State v. Abrams

• Decision Date: 21 June 1988
• Docket Number: No. KA,KA
• Citation: 527 So.2d 1057
• Parties: STATE of Louisiana, v. Rosha ABRAMS. 87 1451. 527 So.2d 1057
• Court: Court of Appeal of Louisiana — District of US

Page 1057

527 So.2d 1057

STATE of Louisiana, v. Rosha ABRAMS.

No. KA 87 1451.

527 So.2d 1057

Court of Appeal of Louisiana, First Circuit.

June 21, 1988.

Lewis V. Murray, III, Franklinton, for plaintiff-appellee State of la.

James H. Looney, Asst. Public Defender, Office of the Indigent Defender, Covington, for defendant Rosha Abrams.

Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

COVINGTON, Chief Judge.

Defendant, Rosha Abrams, and two co-defendants were charged by bill of information with simple burglary, a violation of La.R.S. 14:62. The bill of information was subsequently amended to charge defendant's co-defendants with attempted simple burglary. Defendant remained charged with simple burglary. He was tried by a jury and convicted as charged. Subsequently, the state filed a habitual offender bill against defendant. The trial court adjudicated defendant a fourth-felony offender and sentenced him to life imprisonment at hard labor without probation, parole or suspension of sentence.

Defendant appeals his conviction and sentence, urging four assignments of error:

1. The trial court erroneously adjudicated defendant a fourth-felony offender.

2. The sentence imposed is excessive and disproportionate.

3. The evidence is insufficient to convict defendant of simple burglary.

4. A patent error check is requested.

We note at the outset that this Court routinely reviews every criminal record for patent errors. See La.C.Cr.P. art. 920. Our inspection of the instant record does not reveal the existence of such.

FACTS

On February 26, 1985, at about 2:19 a.m., police officers responded to the activation of a silent burglar alarm at the Otasco store in Bogalusa. The prompt response by the police to the alarm precluded the successful consummation of the offense intended. Officer Mike Godwin was on patrol, a short distance from the store. As he proceeded toward the store, he turned off the headlights of his police unit. After arriving at the store, he walked around it to check the doors and windows. As he approached an alleyway on the southside of the store, Officer Godwin heard footsteps coming from the alleyway. Defendant and co-defendant Theopalis Ball emerged from the alleyway. A third man, co-defendant Gregory Victor, fled and tried to conceal himself behind a large air conditioning unit adjacent to the store.

Officer Harry Hoppen was situated at the opposite end of the alleyway from Officer Godwin and heard Officer Godwin shout, "[H]e's running towards you.... there's another one." Lieutenant Hollis Galloway apprehended and arrested Victor.

The owner of the store, George Johnson, inspected the interior and exterior of the building. He stated that a large, 200 BTU, air conditioning unit (which had been cemented into the store wall approximately four to five feet above-ground) had been forcefully pried out of the store wall with a steel pry bar. The unit was sitting on the ground adjacent to the building and had a footprint on its topside. Johnson stated that it appeared that the unit had been used as a step-up to gain entry into the store. A display case (used to display television sets) within the store was positioned approximately six inches from the hole in the store wall. Johnson testified that a footprint on the back of the display case, abutting the wall where the air conditioning unit had been located, indicated that someone had attempted to kick over the case.

Johnson testified that, if the display case were kicked over, there would be sufficient room for someone to crawl through the hole in the wall and into the store. The air conditioning unit itself was alarm-wired; and, additionally, the store was equipped with motion detectors. As far as Johnson could determine nothing had been taken from the store.

Defendant testified that he had nothing to do with the burglary of the Otasco store. He stated that he was on his way to Graham's to get a snack for himself and his brother when he saw an acquaintance of his, Ball, and another man. Defendant claims that he heard a noise in the alleyway and was investigating the source of the sound when the police arrived. Defendant claims that he never went to the area of the alley where the air conditioning unit was located. He testified that he initially saw the police after a man said that the "cops" were there. As he turned to walk out of the alleyway, he was arrested.

