29,488 La.App. 2 Cir. 6/18/97, State v. Robinson

• Decision Date: 18 June 1997
• Citation: 697 So.2d 607
• Parties: 29,488 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 607

697 So.2d 607

29,488 La.App. 2 Cir. 6/18/97

STATE of Louisiana, Appellee, v. Darrell A. ROBINSON, Appellant.

No. 29488-KA.

Court of Appeal of Louisiana Second Circuit.

June 18, 1997.

W. Lee Perkins, Monroe, for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, H. Stephens Winters, Assistant District Attorney, for Appellee.

Before HIGHTOWER, STEWART and GASKINS, JJ.

STEWART, Judge.

The defendant, Darrell A. Robinson ("Robinson"), was charged with four counts of simple burglary a violation of La. R.S. 14:62. A jury found the defendant guilty as charged. The trial court imposed a sentence at hard labor with credit for time served. Robinson appeals urging eight assignments of error. We affirm.

FACTS

On October 2, 1992, Ouachita Parish sheriff's deputies responded to an anonymous caller who reported a vehicle driving slowly without lights through the parking lot of the Walker apartments. Communicating through their radio systems, the deputies decided to enter opposite ends of the complex in an attempt to locate the car. They located the vehicle leaving the apartment complex, stopped the car, and the deputies learned that the driver, Robinson, had an outstanding warrant for his arrest. Three other individuals were in the vehicle with the defendant.

As the deputies approached the vehicle, they observed several stereo items and wires in the back of the car. These objects were consistent with items taken in a recent series of vehicle burglaries. During questioning at the sheriff's office, Robinson admitted his involvement in several car burglaries which occurred in the Town and Country area. Robinson was charged by bill of information with four counts of simple burglary, three vehicle burglaries and one residential burglary. At a jury trial, the defendant did not testify or present witnesses.

DISCUSSION

Assignment of Error # 1: Insufficient evidence was presented at trial to support the verdict.

Assignment of Error # 4: The verdict of the jury on count 3 of the bill of information is contrary to the evidence.

Robinson argues that the state failed to prove the essential elements of each offense. With respect to count three of the bill of information, he alleges that the state provided an incorrect date on which the crime allegedly occurred. Conversely, the state contends it presented sufficient evidence to convict the defendant of the charged offenses. In regards to count three, the date of the crime was presented in "on or about" language which is legally permissible, and the defendant received adequate notice of the charged offense.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App. 2d Cir.1988).

This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 5(C); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (1987).

Robinson was found guilty of simple burglary, in violation of La. R.S. 14:62, which provides: "[s]imple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Section 60."

To convict, the state must prove the elements of the crime beyond a reasonable doubt. The elements of the crime of simple burglary consist of: 1) entry into a structure; 2) the entry being unauthorized; and 3) the specific intent to commit a felony or theft therein. State v. Mitchell, 96-207 (La.App. 3d Cir. 10/9/96), 684 So.2d 6.

Though intent is a question of fact, it need not be proved as a fact. It may be inferred from the circumstances. State v. Kahey, 436 So.2d 475 (La.1983). It is not necessary that an actual theft occur. State v. Hall, 26,505 (La.App.2d Cir. 12/7/94), 647 So.2d 453; State v. Hooker, 623 So.2d 178 (La.App. 2d Cir.1993).

Testimony

As evidence in count one of the bill of information, the state presented the testimony of Trooper Billy Zeigler ("Zeigler"), who was at the time of this investigation a sheriff's deputy. Zeigler testified that he investigated a residential burglary at 10 Town East in Monroe, La., on or about July 18 or 19, 1992. During the investigation, he spoke with Jacquelyn Flood ("Ms.Flood"), who was house sitting for the owner, Rotina West ("Ms.West"). Ms. Flood indicated that various items were missing. The items reported stolen included a microwave, two VCR's, a suitcase that contained clothes, and two pairs of jeans. During his investigation, Zeigler located two fingerprints.

Ms. West testified that she had given her niece, Ms. Flood, permission to live in the house during the summer. She stated items were taken from her home without her permission. She added a pair of tennis shoes to the previous list of missing items.

Ms. Flood testified that when she returned from an overnight trip she found the door of the house pried open and numerous items missing. She stated that she had not given anyone permission to remove any items.

Regarding count two, Corporal Danny Bridges ("Corporal Bridges") testified that he investigated a vehicle burglary involving Ms. Johnny Thompson Hudson. At the scene, Corporal Bridges discovered that the glove compartment had been opened, and papers were laying around the floorboard of the car. Also, the ignition was damaged. The trunk was open and items were strewn about the trunk. Corporal Bridges noted that there was a missing hubcap, and located a latent print from the point of entry on the vehicle.

Johnnie Mae Thompson, the victim, testified that she had not given anyone permission to enter or take anything from her vehicle on or about September 15, 1992. She testified that she had driven her car the day before. However, on the morning of the 15th, as she prepared to leave for work, Ms. Thompson discovered that her passenger side window had been broken, the steering wheel had been tampered with, and the glove compartment, as well as the trunk were open. She also noted that the cap of her wheel rim was missing.

Concerning count three, both the deputy who took the initial report and the victim testified regarding the crime. On September 21, 1992, Deputy Bill Berry ("Deputy Berry") testified that he was working an area where several vehicle burglaries, which occurred the night before, had been reported. As the deputy patrolled the area, he found a 1989 Isuzu pickup truck which had been burglarized. Since the victim was out of town, the deputy spoke to the victim's father. When the victim, Jeff Thornton, returned, he provided a list of stolen items The list included a Kenwood AM/FM/CD player, Kenwood speakers, a linear (sic) amplifier, and two black tuxedos. During the investigation of the crime scene, a fingerprint was lifted from the suspected entry point on the vehicle.

Thornton testified he learned his vehicle had been burglarized upon his return. He had not given anyone permission to take the items from his truck and confirmed the list of items stolen.

With respect to count four of the bill of information, the state presented the testimony of Detective Mark Mayshaw and Jeremy Shannon Boyce (Mr. Boyce).

Mr. Boyce testified that his truck had been burglarized and the radio system and other items were removed. The items taken included a radio, a tape player, a set of speakers, an amplifier, and a cassette box full of tapes. Again, Mr. Boyce had not given anyone permission to enter his truck or to remove these items.

Detective Mayshaw testified that he investigated the vehicle burglary crime scene. When the truck was found, the window was rolled down, and the stereo equipment had been removed carefully. One fingerprint was recovered from the glass at the point of entry.

The trial court qualified Sergeant Brian Newcomer ("Newcomer") as an expert in fingerprint identification. Newcomer indicated that he had taken finger and palm prints of the defendant. He testified that he matched the prints he took of the defendant's fingers and palms (S5 and S5A) with the prints recovered from the four charged offenses. The prints recovered from the scenes of the four charged offenses (S1-S4) matched prints of the defendant.

Sergeant Jay Via testified that he interviewed Robinson regarding the charged offenses. Robinson told the sergeant that it was his idea to...