                              Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 18th day of October, 2017, are as follows:




PER CURIAM:



2017-OK-0081      STATE OF LOUISIANA v. CALVIN LEWIS (Parish of Jefferson)

                  Finding the evidence sufficient, when viewed in the light most
                  favorable to the prosecution under the due process standard of
                  Jackson v. Virginia, for the trial court to reasonably conclude
                  defendant operated his vehicle while intoxicated until it
                  stalled, we reverse the court of appeal and reinstate defendant’s
                  conviction and sentence.
                  REVERSED
10/18/17


                     SUPREME COURT OF LOUISIANA


                                No. 2017-OK-0081

                            STATE OF LOUISIANA

                                     VERSUS

                                CALVIN LEWIS


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
             FIFTH CIRCUIT, PARISH OF JEFFERSON



PER CURIAM

      On March 27, 2015, a Jefferson Parish Sheriff’s deputy encountered a truck

stopped in the middle of the roadway late at night. He found defendant inside

attempting to restart the truck. Defendant, who smelled of alcohol and whose

speech was slurred, explained that the truck had just stalled and would not restart.

The deputy noticed that the truck’s engine was still quite warm when he attempted

to restart it with jumper cables. The truck could not be restarted, however, and was

eventually towed away. There were no alcohol containers in or around the vehicle.

      When defendant got out of the truck, he leaned on it to steady himself.

Defendant was arrested after he failed field sobriety tests. At the Westwego Police

Department, defendant registered a blood alcohol level of 0.19. After he was

Mirandized, defendant claimed he drank one beer several hours earlier in the

afternoon.

      Defendant was charged with misdemeanor first-offense driving while

intoxicated, La.R.S. 14:98. At trial, defendant denied he was in the truck

attempting to restart it when the deputy arrived. Defendant claimed that he drank a
half pint bottle of Wild Irish Rose1 after the vehicle stalled, threw the empty bottle

into the grass, and he was just leaving to walk to his cousin’s house for assistance

when the deputy arrived. The trial court found him guilty as charged and sentenced

him to serve 60 days in parish jail, suspended, 48 hours of in-home incarceration,

and 11 months of probation.

       In a split decision, the court of appeal reversed defendant’s conviction and

sentence. State v. Lewis, 16-0614 (La. App. 5 Cir. 12/19/16) (unpub’d). While

recognizing that the State presented sufficient evidence that defendant was

intoxicated, the majority of the panel found the circumstantial evidence insufficient

to exclude the reasonable hypothesis of innocence advanced by defendant at trial,

i.e., that he became intoxicated by drinking Wild Irish Rose after the vehicle

stalled. In addition, the majority of the panel found that, although defendant was

intoxicated when he repeatedly turned the key in the ignition, this did not

constitute operation of the vehicle within the meaning of La.R.S. 14:98. In

reaching that conclusion, the majority relied on jurisprudence from other

jurisdictions where courts have found that when a vehicle is incapable of

immediately being placed into motion, due to mechanical problems, a lack of gas,

or other problems that cannot be easily overcome, the accused cannot be found to

have operated the vehicle even if he attempts to start it.

       Judge Gravois dissented, finding that defendant operated the vehicle within

the meaning of La.R.S. 14:98 the moment he attempted to start the vehicle as the


       1
          The popularity of cheap fortified wines evidently began during the Great Depression.
See Kevin Zraly, Kevin Zraly’s American Wine Guide (2006) p. 38 (“Prohibition produced the
Roaring Twenties and fostered more beer and distilled-spirit drinkers than wine drinkers,
because the raw materials were easier to come by. But fortified wine, or medicinal wine tonic—
containing about 20 percent alcohol, which made it more like a distilled spirit than regular
wine—was still available and became America’s number one wine. Thunderbird and Wild Irish
Rose, to name two examples, are fortified wines. American wine was soon more popular for its
effect than its taste; in fact, the word wino came into use during the Depression to describe those
unfortunate souls who turned to fortified wine to forget their troubles.”). Like other flavored
fortified wines in its niche—Night Train and Thunderbird—Wild Irish Rose is memorialized in
                                                2
deputy approached. Moreover, Judge Gravois found that the trial court reasonably

discounted defendant’s testimony that he became intoxicated after the car stalled

by drinking a small bottle of wine under the circumstances here because the

vehicle’s engine remained very warm and the deputies did not find an empty bottle

of Wild Irish Rose in or near defendant’s truck. We agree with the latter contention

and find it unnecessary to address the former.

