State of Louisiana v. Kyle D. Hodde AKA - Kyle Daniel Hodde

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-455

STATE OF LOUISIANA

VERSUS

KYLE D. HODDE

AKA KYLE DANIEL HODDE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 138399
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED.

John P. Calmes Jr.
Attorney At Law
329 St. Ferdinand Street
Baton Rouge, LA 70802
(225) 387-2200
COUNSEL FOR DEFENDANT-APPELLANT:
Kyle D. Hodde

Keith A. Stutes
District Attorney, Fifteenth Judicial District
Cynthia Simon
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

John Childers, a trooper with the Louisiana State Police, Troop I, was

patrolling Interstate 10 between Lafayette and Baton Rouge on October 16, 2010,

when he was called to an accident scene on I-10. At trial, he testified that the

defendant, Kyle D. Hodde, was involved in a two-car accident, wherein the

defendant’s vehicle rear-ended another car. When the trooper approached the

defendant, who was outside his car, the trooper saw an unopened six pack of beer

outside the driver’s side door. Although the airbag of his vehicle had deployed, the

defendant did not appear to be injured and did not request medical assistance. Even

though the trooper could smell the odor of alcohol on the defendant’s breath, the

defendant denied he had been drinking. The trooper testified that the defendant’s

eyes were bloodshot and that his speech was slurred. The trooper read the

defendant his rights and asked him if he would take a field sobriety test. The

defendant agreed. The trooper conducted a horizontal gaze nystagmus test (HGN)

and had the defendant perform the walk-and-turn and the stand-on-one-leg tests.

The defendant failed the field sobriety tests and was arrested. The defendant

refused a breathalyzer test.

The defendant was charged with operating a vehicle while intoxicated, third

offense, a violation of La.R.S. 14:98. He was convicted as charged by a jury on

February 11, 2014. Sentencing was held on August 20, 2014. Prior to sentencing,

the trial court addressed and denied a motion for a new trial. The defendant was

sentenced to three years at hard labor with all but one year suspended, credit for

time served, and two years active probation.

The defendant has perfected a timely appeal, wherein he asserts that the

evidence was insufficient to support the verdict of driving while intoxicated, third

offense, and that the trial court erred when it denied his motion for a new trial.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court patent for errors patent on the face of the record. After reviewing the

record, we find no errors patent.

ASSIGNMENTS OF ERROR

The defendant alleges two assignments of error: 1) the evidence was

insufficient to sustain the verdict, and 2) the trial court erred when it denied his

motion for a new trial.

Regarding assignment of error number two, the defendant made an oral

motion for new trial. In his oral motion for a new trial, the defendant alleged the

evidence was insufficient to sustain the verdict. Louisiana Code Criminal

Procedure Article 852 provides, in pertinent part, that “[a] motion for a new trial

shall be in writing[.]” Therefore, a claim of insufficiency of the evidence to support

the conviction via the oral motion was not preserved for review by this court. State

v. Peterson, 96-1663 (La.App. 3 Cir. 6/4/97), 696 So.2d 211, writ denied, 97-1742

(La. 11/26/97), 703 So.2d 644. See also, State v. Ballom, 96-1443 (La. App. 4 Cir.

7/3/96), 678 So.2d 53.

However, as assignment of error number one alleges insufficient evidence,

we will review the sufficiency of the evidence submitted at trial. In brief, the

defendant argues that Trooper Childers was the only witness. Since the defendant

refused the breathalyzer test, there was no direct evidence of intoxication. The

trooper’s testimony was the only proof offered of the defendant’s condition. The

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defendant, therefore, asserts that all the evidence was circumstantial, including

what was observed on the trooper’s unit camera of what transpired during the

initial contact with the defendant and of the field sobriety test.

