State v. Armentor

• Decision Date: 31 July 2020
• Docket Number: 2019 KA 1267
• Citation: 309 So.3d 762
• Parties: STATE of Louisiana v. Ricky ARMENTOR
• Court: Court of Appeal of Louisiana — District of US

309 So.3d 762

STATE of Louisiana

v.Ricky ARMENTOR

2019 KA 1267

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JULY 31, 2020

Hillar C. Moore, III, District Attorney, Attorneys for Appellee, State of Louisiana

Dale R. Lee, Assistant District Attorney, Baton Rouge, Louisiana, Cynthia Meyer, Louisiana Appellate Project, New Orleans, Louisiana, Attorney for Appellant Defendant—Ricky Armentor

Before: McClendon, Welch, and Holdridge, JJ.

WELCH, J.

The State of Louisiana charged the defendant, Ricky Armentor, by bill of information with two counts of simple burglary, a violation of La. R.S. 14:62. The defendant pled not guilty. Before trial, the State dismissed one count. After a trial by a six-member jury, the defendant was found guilty as charged. The trial court imposed a term of twelve years imprisonment at hard labor, to be served without the benefit of probation or suspension of sentence. The defendant now appeals. For the following reasons, we affirm the conviction, vacate the defendant's sentence, and remand this matter for resentencing.

STATEMENT OF FACTS

On March 25, 2018, in Baton Rouge, Louisiana, Shawndre Griffin walked out of her house to get something out of her car and was surprised to find a man seated in it with his face on the steering wheel. She initially believed the man may have been dead. She alerted her husband, Jerry Lavergne, who came outside to confront the man. When Lavergne approached to open the car, the man in the car locked the car, at which time Lavergne instructed Griffin to get her key fob for the vehicle. After getting her keys, Griffin stated she attempted several times to unlock the car, but the man kept re-locking it. Eventually, however, Lavergne was able to open the car door after it was unlocked before the man could relock it. The man, later identified in court as the defendant, lunged at Lavergne. In response, Lavergne punched the defendant twice in the right side of his head, causing the defendant to fall to the ground, where he briefly lost consciousness. The defendant also sustained lacerations to his face and head. A recording of Griffin's 911 call was entered into evidence and played for the jury.

Griffin informed the police who investigated the incident that though the defendant had rummaged through her glove box, she did not find anything missing from there. She did notice that the defendant had likely taken all of the loose change from the two cup holders, but she did not know exactly how much it was. Also in the car was a red bag that Griffin described as a "burglary kit." Griffin described the odor of alcohol in her vehicle when she got inside after the defendant had been arrested and noted that he appeared to be intoxicated "in some way[.]" She conceded she told police the defendant told her he thought it was his car.

The police first encountered the defendant lying on the ground. The defendant was found to have $16.41 in change in his pocket. At the scene, Griffin told police she did not think any of that change was hers. The police officer that removed the red bag from Griffin's vehicle stated that the bag contained a set of wire cutters, a pair of pliers, more than one flashlight, and a black stocking cap or long beanie with eye holes cut in it, among other things, which collectively the officer believed could be considered burglary tools. Responding officers also noticed the defendant appeared to be intoxicated or under the influence of narcotics. A bottle of Clonazepam was found on the defendant. The defendant told police he believed he was in Zachary, Louisiana.

ASSIGNMENT OF ERROR #1: INSUFFICIENT EVIDENCE

The defendant contends the State failed to establish that he had the requisite specific intent to commit burglary. In support, he cites the fact he told police he thought he was in his own vehicle and was visibly intoxicated. The coins found in his possession, he explains, were not established beyond a reasonable doubt to have come from Griffin's car. The State contends the evidence was sufficient where it established through two witnesses that the defendant was unlawfully inside Griffin's vehicle and at least seven dollars in change was missing.

A conviction based on insufficient evidence cannot stand, as it violates Due Process. See U.S. Const. amend. XIV and La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). The Jackson standard of review, incorporated in La. C.Cr.P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the trier of fact must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Dyson, 2016-1571 (La. App. 1st Cir. 6/2/17), 222 So. 3d 220, 228, writ denied, 2017-1399 (La. 6/15/18), 257 So. 3d 685. When direct evidence is viewed in a light most favorable to the prosecution, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Thaddius Brothers, 2017-0870 (La. App. 1st Cir. 11/1/17), 233 So. 3d 110, 113, writ denied. 2017-2160 (La. 10/8/18), 253 So.3d 803.

An appellate court is constitutionally precluded from acting as a "thirteenth juror in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact. State v. Cockerham, 2017-0535 (La. App. 1st Cir. 9/21/17), 231 So. 3d 698, 705, writ denied, 2017-1802 (La. 6/15/18), 245 So. 3d 1035. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness, including an expert. The fact that the record contains evidence that conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Moultrie, 2014-1535 (La. App. 1st Cir. 12/14/17), 234 So. 3d 142, 146, writ denied, 2018-0134 (La. 12/3/18), 257 So. 3d 1252. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Ruffen, 2018-1280 (La. App. 1st Cir. 2/28/19), 2019 WL 968412, at *4 (unpublished), writ denied. 2019-00564 (La. 9/6/19), 278 So. 3d 971.

Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in La. R.S. 14:60. La. R.S. 14:62(A). To be guilty of simple burglary, a defendant must have the specific intent to commit a felony or theft therein at the time of his unauthorized entry. State v. Godbolt, 2006-0609 (La. App. 1st Cir. 11/3/06), 950 So. 2d 727, 730. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So. 2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from defendant's actions and the circumstances of the transaction. State v. Broaden, 99-2124 (La. 2/21/01), 780 So. 2d 349, 362, cert. denied, 534 U.S. 884, 122 S. Ct. 192, 151 L. Ed. 2d 135 (2001). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Nixon, 2017-1582 (La. App. 1st Cir. 4/13/18), 250 So. 3d 273, 290, writ denied. 2018-0770 (La. 11/14/18), 256 So.3d 290.

Here, the defendant does not dispute that he was found in Griffin's vehicle and that Griffin had not given him permission to be there. The cases defendant relies on are distinguishable in one significant detail: the defendant in the instant case was found in possession of stolen property.¹ It was Griffin's undisputed and consistent trial testimony that she ordinarily kept a significant amount of change in the cup holders of her car and that most of it was missing following the defendant's entry. She further testified that the glove box of her car had apparently been searched by the defendant. When searched by police, the defendant was found with, among other miscellaneous items, $16.41 in loose change and items described as burglary tools. Forced entry into a vehicle or possession of burglary tools are not elements of the offense. La. R.S. 14:62.

The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the "fact finder's discretion ... only to the extent necessary to guarantee the fundamental protection of due process of law." State v. Mussall, 523 So. 2d 1305, 1310 (La. 1988). Here, based on witness testimony, it was reasonable for the jury to conclude that even though she could not identify specific coins or even verify a specific amount missing, defendant was in possession of money intentionally taken from Griffin's vehicle. Additionally, defendant s actions of having rifled through the vehicle glove box, thwarting Griffin's attempts to unlock the vehicle with her key fob, and...