STATE v. SPICER (2025)

The defendant, Timothy B. Spicer, was charged by bill of information with aggravated obstruction of a highway of commerce (count one), in violation of La. R.S. 14:96(A) and (B); aggravated flight from an officer (count two), in violation of La. R.S. 14:108.1(C) and (E)(1); and aggravated criminal damage to property (count three), in violation of La. R.S. 14:55. He pled not guilty and, following a jury trial, was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal and sentenced him to concurrent terms of ten years imprisonment at hard labor on each count. The State filed a habitual offender bill of information, and the trial court adjudicated the defendant a third-felony habitual offender, vacated the prior sentences, and sentenced him to concurrent terms of twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence on each count.¹ The defendant now appeals, designating four assignments of error. For the following reasons, we reverse his convictions, vacate his habitual offender adjudication, and vacate his sentences.

FACTS

Shortly after midnight on June 9, 2022, Lieutenant Scott Crain with the St. Tammany Parish Sheriff's Office (“STPSO”) observed a 2014 Jeep Compass with an allegedly inoperable license plate light traveling westbound on Highway 190 in Lacombe. Lieutenant Crain, who was in an unmarked police vehicle (a Dodge pickup truck) equipped with lights and sirens, attempted to initiate a traffic stop of the Jeep, which was being driven by a person later identified as the defendant. The defendant refused to pull over. Other STPSO officers were dispatched to assist Lieutenant Crain, including Lieutenant Curtis Finn,² who was also driving an unmarked police vehicle (a Dodge pickup truck), and Deputy Terry Poynter, who was driving a marked police vehicle. During the pursuit, the defendant struck Lieutenant Crain's vehicle and then jumped off a bridge into the bayou and fled. The defendant was located walking down the highway twenty hours later and arrested.

ASSIGNMENT OF ERROR ONE

In his first assignment of error, the defendant asserts the evidence was insufficient to sustain his convictions.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 2013-2973 (La. 2/21/14), 133 So.3d 1255, 1258 (per curiam); see also La. Code Crim. P. art. 821(B).

The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. See State v. Mire, 2014-2295 (La. 1/27/16), 269 So.3d 698, 703 (per curiam). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. The weight given evidence is not subject to appellate review; therefore, evidence will not be reweighed by an appellate court to overturn a fact finder's determination of guilt. State v. Kirsh, 2017-0231 (La. App. 1st Cir. 11/1/17), 234 So.3d 941, 945, writ denied, 2017-2169 (La. 11/20/18), 256 So.3d 993, cert. denied, 586 U.S. 1164, 139 S.Ct. 1207, 203 L.Ed.2d 232 (2019).

At trial, Lieutenant Crain testified he was parked in a parking lot next to Highway 190 in his unmarked police vehicle when he observed a Jeep drive by with an inoperable license plate light.³ Lieutenant Crain described the conditions of that night as clear and said there was good visibility with no rain. Lieutenant Crain testified he began driving behind the Jeep to verify it did not have a light illuminating the license plate and then notified Lieutenant Finn. The State questioned Lieutenant Crain as follows:

Q. So you didn't just immediately hit your lights and just saw him pass; right? You got behind him?

A. Yes, sir.

Q. Followed him and got up close and verified that the license plate light was not working?

A. Yes, sir. It was some distance from where I was initially stationary.

Q. But you got into a close position to where you could be certain that the license plate light was not operable?

A. Yes, sir.

Lieutenant Crain said he activated the lights on his police vehicle after Lieutenant Finn got behind him, but the defendant did not pull over and maintained his speed of about forty-five miles per hour. The posted speed limit was fifty-five miles per hour. At that point, Lieutenant Crain initiated his siren and pulled around in front of the Jeep after the defendant continued to drive. Even though Lieutenant Crain's vehicle had no identifying markings as a law enforcement vehicle, he testified that his goal in doing so was to make the defendant “aware that law enforcement was trying to stop him.” Lieutenant Crain said Lieutenant Finn's lights were activated on his unmarked police vehicle, but he did not know if Lieutenant Finn's siren was on at that time. According to Lieutenant Crain, the defendant attempted to pass him by driving in the eastbound lane, with his rate of speed fluctuating between forty-five and sixty miles per hour, which was roughly within the posted speed limit. Lieutenant Crain testified that, at one point, a large box truck approached in the eastbound lane and had to “completely get off the road into the gravel shoulder” to avoid hitting the Jeep. Lieutenant Crain said he was located a good distance in front of the defendant when he stopped his police vehicle on the bridge at Bayou Castine. The defendant struck Lieutenant Crain's vehicle, became wedged between the police vehicle and the bridge railing, and continued to rev his engine. Lieutenant Crain testified he gave the defendant verbal commands to show his hands, and the defendant exited his vehicle, looked at the officers, and jumped off the bridge.

