State of Louisiana Versus Roger Barber

STATE OF LOUISIANA NO. 19-KP-286

VERSUS FIFTH CIRCUIT

ROGER BARBER COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW
FROM THE SECOND PARISH COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. S1287425, DIVISION "A"
HONORABLE ROY M. CASCIO, JUDGE PRESIDING

October 02, 2019

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

WRIT GRANTED; CONVICTION AND SENTENCE REVERSED
FHW
JGG
RAC

COUNSEL FOR PLAINTIFF/RESPONDENT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Terry M. Boudreaux
Darren A. Allemand
Lonnie Taix

COUNSEL FOR DEFENDANT/RELATOR,
ROGER BARBER
J. Thomas Beasley

WICKER, J.

This is a post-conviction misdemeanor writ application in which

defendant/relator, Roger Barber, seeks review of his conviction and sentence on a

misdemeanor charge of driving while intoxicated, first offense, in violation of La.

R.S. 14:98. For reasons that follow, we grant the writ and reverse the conviction

and sentence.

Defendant was charged by bill of information with the offense of driving

while intoxicated, first offense, in violation of La. R.S. 14:98, and convicted as

charged after a bench trial on the merits.1 The court sentenced defendant to 60

days in parish prison, suspended, and placed defendant on active probation for a

term of 11 months. Special conditions of the probation included the completion of

a driver improvement program, substance abuse program, 32 hours of community

service, and attendance at a victim impact panel. The court further ordered

defendant to serve 48 hours of home incarceration and imposed a $500.00 fine plus

court costs.

Defendant filed this timely writ application seeking review of his conviction

and sentence on June 17, 2019. On June 21, 2019, this Court ordered that

defendant supplement his writ application with the trial transcript within fifteen

days of this Court’s order. The writ application has been supplemented as ordered

and will now be considered.

FACTS

On February 8, 2015, two Jefferson Parish police deputies, Jesse Dormoy

and Paul Carmouche, were dispatched to the 300 block of Westmeade in the

Bellemeade Subdivision to investigate a report that a male driver was passed out,

1
Defendant was also charged with, and convicted of, possession of an alcoholic beverage in a vehicle,
although it does not appear from the writ application that the court sentenced defendant on that
conviction. However, since defendant does not object to that conviction, any issues relating to this
conviction will not be considered herein.

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sleeping behind the wheel of his parked car. Upon arrival, the deputies found a

vehicle parked partially in the roadway and partially on the curb in front of a

residence. The driver was asleep at the wheel, the engine was running, and the

door of the vehicle was unlocked. Deputy Carmouche opened the door, turned off

the engine and removed the keys for safety. After some effort, Deputy Carmouche

was able to awaken the driver and discovered that he had a can of beer in his lap.

Once outside of his vehicle, defendant refused a standardized field sobriety test.

Deputy Carmouche testified that the smell of alcohol was present in the vehicle

and defendant appeared intoxicated because his speech was slurred and his eyes

were bloodshot. A subsequent test revealed a blood alcohol content of .160%.

Defendant stipulated to his intoxication level at trial.

Defendant testified at trial. In his testimony, he explained that he parked his

truck earlier in the day in front of his father’s house on Westmeade Drive. His

friend, Carrie Dufrene, picked him up in the early afternoon and drove them to a

Mardi Gras parade in Metairie. Ms. Dufrene drove back to defendant’s parents’

home on the Westbank at about midnight. Defendant explained that his vehicle

was parked at a strange angle because when he arrived at noon there were several

cars parked in and near the driveway. He further explained that the placement of a

storm drain and a light pole necessitated that he park at an angle. Defendant

testified that this was not a problem because the street is not a through street and

his vehicle was not obstructing traffic. It was also revealed at trial that Ms.

Dufrene had passed away since the incident and consequently there was no one to

corroborate defendant’s testimony.

Defendant testified that, although he lived nearby, he did not want to drive

home drunk after the parade at midnight. Defendant explained that he intended to

sleep in his truck and wait until he was sober in the morning to go into his father’s

home for coffee. He also stated that he had done this many times before to avoid

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confrontation with his father who became angry on prior occasions when his son

came home drunk.

Defendant admitted to being intoxicated and stated that he did not drive, and

never intended to drive that night. He stated that he turned on the engine so that he

could heat the vehicle as it was a cold night in February. He never put the car in

gear. He pointed out that if he had engaged the transmission, the doors would have

locked automatically and Deputy Carmouche would not have been able to open the

door after he was asleep.

Essentially, the State proved that defendant was intoxicated, that he got into

his car, started the engine, turned on the radio and the heater. In closing at trial, the

State argued that that activity constituted control and operation of the vehicle for

purposes of a conviction under La. R.S. 14:98.

