evidence in such cases must
resolve any conflict in the direct evidence by viewing that
evidence in the light most favorable to the prosecution. When
the direct evidence is thus viewed, the facts established by
the direct evidence and inferred from the circumstances
established by that evidence must be sufficient for a
rational trier of fact to conclude beyond a reasonable doubt
that defendant was guilty of every essential element of the
crime. State v. Sutton, 436 So.2d 471 (La. 1983);
State v. Ward, supra; State v.
Speed, 43, 786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582,
writ denied, 2009-0372 (La. 11/06/09), 21 So.3d 299.
convict a defendant based upon circumstantial evidence, every
reasonable hypothesis of innocence must be excluded. La. R.S.
15:438; State v. Barakat, 38, 419 (La.App. 2 Cir.
6/23/04), 877 So.2d 223. In the absence of internal
contradiction or irreconcilable conflict with the physical
evidence, the testimony of one witness, if believed by the
trier of fact, is sufficient support for a requisite factual
conclusion. State v. Burd, 40, 480 (La.App. 2 Cir.
1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.
11/9/06), 941 So.2d 35.
time of the defendant's arrest, La. R.S. 14:98 provided,
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
(b) The operator's blood alcohol concentration is 0.08
percent or more by weight based on grams of alcohol per one
hundred centimeters of blood[.]
instant case, the defendant refused to submit to a blood
alcohol concentration test. Thus, in order to support the
defendant's conviction of DWI, the prosecution must prove
that (1) the defendant was operating a vehicle and (2) he was
under the influence of alcoholic beverages while doing so.
La. R.S. 14:98(A)(1)(a); State v. Pickard, 40, 422
(La.App. 2 Cir. 12/14/05), 918 So.2d 485; State v.
Minnifield, 31, 527 (La.App. 2 Cir. 1/20/99), 727 So.2d
1207, writ denied, 99-0516 (La. 6/18/99), 745 So.2d
appeal, the defendant does not dispute the evidence presented
to prove his prior convictions for DWI. Therefore, we must
only determine whether the evidence was sufficient to support
the DWI conviction in the instant matter. Further, since the
defendant refused to undergo a breath or blood alcohol test,
his DWI conviction rests solely upon the observations of the
well settled that behavioral manifestations, independent of
any scientific tests, are sufficient to support a conviction
of DWI. State v. Henix, 46, 396 (La.App. 2 Cir.
8/10/11), 73 So.3d 952; State v. Gage, 42, 279
(La.App. 2 Cir. 8/29/07), 965 So.2d 592, writ
denied, 2007-1910 (La. 2/22/08), 976 So.2d 1283;
State v. Harper, 40, 321 (La.App. 2 Cir. 12/14/05),
916 So.2d 1252. It is not necessary that the conviction be
based upon a breath or blood alcohol test. The observations
of an arresting officer may be sufficient to establish guilt.
Intoxication is an observable condition about which a witness
may testify. State v. Allen, 440 So.2d 1330 (La.
1983); State v. Henix, supra. Furthermore,
a defendant's refusal to submit to a breath test is
admissible to support a conviction for DWI; the weight of
that evidence is left to the trier of fact. La. R.S.
32:666(A); State v. Dugas, 252 La. 345, 211 So.2d
285 (1968), cert denied, 393 U.S. 1048, 89 S.Ct.
679, 21 L.Ed.2d 691 (1969); State v. Henix,
during the defendant's trial, Det. McDonald described the
defendant's appearance and behavior on the day of the
defendant's arrest. He testified that the defendant's
behavior was consistent with a person who is intoxicated.
According to Det. McDonald, the defendant emitted a
"strong odor" of alcohol, and his speech was
slurred. Further, the officer testified with regard to
administering field sobriety tests to the defendant.
According to Det. McDonald, the defendant was unsteady on his
feet, swaying, and he failed the field sobriety tests. Based
on his observations, Det. McDonald opined that the defendant
the video and audio recordings introduced into evidence
confirmed Det. McDonald's testimony. A review of those
recordings reveals that the defendant was unable to recite
the alphabet while he was on the scene of the arrest and that
he was swaying while attempting to perform the field sobriety
apparent from the verdict that the jury found the testimony
of Det. McDonald to be credible. In addition, the jury was
able to view the video evidence of the defendant's
arrest. After reviewing the evidence in a light most
favorable to the prosecution, we find that the record
supports the jury's finding of guilt. Further, the
evidence of record excluded every reasonable hypothesis of
innocence. The jury had sufficient evidence to conclude that
the defendant was driving while intoxicated. This assignment
defendant also contends the trial court erred in denying his
motion for a new trial. He argues that he was entitled to a
new trial because the verdict rendered was "contrary to
the law and/or the evidence in that the prosecution failed to
prove beyond a reasonable doubt that the defendant committed
the crime." La.C.Cr.P. art. 851(B)(1). Further, the
defendant argues that the trial court used the
"sufficiency of the evidence" standard, as set
forth in Jackson v. Virginia, supra, to
deny his motion for a new trial, rather than reviewing the
matter as the "thirteenth juror," as set forth in
Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72
L.Ed.2d 652 (1982). According to the defendant, the trial
court was required to sit as a thirteenth juror and analyze
the case from a juror's perspective, which gives the
defendant the presumption of innocence and the state the
burden of proof.