In State v. Brown, 03-897, p. 22 (La. 4/12/05), 907 So.2d 1, 18, cert. denied,

547 U.S. 1022, 126 S.Ct. 1569 (2006), the supreme court set forth the standard for

determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a
conviction, Louisiana appellate courts are controlled by the standard
enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). Under this standard, the appellate court “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. Neal, 00-0674 (La.6/29/01) 796 So.2d 649, 657
(citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

Circumstantial evidence is evidence from which the main fact can be

inferred, using reason and common experience, from proof of collateral facts and

circumstances. State v. Westmoreland, 10-1408 (La.App. 3 Cir. 5/4/11), 63 So.3d

373, writ denied, 11-1660 (La. 1/20/12), 78 So.3d 140. Where the conviction is

based on circumstantial evidence, in order to convict, “assuming every fact to be

proved that the evidence tends to prove, in order to convict, it must exclude every

reasonable hypothesis of innocence.” La.R.S. 15:438.

The defendant was charged with and convicted of driving while intoxicated

in violation of La.R.S. 14:98. In order to convict an accused of driving while

intoxicated, the prosecution need only prove that a defendant was operating a

vehicle and that the defendant was under the influence of alcohol or drugs. La.R.S.

14:98(A)(1)(a); State v. Minnifield, 31,527 (La.App. 2 Cir. 1/20/99), 727 So.2d

1207, writ denied, 99-516 (La. 6/18/99), 745 So.2d 19. Some behavioral

manifestations, independent of any scientific test, are sufficient to support a charge

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of driving while intoxicated. State v. Blackburn, 37,918 (La.App. 2 Cir. 1/28/04),

865 So.2d 912. It is not necessary that a condition of intoxication be based upon a

blood or breath alcohol test, and the observations of an arresting officer may be

sufficient to establish the defendant’s guilt, since intoxication is an observable

condition about which a witness may testify. Minnifield, 727 So.2d 1207. What

behavioral manifestations are sufficient to support a charge of driving while

intoxicated must be determined on a case-by-case basis. Id. Furthermore, a

subjective opinion that a subject failed a field sobriety test may constitute

sufficient evidence of intoxication to support an operation of a vehicle while

intoxicated conviction. Id.

In brief, the defendant points out that Trooper Childers admitted that there

were other factors that can cause bloodshot eyes. The trooper also admitted that he

could not tell from the smell of alcohol on the defendant’s breath what type of

alcohol the defendant consumed, how much, or when it was consumed. The

defendant argues that the trooper did not state whether the smell of alcohol was

faint, moderate, or strong, “as common in OWI investigations.” The defendant

argues that his speech did not appear to be slurred on the video of the accident

investigation as he was speaking with the trooper. Trooper Childers admitted the

defendant’s words did not always appear to be slurred on the video but noted that

passing traffic also muted the voices.

The defendant further argues that the conditions under which he took the

field sobriety test were not optimal; the shoulder was substantially sloped, “pretty

heavy” traffic was speeding by, it was windy, and “strobe” lights from the police

cars were flashing both in front of and behind the defendant as he was performing

the tests.

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Furthermore, the defendant argues that the trooper admitted he did not

complete the HGN test, spending only twelve seconds performing the test when it

generally takes sixty to ninety seconds to complete the full test procedure. The

defendant further argues:

Additionally, although Trooper Childers testified that strobe lights
would not affect the HGN test, experience and common sense tell us
this is not true. In this case, both Appellant and Trooper Childers were
facing flashing bar lights during the test. Anybody who has been
around glaring lights knows that they make any movement appear
jerky. In this case, not only did the flashing strobe lights affect
appellant[’]s ability to follow the stimulus but they also affected
Trooper Childers[’] ability to view Appellant’s eyes.

Finally, the defendant contends that the trooper agreed it was windy that

evening and wind could affect balance. He points out that he had also just been in a

collision that was sufficient to have deployed his airbag. The defendant argues that

the entire field sobriety test should be “totally” disregarded.

Trooper Childers testified he was a twenty-two year veteran of the Louisiana

State Police. He stated that he executed over one hundred driving while intoxicated

arrests during that time. He also attended several training classes on how to

administer the field sobriety tests. He further disagreed that the shoulder of the

road was “substantially” sloped. He stated he never would have performed the tests

in that location if that had been the case. A review of the video of the roadside

sobriety tests showed that there was a very small incline of the shoulder from the

roadway. It was not substantially sloped.

