State of Louisiana Versus Rene Fuentes

Louisiana Court of Appeal·Decided November 2, 2022·No. 22-KA-89·Unknown

Opinion

STATE OF LOUISIANA NO. 22-KA-89 VERSUS FIFTH CIRCUIT RENE FUENTES COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 20,330, DIVISION "D"

HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

November 02, 2022

SUSAN M. CHEHARDY

CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and John J. Molaison, Jr.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING SMC HJL JJM

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Joel T. Chaisson, II Louis G. Authement

COUNSEL FOR DEFENDANT/APPELLANT, RENE FUENTES Lieu T. Vo Clark

CHEHARDY, C.J.

Defendant-appellant, Rene Fuentes, appeals the trial court’s ruling denying his motion to suppress evidence. He also contends that the sentence imposed is excessive and that the trial court erred in denying his motion to reconsider sentence. For the reasons that follow, we affirm the denial of defendant’s motion to suppress as well as defendant’s conviction. We pretermit discussion of defendant’s second and third assignments of error related to his sentence, however, and remand for resentencing.

STATEMENT OF FACTS AND PROCEDURAL HISTORY On June 20, 2020, law enforcement received a call from a Popeye’s Restaurant in Destrehan reporting that someone driving a light-colored Buick SUV allegedly fell asleep in the drive-thru line. After arriving at the Popeye’s and determining that the vehicle had departed up River Road, deputies eventually located a vehicle meeting the description, followed it, and, after allegedly seeing the vehicle swerve toward the center line at least twice, pulled over the driver, who denied being intoxicated.

The deputies did not issue a citation for any moving violation. They asked defendant to perform field sobriety tests, however, for which he performed poorly. Defendant subsequently was charged by bill of information with driving a vehicle while intoxicated (DWI) subsequent to a fourth offense, in violation of La. R.S. 14:98.1 Defendant initially pled not guilty but later withdrew his not-guilty plea and entered a plea of guilty, while reserving his rights to appeal the trial court’s denial

1 Appellant previously pled guilty at least five other times to driving under the influence of alcohol—three times in Jefferson Parish and twice in St. Charles Parish. According to the application for a search warrant, which was introduced into evidence by defense counsel, a computer search indicated that defendant has had 15 previous DWI arrests since 1985, with the last arrest being in May 2009, after which he was sentenced to serve six years imprisonment.

of his motion to suppress, as well as any excessive sentence, as permitted by State v. Crosby, 338 So.2d 584, 588 (La. 1976). See also State v. Ramsey, 10-333 (La. App. 5 Cir. 1/25/11), 60 So.3d 36, 40 (a defendant may be allowed appellate review after entering a guilty plea if, at the time of his plea, he expressly reserves his right to appeal a specific adverse ruling).

Defendant filed a motion to suppress arguing that because there was no traffic violation, the deputy lacked reasonable suspicion to stop him. Defendant claims that he never left his lane of travel so as to violate La. R.S. 32:79.2 As such, the stop constituted an unreasonable and unconstitutional seizure of his person and his vehicle in violation of the Fourth Amendment of the U.S. Constitution. In opposition, the State argued that defendant’s vehicular movements, as recorded on the Mobile Video Recorder (“MVR”), show that he swerved toward or across the center line of the roadway. As such, the deputy’s observations created reasonable suspicion for the stop.

At the hearing on the motion to suppress, the State and defendant referred to the testimony and evidence from the preliminary examination (P.E.) and admitted into evidence the transcript from the P.E. hearing. The trial court evaluated the following evidence when adjudicating defendant’s motion to suppress:

Deputy Jerry Fountain of the St. Charles Parish Sheriff’s Office testified at both the preliminary examination hearing and the motion to suppress hearing that he and Deputy Jeff Mahan responded to the call at Popeye’s, but when they reached Popeye’s, the suspicious vehicle already had left the area and reportedly was traveling west on River Road. The deputies later located a vehicle in a convenience store parking area that matched the description of the vehicle reported at Popeye’s. When that vehicle left the convenience store, the deputies followed it

2 La. R.S. 32:79 (1) provides: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

and observed defendant swerve toward the center line, hitting the line at least a couple of times. When they stopped the vehicle, the deputies approached and Deputy Fountain requested defendant’s driver’s license. Deputy Fountain testified that defendant’s eyes were red and glassy and that his speech was somewhat slurred. He confirmed that defendant had been at Popeye’s. Deputy Fountain also noticed that defendant was reaching to his right and pushing down on something. Deputy Fountain asked defendant to exit the vehicle and to submit to a field sobriety test. Deputy Fountain indicated that he could smell alcohol on defendant’s breath when he stepped out of the car. Deputy Fountain conducted a Horizontal Gaze Nystagmus (HGN) test, noting nystagmus at maximum deviation, lack of smooth pursuit, and nystagmus onset prior to forty-five degrees, and determined that defendant was impaired.

Deputy Fountain also asked defendant to perform the walk-and-turn test. He stated that he told defendant three times how to perform the test, but defendant did not perform the test correctly the first two times. On the third attempt, defendant “slightly fell off line” and then walked nine steps but did so without touching heal to toe, as instructed. He turned and walked back, again without touching heal to toe. Defendant declined to take the one-leg-stand test because of a prior injury. Accordingly, Corporal Scott Huff, a drug-recognition expert, performed the Modified Romberg Balance test and the Lack of Convergence test on defendant, which presented additional clues of impairment. Corporal Huff explained that the Lack of Convergence test addresses four drug categories: depressants, inhalants, dissociative anesthetics, and cannabis. He testified that defendant’s left eye did not converge during the test, which was a symptom under four different drug categories. Corporal Huff further stated that defendant’s girlfriend, who showed up later on the scene, confirmed that defendant took Xanax, a CNS depressant.

Deputy Fountain testified that the six clues needed for a DWI arrest were satisfied with the HGN alone, but that he had at least seven or eight clues with the walk-and-turn test and with Corporal Huff’s tests. Therefore defendant was placed in custody and put in Deputy Fountain’s unit. Upon searching the vehicle, Corporal Huff found a small bottle of Crown Royal that was three-quarters full on the passenger seat. A receipt found in the vehicle confirmed that defendant had purchased the bottle that same afternoon. The deputies released the vehicle to defendant’s girlfriend and arrested defendant for possessing an open container of an alcoholic beverage and for a DWI.

Based on the evidence, the trial court denied the motion to suppress.

Defendant thereafter changed his plea to guilty, reserving his rights to appeal the denial of the motion to suppress and any excessive sentence.

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