Defense counsel countered that there is no direct evidence that defendant

was driving the vehicle while intoxicated on the day of the incident. He argued

that there was no “operation” of the vehicle in that defendant did not exercise

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.

Ultimately, the trial court found defendant guilty as charged.

LAW AND ANALYSIS

The constitutional standard for testing the sufficiency of the evidence

requires that a conviction be based on proof sufficient for any rational trier-of-fact,

viewing the evidence in the light most favorable to the prosecution, to find the

essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In our review we

must determine that the evidence, 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 had been proved beyond a reasonable doubt. State v.

19-KP-286 3

Captville, 448 So.2d 676, 678 (La. 1984). However, when, as in the matter before

us, circumstantial evidence forms the basis of the conviction, the evidence must

exclude every reasonable hypothesis of innocence, “assuming every fact to be

proved that the evidence tends to prove.” La. R.S. 15:438. The Supreme Court

has recently explained the relationship between the Jackson standard and the

rejection of the hypothesis of innocence in the absence of direct evidence as

follows:

In addition, the Jackson standard of review does not allow a jury to
speculate on the probabilities of guilt where rational jurors would
necessarily entertain a reasonable doubt. The requirement that jurors
reasonably reject the hypothesis of innocence advanced by the defendant in a
case of circumstantial evidence presupposes that a rational rejection of that
hypothesis is based on the evidence presented, not mere speculation.
Nonetheless, the Jackson standard “leaves juries broad discretion in deciding
what inferences to draw from the evidence presented at trial, requiring only
that jurors ‘draw reasonable inferences from basic facts to ultimate facts.’”
State v. Leger, ___So.3d at ___, 2019 WL 2750867, pp. 12-13, 17-2084 (La.
6/26/19) (citations omitted).

The crime of first offense of operating a vehicle while intoxicated is defined

in pertinent part as “the operating of any motor vehicle…when… (t)he operator is

under the influence of alcoholic beverages.” La. R.S. 14:98 (A)(1)(a). For a

conviction, the State must prove that defendant was operating a motor vehicle

while under the influence of alcohol. Accordingly, the two essential elements of

the crime are intoxication and operation of a vehicle. The first element,

intoxication, was conceded by defendant and is not at issue herein. It is the second

element, that of operation of a motor vehicle, that is the focus of our review. The

question now becomes, was the defendant “operating” the vehicle within the

meaning of the statute while he was intoxicated.

To 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. State v.

Sims, 426 So.2d 148, 155 (La. 1983). The term operating is broader than the term

driving. Operating in some circumstances may mean handling the controls of a

19-KP-286 4

vehicle. City of Bastrop v. Paxton, 457 So.2d 168, 169 (La. App. 2nd Cir. 1984).

In 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. It is not

necessary 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. 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 the matter before us, there is no direct evidence that defendant was

driving the vehicle while intoxicated. The initial report was made anonymously

and the caller only stated that a man was asleep at the wheel of a parked car. Both

deputies testified that defendant was sound asleep, seated behind the wheel of his

parked vehicle with the engine running when they arrived. Neither deputy saw

defendant driving, manipulating the steering wheel, pushing the brakes or violating

any traffic laws. Defendant was sleeping so heavily that waking him was difficult

for the deputies. He never tried to engage the transmission, or move the vehicle in

any way and did not resist the officers. Notably defendant was parked in front of

his parents’ home.

Thus, defendant was convicted on circumstantial, rather than direct

evidence. For purposes of appellate review, the issue of whether there is total lack

of circumstantial evidence to prove the crime (or an essential element of it) is

decided by whether or not there is some evidence from which the trier of fact could

reasonably conclude beyond a reasonable doubt that the accused had committed

every element of the crime with which charged. State v. Lindinger, 357 So.2d 500,

501 (La. 1978). Our inquiry is whether the evidence before the trier of fact

19-KP-286 5

excludes every other reasonable hypothesis than that the accused, admittedly found

later to be intoxicated, had “operated” the motor vehicle while so intoxicated. Id.

Defendant’s testimony that he did not drive after he became intoxicated was

undisputed. The vehicle was parked, albeit at an angle, on the side of the street in

front of his parents’ home. It was not blocking the roadway or at a commercial

establishment. No evidence was presented to show that defendant attempted to

move the vehicle.

We find that defendant’s testimony that he drove his vehicle to his parents’

home while sober, rode with a friend to a parade in Metairie where he became

intoxicated and then rode back to his parents’ home with that friend is a plausible

and reasonable hypothesis of innocence. Defendant’s testimony that he stayed in

his parked car because he did not want to drive drunk and did not want to disturb

his parents completes a version of events that is reasonable and fits with the

undisputed facts.