Moreover, the video showed that the area the defendant performed the walk-

and-turn and the stand-on-one-leg test was sufficiently lit. While initially the two

patrol cars, in between which the defendant performed the test, were close

together, one of the cars was moved forward several yards away from the area, and

the area was lit by the head lights of Trooper Childers’ vehicle. Also, the lights

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flashing on the patrol units were significantly different from a “strobe” light. While

there were vehicles, including large trucks, driving by, most of the vehicles had

pulled over to the inside lane as required by vehicles on a highway where police

cars are parked on the shoulder addressing traffic issues.

Trooper Childers agreed that he abbreviated the HGN tests; however, he

insisted what he performed was sufficient when combined with the results or

“clues” from the other two tests. He explained that besides performing the walk-

and-turn and the stand-on-one-leg test, following the instructions was also a part of

the tests. A review of the video showed that the trooper demonstrated twice how to

walk an imaginary line, heel-to-toe, with his arms at his side, and turning with

small steps to walk back nine steps, heel-to-toe. He testified that the defendant did

not follow the instructions while performing the tests. The trooper testified that on

the walk-and-turn test, instead of taking nine steps and turning as he was

instructed, the defendant took thirteen steps, used his arms to balance himself, and

several times stepped out of line.

In the video, the defendant noticeably swayed, held his arms out to balance

himself, stepped outside the line he was walking, even crossing one leg over the

other to catch himself.

The trooper described the stand-on-one leg test, which he stated was also a

“divided attention test.” He explained the test to the defendant, which required him

to stand with his arms at his side, raise one foot to a forty-five degree angle, and

count “one thousand one, one thousand two, one thousand three, for thirty (30)

seconds. . . . [I]f that individual drops his foot, if he uses his arms to balance, if he

sways, or if he hops, these are all indications that the person may be intoxicated.”

The video showed the defendant swaying, using his arms for balance, and dropping

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his foot a few times during the test. We note that the trooper turned the defendant

away from the traffic, so that he was looking towards the woods, while he

performed the test.

The trooper then stated:

Again, it goes back to the clues. If we don’t have four (4) clues
during the Horizontal Gaze Nystagmus test, if we don’t have two (2)
clues during the Walk-and Turn test, if we don’t have two (2) clues
during the One-Legged Stand test because the person may physically
can’t do it, then that’s not an – in our training, that’s not an indication
that someone’s intoxicated.

....

Basically, I totaled up all my clues, and I determined that based
on my training that Mr. Hodde was intoxicated and placed him under
arrest.

The trooper testified that he did not repeat the field sobriety test once he and

the defendant arrived at the police station. He further stated that after arriving at

the station, the defendant refused to take a breathalyzer test to establish

blood/alcohol content.

Viewed in a light most favorable to the prosecution, we find the evidence

was sufficient to sustain the verdict beyond a reasonable doubt. The jury heard all

of the testimony, viewed the video showing the defendant’s performance during

the field sobriety tests, and heard all of the arguments. The trier of fact makes

credibility determinations and may accept or reject the testimony of any witness.

See State v. Tompkins, 403 So.2d 644 (La.1981). Trooper Childers, a twenty-two

year veteran with law enforcement, testified regarding his observations, explaining

the testing procedure, and gave a basis for his conclusion that the defendant was

intoxicated at the time he was involved in a two-car accident on the highway.

Furthermore, the defendant refused to take the breathalyzer test. The fact of his

refusal supported an inference that he sought to avoid detection of the alcohol in

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his system. La.R.S. 32:666. See also State v. Kestle, 07-1573 (La. 12/2/08), 996

So.2d 277.

The jury obviously accepted the trooper’s testimony as credible and

discarded the defendant’s arguments that other factors caused him to fail the field

sobriety tests.

CONCLUSION

The defendant’s conviction is affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules−Courts of Appeal, Rule 2−16.3.

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