On rebuttal, Officer Hoppen testified that, after apprehending defendant, he inquired as to the presence of any other people within the store because he was considering whether or not anyone might be armed and a threat to the safety of his fellow officers. Defendant said that there was no one in the store. He denied involvement in the burglary and implicated both co-defendants. Officer Hoppen confronted defendant with the fact that Ball had just implicated him and Victor. Hoppen testified that defendant then answered, "Yeah, I guess I'm caught up in it" or "Yeah, I guess I'm caught."

ASSIGNMENT OF ERROR NO. THREE

By this assignment of error, defendant challenges the sufficiency of the evidence to sustain the conviction of simple burglary. He contends the evidence does not prove an entry nor the specific intent to commit a felony or theft. Defendant alleges that the record is devoid of proof of his involvement in the burglary.

We note that, in order to challenge a conviction on the basis of insufficiency of the evidence, defendant should have proceeded by way of a motion for a post-verdict judgment of acquittal. See La.C.Cr.P. art. 821; State v. Britt, 510 So.2d 670 (La.App. 1st Cir.1987). Nevertheless, we will consider a claim of insufficiency of the evidence which has been briefed pursuant to a formal assignment of error.

The standard of review for the sufficiency of the evidence is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. See La.C.Cr.P. art. 821; State v. Captville, 448 So.2d 676 (La.1984). This standard is an objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.R.S. 15:438 provides that the finder of fact must be satisfied that the overall evidence "excludes every reasonable hypothesis of innocence." See State v. Wright, 506 So.2d 933, 936 (La.App. 1st Cir.1987).

The crime of simple burglary is the unauthorized entering of a structure with the intent to commit a felony or any theft therein. La.R.S. 14:62. The phrase "unauthorized entry" or "unauthorized entering" is used in the statutes proscribing the following crimes: simple burglary, La.R.S. 14:62; simple burglary of a pharmacy, La.R.S. 14:62.1; simple burglary of an inhabited dwelling, La.R.S. 14:62.2; unauthorized entry of an inhabited dwelling, La.R.S. 14:62.3; and unauthorized entry of a place of business, La.R.S. 14:62.4. The legislature obviously intended the same meaning for each by the use of the same phrase.

Other jurisdictions have defined "entry" whenever "any part of the defendant's person passes the line of the threshold." State v. Falls, 508 So.2d 1021, 1025 (La.App. 5th Cir.1987); citing 3 Wharton's Criminal Law, Section 332 (C.E. Torcia 14th Ed. 1980 & Supp.1986) at 202. It is sufficient if any part of the actor's person intrudes, even momentarily, into the structure. W.R. Lafave & A.W. Scott, Handbook on Criminal Law 710-11 (1972) at 710. In State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981), the Louisiana Supreme Court concluded that a "sprung latch on the inside door established an unauthorized entry of [a] lounge." Id. at 1220.

A footprint was found on the back of the display case located within the store. The air conditioning unit had been unplugged inside the building. These facts could raise the inferences to a reasonable trier of fact that at least an arm and a leg were placed through the hole in the store wall and into the store. We conclude that a reasonable trier of fact could have found that there was unauthorized entry into the store. State ex rel. Womack v. Blackburn, supra at 1219. The air conditioning unit was pried out of the store wall. Defendant walked out of the alleyway with Ball. He told Officer Hoppen that no other person was in the store and indicated he was caught red-handed. A reasonable inference could be drawn from the evidence that defendant, or one of his co-defendants, entered the store by putting an arm and a leg through the hole in the store wall. To be guilty as a principal to a burglary, the accused does not have to personally enter the burglarized building. State v. Kimble, 375 So.2d 924 (La.1979); State v. Gordon, 464 So.2d 418 (La.App. 1st Cir.1985), writ denied, 468 So.2d 571 (La.1985).

Specific intent to commit a...