In finding the defendant guilty the trial court stated:

(t)he Court finds that there’s greatly distinguishing factors from the
memo that was presented by the defendant. The Court finds that the laws
from the Supreme Court guidance is when you’re in a vehicle, you start a
vehicle, you have full control of the vehicle, you might not have rolled off
the –onto—well, you don’t even have to roll onto the streets. You may not
have actually put it in gear, but if you have the opportunity and it’s under
your control, it’s – it’s under your control that you can do it at any point that
you want. And I think that’s part of the rationale is that you don’t sit there
and before you have an opportunity to put it in gear and cause trouble, you
can be stopped and found guilty.

We find it significant that the trial court did not make factual findings or

statements regarding defendant’s credibility. Nor, is there any indication that the

court found defendant’s version of events to be implausible or an unreasonable

hypothesis of innocence. The trial court seems to have ruled that the possibility

and opportunity to move the vehicle is sufficient to convict defendant of the crime

19-KP-286 6

charged. We disagree. It is axiomatic that State must prove defendant committed

a crime, not merely that the situation presented an opportunity to commit a crime.

Jurisprudence on this issue persuades us that the ruling of the trial court must

be reversed. Prior cases affirming a conviction for driving while intoxicated have

involved factual scenarios in which the defendant was found sleeping in a vehicle

stopped in the middle of a roadway, State v. Lewis, 17-0081 (La. 10/18/17), 236

So.3d 1197, stopped in a lane of traffic on the Jefferson Highway. State v.

Winstead, 16-217 (La. App. 5 Cir. 5/26/16), 193 So.3d 565, writ not considered,

16-1380 (La. 5/19/17), 219 So.3d 335, at a gas station pressed against a raised

sidewalk. State v. Wall 14-539 (La. App. 5 Cir. 12/23/14), 209 So.3d 962, stopped

on the roadway on the lower level of the Westbank Expressway. State v. White,

09-1071 (La. App. 5 Cir. 6/29/10), 44 So.3d 750, writ granted, 10-1799 (La.

2/25/11), 58 So.3d 454, and rev'd on other grounds, 10-1799 (La. 7/1/11), 68

So.3d 508, on the sidewalk, half in a parking lot, with its front end wedged against

a brick column in front of a business, State v. Abarca, 07-0405 (La. App. 1 Cir.

9/14/07), 2007 WL 2685051, and in the median, State v. Blancaneaux, 535 So.2d

1338 (La. App. 5 Cir. 1988). All of these cases present factual scenarios in which

a finding that an intoxicated defendant could not have gotten to the location

without driving under the influence of alcohol was reasonable. Further, none of

these defendants presented a reasonable hypothesis of innocence. Thus, a

conviction on circumstantial evidence was supported by the totality of the

circumstances.

In State v. Rossi, 98-1253 (La. App. 5 Cir. 4/14/99), 734 So.2d 102, writ

denied, 99-0605 (La. 4/23/99), 742 So.2d 886, this Court overturned a conviction

of driving while intoxicated where a defendant was found sitting in the driver's seat

of his car while parked in front of his house. The car was running, but no evidence

was presented to indicate that the defendant was in the process of operating the

19-KP-286 7

vehicle. The Rossi court found the total circumstances, even when viewed most

favorable toward the prosecution, simply do not show sufficient physical handling

of the controls of the car to convict him of “operating” the vehicle. Rossi, 734

So.2d 102, 103, (citing City of Bastrop v. Paxton, supra).

We find the Rossi case to be factually comparable to the matter before us

and find the reasoning in Rossi to be sound. We further find there is insufficient

evidence to support the conviction. Considering the totality of the circumstances,

the State failed to prove the elements of the crime beyond a reasonable doubt. The

total circumstances, even when viewed most favorably toward the prosecution,

simply do not show sufficient physical handling of the controls of the vehicle by

defendant to convict him of “operating” the vehicle. City of Bastrop, supra. The

total circumstances did not exclude the hypothesis of innocence that defendant did

not operate the vehicle while intoxicated. Accordingly, we reverse defendant’s

conviction and sentence.

WRIT GRANTED; CONVICTION AND SENTENCE REVERSED

19-KP-286 8

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 2, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KP-286
E-NOTIFIED
2ND PARISH COURT (CLERK)
HONORABLE ROY M. CASCIO (DISTRICT JUDGE)
J. THOMAS BEASLEY (RELATOR) TERRY M. BOUDREAUX (RESPONDENT) THOMAS J. BUTLER (RESPONDENT)
DARREN A. ALLEMAND (RESPONDENT)

MAILED
HON. PAUL D. CONNICK, JR. (RESPONDENT)
DISTRICT ATTORNEY
LONNIE P. TAIX (RESPONDENT)
ASSISTANT DISTRICT ATTORNEYS
JEFFERSON PARISH DISTRICT ATTORNEY'S
OFFICE
200 DERBIGNY STREET
GRETNA, LA 70053