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State v. Bell9/26/2003
they were walking toward the porch when he called out that he needed to speak to the driver. Dy. Williams reiterated that defendant admitted, at the detention center, that he had been driving the vehicle just before the traffic stop.
The evidence, viewed in the light most favorable to the state, consists of Deputy Williams' observation of defendant getting out of the driver's side of the Blazer, defendant's admission to the officer that he was the driver and Carter's inability to keep the story straight.
Defendant admitted that he had two prior DWI convictions and he conceded that he was very drunk at the time of the incident. The jury was in the best position to determine the credibility of the witnesses. Looking at the testimony in accordance with the dictates of Jackson v. Virginia, supra, the jury could have found the essential elements of the charged offense proven beyond a reasonable doubt. This assignment of error lacks merit.
Testimony of ADA Strider
Defendant's second assignment of error is that the trial court erred in allowing assistant district attorney Cliff Strider to both act as an advocate for the state and testify on behalf of the prosecution. Defendant did not make a contemporaneous objection to Strider's testimony and has not cited any authority in support of this assignment of error.
The jurisprudence holds that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La. C. Cr. P. art. 841; State v. Bosley, supra; 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). This assignment of error is not properly before the court and is without merit.
Error in Sentencing
Defendant argues that the trial court should have imposed sentence in accordance with the reduced range provided by the legislature via an amendment to La. R.S. 14:98 which was enacted after defendant committed the instant offense. We agree.
In accordance with the ruling of the supreme court in State v. Mayeux, 01-3195 (La. 06/21/02), 820 So. 2d 526, we vacate defendant's sentence and remand the matter for resentencing. Although defendant committed the instant offense prior to the enactment of 2001 La. Acts 1163, the act became effective on August 15, 2001, prior to the imposition of sentence. Therefore, under State v. Mayeux, supra, the amended sentencing provisions are to be applied in this case. State v. Self, 36,887 (La. App. 2d Cir. 04/09/03), 842 So. 2d 1240; State v. Eppinette, 36,825 (La. App. 2d Cir. 02/11/03), 838 So. 2d 189; State v. Nelson, 36,266 (La. App. 2d Cir. 08/14/02), 823 So. 2d 1112.
Conclusion
For the reasons set forth above, defendant's conviction is affirmed. His sentence is hereby vacated and the matter is remanded to the trial court for rensentencing under La. R.S. 14:98(D) as amended by the legislature in 2001.
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