On cross-examination, the defense asked Lieutenant Crain about the distance from where he was parked in the parking lot to Highway 190. Lieutenant Crain estimated he was parked about twenty to twenty-five feet from the highway and about thirty to forty feet from the defendant's Jeep when he was driving in the westbound lane. Lieutenant Crain clarified on redirect examination that he followed the Jeep to verify the license plate light was inoperable before attempting to initiate a traffic stop.

In response to the State's questioning, Lieutenant Finn testified he was several blocks away when he received a request for assistance from Lieutenant Crain, and he joined the pursuit behind Lieutenant Crain in his unmarked police vehicle. Lieutenant Finn said he activated his lights after Lieutenant Crain activated his lights and siren. Lieutenant Finn testified he “eventually activate[d]” his siren during the pursuit. After Lieutenant Crain passed the Jeep, Lieutenant Finn observed the defendant swerve into the eastbound lane and onto the shoulder of the highway. Then, Lieutenant Finn testified:

A. ․ [A]nother sheriff's office vehicle joined in the pursuit, and there was --

Q. Who was that? Who's driving that?

A. That is Deputy Terry Poynter. He joins in, and there is an oncoming vehicle ․ approaching in the eastbound lane of travel heading eastbound.

Q. You guys were driving westbound?

A. Correct. We were going eastbound -- or westbound -- I'm sorry; we are going westbound.

․

Q. What does the defendant do at that time in his vehicle?

A. There's a point in time where the defendant's vehicle moved into the opposing lane of travel, and it appeared to me that there was going to be a head-on collision between that oncoming vehicle and the defendant's vehicle.

Q. Did the driver of that oncoming truck, did that driver have to take any action in order to avoid a head-on collision?

A. Yes. It swerved almost completely on to the shoulder of the highway.

According to Lieutenant Finn and Deputy Poynter, the defendant's speed was ninety-five miles per hour at one point. Lieutenant Finn testified the pursuit was continuing towards Mandeville, and there were houses and businesses in the area where they were driving. As can be heard in his bodycam footage, Lieutenant Finn voiced his observations of the defendant's actions while in pursuit. Throughout the recording, he detailed the defendant's rate of speed, the lane of travel in which the defendant was driving, the circumstances of the near wreck with the box truck, and the collision with Lieutenant Crain's vehicle. Lieutenant Finn disagreed with defense counsel that the bodycam footage showed the defendant's vehicle had an operable license plate light. Rather, Lieutenant Finn testified the light seen illuminating the license plate in the bodycam footage was a reflection from the police vehicle's headlights behind the defendant's vehicle.

Deputy Poynter testified he was “a little bit of a distance” away when he heard the dispatch, and when he caught up to the pursuit a few minutes later, he saw the box truck swerve onto the shoulder of the road to avoid a collision. Deputy Poynter testified both Lieutenant Crain and Lieutenant Finn had their lights and sirens engaged. Deputy Poynter's police vehicle, following far behind the defendant's vehicle and trailing the two unmarked police vehicles, was marked as belonging to the STPSO. It was also denoted as a canine unit and was equipped with emergency lights and a siren. Deputy Poynter's lights and sirens were engaged, as depicted in his bodycam footage, and he testified he slammed on his brakes to avoid crashing into Lieutenant Finn following the collision between the defendant and Lieutenant Crain. Deputy Poynter observed the defendant climb out of his Jeep window. He ordered the defendant to show his hands, and the defendant then “made facial contact with me and then just rolled off the side of the bridge.” On cross-examination, defense counsel questioned Deputy Poynter as follows:

Q. Now, by the time you caught up, from your testimony is, by the time you got there is kind of along the lines of the time when they stopped on the bridge, you and Lieutenant Finn kind of simultaneously got there around the same time?

