State v. Taylor8/18/2004
Defendant, Allen DeWayne Taylor, was convicted of DWI, fourth offense, after a bench trial. The court denied timely-filed motions for new trial and post-verdict judgment of acquittal, then imposed a sentence of 15 years at hard labor, with all but 60 days without benefit suspended, as required by the applicable version of La. R.S. 14:98. Defendant was also placed on supervised probation for four years. A timely-filed motion for reconsideration was denied. For the reasons set forth below, we affirm.
Discussion
Sufficiency of the Evidence
On appeal, defendant argues that the evidence was "exceedingly weak," consisting only of the subjective observations of the arresting officer and the results of the horizontal gaze nystagmus ("HGN") test.
The trial transcript shows that when testimony of the HGN results and the officer's subjective opinion of defendant's intoxication were admitted into evidence, there was no contemporaneous objection. Furthermore, the motions for new trial and post-verdict judgment of acquittal are silent on the argument raised by defendant for the first time on appeal, that the testimony of the arresting officer did not meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993).
An irregularity or error cannot be asserted after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ *199 denied, 97-1203 (La.10/17/97), 701 So.2d 1333; **2 State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App. 2d Cir.1989), writ denied, 558 So.2d 581 (La.1990). Furthermore, the holdings of Daubert, supra, and State v. Foret, supra, are not applicable to a challenge to the testimony of a lay witness in a DWI case. State v. Bowen, 01-594 (La.App. 5th Cir.12/26/01), 806 So.2d 749, writ denied, 02-0264 (La.10/25/02), 827 So.2d 1170. Nonetheless, we will review the evidence for sufficiency.
The 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bell, 37,675 (La.App.2d Cir.09/26/03), 855 So.2d 946. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992).
To convict an accused of driving while intoxicated, the prosecution need only prove that defendant was operating a vehicle and that he was under the influence of alcohol or drugs. State v. Holladay, 38,354 (La.App.2d Cir.05/12/04), 873 So.2d 855; State v. Withers, 36,001 (La.App.2d Cir.06/12/02), 821 So.2d 556; State v. Minnifield, 31,527 (La.App.2d Cir.01/20/99), 727 So.2d 1207, writ denied, 99-0516 (La.06/18/99), 745 So.2d 19. Some behavioral manifestations, independent of any scientific test, **3 are sufficient to support a charge of driving while intoxicated. State v. Holladay, supra; State v. McDonald, 33,013 (La.App.2d Cir.03/01/00), 754 So.2d 382. The behavioral manifestations that are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. State v. Holladay, supra; State v. Self, 36,887 (La.App.2d Cir.04/09/03), 842 So.2d 1240. It is not necessary that a conviction for DWI be based upon a blood or breath alcohol test, and the observations of the arresting officer
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