Cr. P. art. 851 provides, in pertinent part:
The motion for a new trial is based on the supposition that
injustice has been done the defendant, and, unless such is
shown to have been the case the motion shall be denied, no
matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new
trial whenever any of the following occur:
(1)The verdict is contrary to the law and the evidence.
(2)The court's ruling on a written motion, or an
objection made during the proceedings, shows prejudicial
La. C. Cr. P. art. 858 provides:
Neither the appellate nor supervisory jurisdiction of the
supreme court may be invoked to review the granting or the
refusal to grant a new trial, except for error of law.
courts are to use the "thirteenth juror" standard
when the ground asserted in the motion for new trial is that
the verdict is contrary to the law and the evidence, or the
court is of the opinion that the ends of justice would best
be served by granting a new trial. State v. Watts,
2000-0602 (La. 1/14/03), 835 So.2d 441. In ruling on a motion
for new trial pursuant to La.C.Cr.P. art. 851(1), the trial
court can only consider the weight of the evidence. The trial
court then makes a factual review of the evidence as a
thirteenth juror. State v. Steward, 95-1693 (La.App.
1 Cir. 9/27/96), 681 So.2d 1007.
State v. Hampton, 98-0331 (La. 4/23/99), 750 So.2d
867, the Louisiana Supreme Court stated:
A motion for new trial presents only the issue of the weight
of the evidence, see Tibbs v. Florida, 457 U.S. 31,
102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) *** and is examined
under the so-called thirteenth juror standard, under which
the judge reweighs the evidence. Id.; State v.
Voorhies, 590 So.2d 776, 777 (La.App. 3rd Cir.1991). The
question of the sufficiency is properly raised by a motion
for post-verdict judgment of acquittal. La.Code Crim. Proc.
art. 821; State v. Demery, 28, 396 (La.App.2d
Cir.8/21/96); 679 So.2d 518, 522. But see La.Code
Crim. Proc. art. 851 cmt. d ("[i]t is the duty of the
trial judge to pass upon the sufficiency of the
evidence" once ground (1) is raised under art.
We treat the constitutional issue of sufficiency because the
denial of a motion for new trial based upon La.Code Crim.
Proc. art. 851(1) is not subject to review on appeal.
State v. Bartley, 329 So.2d 431, 433 (La.
Id., 879-80; (footnote added).
in State v. Gaines, 633 So.2d 293 (La.App. 1 Cir.
11/24/93), the Court stated:
[W]e find it inappropriate to remand for a reconsideration of
the motion for new trial. First, when the trial court issued
its ruling, defendant did not object on the ground that the
court applied the wrong standard. Thus, procedurally he is
barred from advancing this argument on appeal. See
LSA-C.Cr.P. art. 841. Moreover, the record does not support
defendant's claim that the court applied the wrong
standard. The court's comments were brief and do not
indicate that the court applied the standards of LSA-C.Cr.P.
article 821 in ruling on the motion for new trial.
instant case, the trial court ruled on the defendant's
motions for a new trial and post-verdict judgment of
acquittal simultaneously. In doing so, the court stated:
Pursuant to La.C.Cr.P. art. 851(B)(2), the motion for a new
trial is denied. Under La.C.Cr.P. art. 851(B)(1), the court
does believe that there was sufficient evidence for a
reasonable trier of fact under Jackson v. Virginia
to find that the defendant was guilty as charged. And under a
motion for post-verdict judgment of acquittal, under the
Jackson v. Virginia analysis, the court defers to
the jury's assessment of the evidence based on the DWI
video that they had the opportunity to review and view
repeatedly and the predicate offense evidence that they saw
and heard in court. So I will deny both motions by defense
counsel at this time for the reasons orally stated.
review of the record reveals that the trial court summarily
denied the defendant's motion for new trial without
providing reasons. With regard to the defendant's motion
for post-verdict judgment of acquittal, the court correctly
applied the Jackson v. Virginia, supra,
standard of review. The court also addressed the arguments
the defendant urged in his motion for new trial and stated
that it had reviewed the evidence, including the evidence and
arguments the defendant raised ...