A. Yes, sir.

Q. So, in all actuality, you didn't really make it to where they were until everyone was stopping or had stopped already?

A. So, basically, during a police pursuit, I try to stay as safe as possible because I'm in control of my vehicle. So I don't want to be up there right on the next cop car's bumper because I don't know of any kind of actions that's going to take place; so if I can safely be behind that unit at a distance, then that's where I'm going to be.

Deputy Poynter further testified his view of the defendant's vehicle was completely obscured by Lieutenant Finn's police vehicle during the pursuit.

Count Two

On count two, the defendant was convicted of aggravated flight from an officer, which is defined as:

C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop ․, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle ․

D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts:

(1) Leaves the roadway or forces another vehicle to leave the roadway.

(2) Collides with another vehicle or watercraft.

(3) Exceeds the posted speed limit by at least twenty-five miles per hour.

(4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99.

(5) Fails to obey a stop sign or a yield sign.

(6) Fails to obey a traffic control signal device.

La. R.S. 14:108.1 (emphasis added). The supreme court has described La. R.S. 14:108.1(D) as providing a specific and seemingly exclusive definition of the aggravating factors which elevate the crime from a misdemeanor to a felony. See State v. Turner, 2018-0780 (La. 5/8/19), 283 So.3d 997, 999 (per curiam).

On appeal, the defendant argues the evidence was insufficient, because: (1) he was not given a visual and audible signal by a marked police vehicle, and (2) Lieutenant Crain did not have reasonable grounds to believe he had committed an offense to justify a traffic stop. We find merit to the defendant's first argument and pretermit consideration of his second argument.

It is undisputed that Lieutenants Crain and Finn's vehicles were unmarked and not identifiable as police vehicles. It is also undisputed that, while Deputy Poynter's vehicle was marked as a police vehicle, and his emergency lights and siren were activated during the pursuit, it was following considerably behind the defendant's vehicle. Therefore, the pertinent question is whether Deputy Poynter was critically involved in the pursuit of the defendant such that the defendant knowingly fled Deputy Poynter's marked police vehicle. Based on the record before us, we conclude he did not.

Deputy Poynter testified he was not immediately involved in the pursuit as he was “a little bit of a distance” away when he heard the dispatch. He testified that he caught up to Lieutenant Crain, the defendant, and Lieutenant Finn within minutes, though the bodycam footage established the pursuit itself lasted only minutes. Deputy Poynter said he witnessed the defendant's near collision with the box truck and he himself had to slam on his brakes to avoid rear-ending Lieutenant Finn following the crash. However, he contradictorily testified he followed Lieutenant Finn at “a distance.” Finally, Deputy Poynter stated his view of the defendant's vehicle was completely obscured by Lieutenant Finn's police vehicle during the pursuit. Because the pursuit occurred at midnight and the defendant only had a direct view of unmarked police vehicles, we conclude the State failed to establish that the defendant knowingly fled the marked police vehicle of Deputy Poynter. Rather, the State only established the defendant knowingly fled the unmarked police vehicles of Lieutenant Crain and Lieutenant Finn.

A conviction under La. R.S. 14:108.1 requires an officer who is pursuing a suspect in his police vehicle to first give a visual and audible signal to stop, and “the signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle.” See State v. Harris, 52,370 (La. App. 2d Cir. 11/14/18), 261 So.3d 149, 154-55. In Harris, the second circuit reversed Harris’ conviction for aggravated flight from an officer, because the State failed to prove he fled a marked police vehicle. The second circuit discussed a 2006 opinion from the Louisiana Attorney General (“AG”) wherein the AG's office considered the role of an unmarked police vehicle in initiating a traffic stop. See La. Atty. Gen. Op. No. 06-0319, 2006 WL 3898234. The AG advisory opinion discussed La. R.S. 14:108.1(C), stating: “[I]t would be difficult, if not impossible, to obtain a conviction on someone who flees an unmarked police car under the current law.” The second circuit then concluded:

Given that La. R.S. 14:108.1 expressly requires the use of a marked police vehicle, we must reverse Harris’ conviction. The photos of the police car Agent Bassett was driving show the front, rear and both sides of the vehicle. There is no marking on the car itself which states it is a police vehicle. Under La. R.S. 14:108.1, a police vehicle being equipped with emergency lights and a siren is not sufficient in order to obtain a conviction; the vehicle must also be marked as a police vehicle. The vehicle Agent Bassett was driving had emergency lights, a siren, a spotlight, and MVS equipment. None of these items mark the vehicle as a police vehicle.