        Under the due process standard of Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), “the relevant

question 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 beyond a reasonable doubt.” When reviewing a conviction based upon

circumstantial evidence, the reviewing court must determine whether, viewing the

evidence in the light most favorable to the prosecution, a reasonable trier of fact

could have concluded beyond a reasonable doubt that every reasonable hypothesis

of innocence had been excluded. See State v. Morris, 414 So.2d 320, 321–22 (La.

1982) (citation omitted); see also State v. Captville, 448 So.2d 676, 680 (La. 1984)

(“When a case involves circumstantial evidence, and the jury reasonably rejects the

hypothesis of innocence presented by the defendant’s own testimony, that

hypothesis falls, and the defendant is guilty unless there is another hypothesis

which raises a reasonable doubt.”). The reviewing court “does not determine

whether another possible hypothesis has been suggested by defendant which could

explain the events in an exculpatory fashion[; rather, the reviewing court] evaluates

the evidence in the light most favorable to the prosecution and determines whether

the alternative hypothesis is sufficiently reasonable that a rational factfinder could

not ‘have found proof of guilt beyond a reasonable doubt.’” Captville, 448 So.2d at


song.
                                          3
680 (emphasis in original; citation omitted).

      Here, the court of appeal correctly found the evidence of defendant’s

intoxication to be clear. Although defendant could have consumed a half pint of

Wild Irish Rose after his vehicle stalled, that hypothesis, after viewing all of the

evidence in the light most favorable to the prosecution—including the deputy’s

observation of the warm engine, defendant’s level of intoxication in comparison to

the quantity of alcohol he claimed to consume, and his changed version of events

between the night of the arrest and trial—is not so reasonable that a rational

factfinder could not have found proof of guilt beyond a reasonable doubt that

defendant operated his vehicle while intoxicated until it stalled.

      To “operate” a vehicle in Louisiana, a person must exercise or 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.” State v. Rossi, 98-1253, p. 1 (La. App. 5 Cir. 4/14/99), 734 So.2d 102,

102–03. It is not necessary that the actions have any effect or cause the vehicle to

move. See State v. Jones, 97-1687, pp. 3–4 (La. App. 1 Cir. 5/15/98), 714 So.2d

819, 821 (“operating” shown when deputy awoke a drunken driver, asleep at the

wheel of a car parked in a convenience store parking lot with its engine running,

and the driver revved the motor and tried to shift); State v. Brister, 514 So.2d 205,

207 (La. App. 3 Cir. 1987) (“The term ‘operate’ includes merely controlling the

vehicle. Doing anything with regard to the mechanism of a motor vehicle, whether

it has any effect on the engine or not, is also included in the term ‘operate.’”).

      While the question of whether defendant’s attempts to start a vehicle that

could not be started while he was intoxicated constituted operating the vehicle in

the context of La.R.S. 14:98 presents an interesting question of law, the trial court

found defendant guilty after making a credibility determination and on the basis of

                                           4
the State’s evidence that defendant actually drove the car while intoxicated before

it stalled. As discussed above, that determination appears reasonable, and therefore

the legal question need not be addressed at this juncture. Finding the evidence

sufficient, when viewed in the light most favorable to the prosecution under the

due process standard of Jackson v. Virginia, for the trial court to reasonably

conclude defendant operated his vehicle while intoxicated until it stalled, we

reverse the court of appeal and reinstate defendant’s conviction and sentence.

REVERSED




                                         5