Harris, 261 So.3d at 155.

This court finds that it was not rational for the jury to conclude the defendant knowingly fled a marked police vehicle. Even evaluating the evidence in the light most favorable to the prosecution, giving deference to the jury's assessment of credibility and weighing of the evidence, and without substituting our own appreciation of the facts for that of the jury, this court finds a rational trier of fact could not find beyond a reasonable doubt the defendant committed aggravated flight from an officer. Therefore, the defendant's conviction on count two is reversed.⁴

Counts One and Three

On appeal, the defendant also argues this court should vacate his convictions for aggravated obstruction of a highway of commerce (count one) and aggravated criminal damage to property (count three) because the State failed to prove his actions endangered human life.

Aggravated obstruction of a highway of commerce is “the intentional or criminally negligent placing of anything or performance of any act on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, wherein it is foreseeable that human life might be endangered.” La. R.S. 14:96(A). Aggravated obstruction of a highway of commerce may be committed by general intent or criminal negligence. See La. R.S. 14:96(A); La. R.S. 14:10; and La. R.S. 14:11; State v. Williams, 2015-0699 (La. App. 1st Cir. 4/15/16), 2016 WL 1535154, *2 (unpublished), writ denied, 2016-1035 (La. 5/1/17), 219 So.3d 330. General criminal intent is “present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La. R.S. 14:10(2). Criminal negligence “exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” La. R.S. 14:12; see Williams, 2016 WL 1535154 at *2 (unpublished).

Thus, La. R.S. 14:96 prohibits the intentional or criminally negligent performance of any act on a highway which creates a foreseeable risk to human life. State v. Cox, 2008-0492 (La. 1/21/09), 5 So.3d 869, 872. “Foreseeable” means that which would ordinarily be anticipated by a human being of average, reasonable intelligence and perception. La. R.S. 14:2(A)(5). This court has concluded that driving “erratically” on an interstate highway, which, in turn, causes other drivers to take evasive maneuvers to avoid a collision, constitutes a violation of La. R.S. 14:96. State v. Lavergne, 2008-0044 (La. App. 1st Cir. 5/2/08), 991 So.2d 86, 90, writ denied, 2008-1459 (La. 2/20/09), 1 So.3d 494.

Aggravated criminal damage to property is “the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion.” La. R.S. 14:55(A). While the punishment for simple criminal damage to property is dependent upon the amount of damage to the property, no such requirement exists for aggravated criminal damage to property. State v. Kitchen, 2017-0362 (La. App. 1st Cir. 9/15/17), 231 So.3d 849, 857, writ denied, 2017-1983 (La. 11/14/18), 256 So.3d 281.

The crux of the defendant's argument on appeal is that human life was not endangered by his actions. Testimony at trial indicated the pursuit occurred on a highway at night and, though there were houses and businesses in the area, there was only one other motorist on the road at the time. The defendant acknowledges there was testimony establishing the driver of a box truck approaching from the east had to swerve onto the shoulder to avoid a head-on collision. However, he contends the driver of the box truck had to swerve to avoid colliding with Lieutenant Crain, not him, because Lieutenant Crain was driving in front of him. As there was no video footage corroborating the trial testimony, the defendant argues it was irrational for the jury to find his actions of fleeing from unmarked police vehicles endangered human life. The defendant further disputes the testimony claiming that he “rammed” Lieutenant Crain's vehicle, noting the Jeep's headlights appeared undamaged in the photographs and bodycam footage admitted at trial.

We find merit to the defendant's arguments. Lieutenant Crain testified the defendant was not speeding initially, and he drove his vehicle around to get in front of the defendant when he refused to pull over for the unmarked police vehicle. It was rational to conclude that when the box truck approached from the east, it was the lead vehicle that forced the truck to swerve to avoid a collision. Similarly, it was Lieutenant Crain who parked his vehicle on the bridge, which caused the wreck with the defendant. The pursuit occurred at night and there were no other motorists on the road. Therefore, we find the evidence presented at trial was insufficient to sustain the convictions for aggravated obstruction of a highway of commerce and aggravated criminal damage to property.

In reviewing the evidence, this court finds that it was not rational for the jury to conclude the actions of the defendant, rather than the actions of the police, endangered human life. Even evaluating the evidence in the light most favorable to the prosecution, giving deference to the jury's assessment of credibility and weighing of the evidence, and without substituting our own appreciation of the facts for that of the jury, this court finds a rational trier of fact could not find beyond a reasonable doubt the defendant committed aggravated obstruction of a highway of commerce and aggravated criminal damage to property. Therefore, the defendant's convictions on counts one and three are reversed.

ASSIGNMENTS OF ERROR TWO, THREE, AND FOUR

In his second assignment of error, the defendant alleges his enhanced sentence for aggravated flight from an officer is illegal as it exceeds the statutory maximum sentence. In his third assignment of error, the defendant argues he was deprived of the effective assistance of counsel at his original sentencing hearing and at his habitual offender adjudication hearing. In his fourth assignment of error, the defendant argues the record fails to support his adjudication as a third-felony habitual offender. However, we pretermit consideration of these assignments of error due to our finding that the evidence was insufficient to sustain the defendant's convictions.

Accordingly, we reverse the defendant's convictions, vacate his habitual offender adjudication, and vacate his sentences.

CONVICTIONS REVERSED; HABITUAL OFFENDER ADJUDICATION AND SENTENCES VACATED.

I agree in part with and concur in part with the majority opinion. I agree with the reversal of the defendant's conviction for aggravated flight from an officer (count two). However, I concur with the reversal of the defendant's convictions for aggravated obstruction of a highway of commerce (count one) and aggravated criminal damage to property (count three), and I write separately to address the Louisiana Supreme Court case of State v. Cox, 2008-0492 (La. 1/21/09), 5 So. 3d 869, which addresses a conviction of aggravated obstruction of a highway of commerce.

In Cox, a high speed chase involved the defendant driving around police road blocks and through residential neighborhoods at speeds approaching 100 miles per hour. Out of a concern for safety, the police backed off the chase.¹ Nevertheless, the defendant's vehicle crossed the center line and struck another vehicle traveling in the opposite direction. The driver of the other vehicle died as a result of the injuries sustained in the collision. Cox, 5 So. 3d at 869-870. The defendant was charged with one count of manslaughter, one count of aggravated obstruction of a highway of commerce, and one count of aggravated criminal damage to property. A jury convicted the defendant on all counts. Id. at 870.

The defendant appealed his convictions and sentences. The appellate court found the evidence did not support the defendant's conviction of aggravated obstruction of a highway of commerce and vacated the convictions and sentences. Id. at 871.

The supreme court granted writs, and the defendant argued that aggravated obstruction of a highway of commerce had never been interpreted to find someone in the wrong lane of travel obstructed that lane as contemplated by the statute. The defendant further noted that to interpret the statute in such a manner would make virtually all traffic offenses felonies.

The supreme court found the court of appeal erred in failing to consider the statute in its entirety, and determined the defendant surely performed an act which created a foreseeable risk to human life by driving into the opposite lane of travel at an estimated speed of 85 miles per hour and driving to intentionally target the victim's vehicle. See La. R.S. 14:96; Cox, 5 So. 3d at 872. The court emphasized the defendant's statement that he would not be “taken alive” and witness testimony that the defendant targeted the victim's vehicle. The supreme court found that in 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 of aggravated obstruction of a highway of commerce were proven beyond a reasonable doubt. Thus, it reversed the ruling of the court of appeal and reinstated the jury verdict of guilty of aggravated obstruction of a highway of commerce. Further, the court found that “this case [did] not present an extreme application of the statute.” Cox, 5 So. 3d at 873. The facts in the present case are clearly distinguishable from those in Cox, and 1 believe our holding today does not conflict with that precedent.

Here, the police did not back off the chase. In fact, the lead car in the chase was an unmarked police car, followed by the defendant and then a second unmarked police car. The state argued, and the trial court instructed, that the defendant was charged with aggravated obstruction of a highway of commerce on June 9, 2022, by the performance of any act, on any road or highway wherein it is foreseeable that human life might be endangered. To prove the offense, the state focused on the box truck being forced from its lane. However, the state further argued that by putting his own life in danger, the defendant committed the crime of aggravated obstruction of a highway of commerce.

Criminal statutes must be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. La. R.S. 14:3; State v. Skipper, 2004-2137 (La. 6/29/05), 906 So. 2d 399, 403. A criminal statute, like all other statutes, must be interpreted to preserve and effectuate the manifest intent of the legislature, avoiding an interpretation which would operate to defeat the object and purpose of the statute. State v. Shaw, 2006-2467 (La. 11/27/07), 969 So. 2d 1233, 1242.1 do not believe that Cox stands for the proposition that every traffic offense can support a conviction for aggravated obstruction of a highway of commerce. Otherwise, for example, every charge of reckless operation of a vehicle under La. R.S. 14:99, which carries up to ninety days in parish jail, could thus be charged as aggravated obstruction of a highway of commerce under La. R.S. 14:96, which carries up to fifteen years of imprisonment. See La. R.S. 14:99(B)(1) and 14:96(B). I believe that in drafting La. R.S. 14:96 (aggravated obstruction of a highway of commerce) separate and apart from La. R.S. 14:99 (reckless operation of a vehicle) and considering the vastly different penalty provisions, there is a clear indication of legislative intent to define aggravated obstruction of a highway of commerce as behavior that is something more than reckless operation of a vehicle. This conclusion, I believe, is well supported by the Cox decision.

I agree in part with and dissent in part from the majority opinion.

I agree with reversal of the defendant's conviction for aggravated flight from an officer (count two). I disagree, however, with reversal of the defendant's convictions for aggravated obstruction of a highway of commerce (count one) and aggravated criminal damage to property (count three). On appeal, the defendant's only challenge to both of these convictions is that the State failed to prove that his actions “endangered human life.” However, neither of the applicable statutes, La. R.S. 14:96(A) nor 14:55(A), requires that the State prove actual danger to human life; rather, under both statutes, the State need only prove that it was foreseeable that human life might be endangered. Viewing the evidence in a light most favorable to the prosecution, I think the jury rationally concluded that there was sufficient evidence to prove that the defendant's actions on a dark night made it foreseeable that his life, the lives of the pursuing officers, and the life of the box truck driver might have been endangered. These acts included: attempting to pass Lt. Crain's vehicle; swerving into the eastbound lane in the face of oncoming traffic; driving at an excessive speed; and, striking Lt. Crain's vehicle and the bridge railing and then continuing to rev the engine.

I respectfully suggest that the majority impermissibly substitutes its appreciation of the facts and assessment of witness credibility for that of the jury by concluding that it was Lt. Crain's actions, rather than the defendant's, that forced the box truck to swerve to avoid a collision and that it was Lt. Crain who caused the wreck with the defendant by parking his vehicle on the bridge.

For these reasons, I would affirm the convictions on counts one and three and then consider the defendant's assignments of error numbers three and four.

FOOTNOTES

1.   Although the trial court did not specify the sentences were to be served without the benefit of probation or suspension of sentence, any sentence imposed under the habitual offender statute shall be without the benefit of probation or suspension of sentence. See La. R.S. 15:529.1(G). Pursuant to La. R.S. 15:301.1(A), the defendant's habitual offender sentence is deemed to contain the benefits restriction by operation of law. See State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, 799; State v. Passow, 2013-0341 (La. App. 1st Cir. 11/1/13), 136 So.3d 12, 15.

2.   Finn was a sergeant at the time of the offenses but a lieutenant at the time of trial.

3.   Louisiana Revised Statutes 32:304(C) provides, in pertinent part: “Either a tail lamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of fifty feet to the rear.”

4.   The evidence is similarly insufficient to sustain a conviction for the responsive verdict of flight from an officer. See La. Code Crim. P. art. 814(A)(53). Louisiana Revised Statutes 14:108.1(A) defines flight from an officer, in pertinent part, as follows:No driver of a motor vehicle ․ shall intentionally refuse to bring a vehicle ․ to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle[.](Emphasis added).

1.   Louisiana Revised Statutes 32:24 provides limited statutory immunity for emergency vehicles which exceed the maximum speed limit so long as they do not endanger life or property.

WOLFE, J.

SMM, Judge concurs and assigns reasons. GREEN, J., agrees in part and dissents in part and assigns reasons.