State v. Brandenburg

• Court: Court of Appeal of Louisiana
• Writing for the Court: Painter
• Citation: State v. Brandenburg, 949 So.2d 625 (La. App. 2007)
• Decision Date: 07 February 2007
• Docket Number: No. 2006-1158.,2006-1158.
• Parties: STATE of Louisiana v. Willard BRANDENBURG.

949 So.2d 625

STATE of Louisiana v. Willard BRANDENBURG.

No. 2006-1158.

Court of Appeal of Louisiana, Third Circuit.

February 7, 2007.

Michael C. Cassidy, District Attorney, Bennett R. LaPoint, Assistant District Attorney, Jennings, LA, for State of Louisiana.

Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant-Appellant, Willard Brandenburg.

Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

PAINTER, Judge.

Defendant, Willard Brandenburg, appeals his conviction and sentence on the charge of aggravated burglary. For the reasons that follow, we affirm the conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of July 4, 2004, Defendant went to the home of Jessie and Bonnie Davis in Elton, Louisiana. Toinette Fontenot, Defendant's long-time girlfriend, and their daughter lived at the Davis residence. Defendant had been to the house twice that day to visit his daughter because it was her birthday. A confrontation occurred between Ms. Fontenot and Defendant, resulting in the police being summoned. Defendant took his daughter for a visit, but later she called her mother and asked to be brought home. Later in the evening, during a heated phone discussion with Defendant, Ms. Fontenot told him that his daughter had gone to watch fireworks with friends and was not at the Davis residence. Defendant threatened to come over and kill everyone unless he could have his daughter. Mrs. Davis called the police and locked all the doors. Defendant came to the house, kicked in the front door, and found Ms. Fontenot hiding in the master bathroom with a shotgun. The couple fought over the gun, which discharged through a wall and into a closet where the daughter and two other children were hiding. Defendant took the shotgun away from Ms. Fontenot and beat her with the shotgun. Two more shots were discharged. Still in possession of the shotgun, Defendant chased Ms. Fontenot into the backyard. Outside the house, Mr. Davis confronted Defendant and shot him in the chest.

Defendant was charged by a Grand Jury Indictment with one count of attempted second degree murder, violations of La.R.S. 14:27 and 14:30.1; one count of aggravated battery, a violation of La.R.S. 14:34; one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1; and one count of aggravated burglary, a violation of La.R.S. 14:60. However, the matter went to trial only on the aggravated burglary charge. Following a trial by jury, Defendant was convicted of aggravated burglary.

The court ordered a pre-sentence investigation and sentenced Defendant to serve thirty years at hard labor. The trial court subsequently vacated the sentence in response to Defendant's pro se motion for acquittal. Following a hearing, the trial court denied the motion and re-sentenced Defendant to serve thirty years at hard labor. Defendant's motion to reconsider the sentence was denied without written reasons.

Defendant now appeals his conviction and sentence. In brief, he asserts the following assignments of error:

1. The evidence was insufficient to support the conviction for aggravated burglary.

2. The trial court erred in allowing the 911 tapes into evidence over [Defendant's] hearsay objection.

3. The trial court erred in sustaining a hearsay objection as to the testimony of Rhonda Comeaux about statements made to her by Ms. Fontenot.

4. The trial court abused its discretion in refusing to consider [Defendant's] request to discharge his retained counsel and, [sic] represent himself at trial.

5. The trial court erred in denying [Defendant's] motions for mistrial based on [La.Code Crim.P.] art. 775.

6. [Defendant's] 30-year sentence was constitutionally excessive.

Defendant also filed a pro-se brief alleging additional assignments of error, as follows:

1. The trial court denied [Defendant] of the right to a fair trial by allowing the [j]ury to take a copy of unknown material into the jury room to read while deliberating on a verdict (La. Constitution Article 1 § 16, U.S.C. Constitution Amendments 5th, 6th, and 14^th). [sic] and for giving improper instructions to the jury relative to charged offense not included within the responsive verdict.

2. The trial court denied [Defendant] the right of a fair trial by denying him a continuance on the morning of trial when the District Attorney amended the Grand Jury Indictment. (La. Constitution Article 1 § 16, U.S.C. Constitution Amendments 5th, 6th, and 14th).

3. [Defendant's] conviction and sentence is null and void based on the invalid Grand Jury Indictment 969-04 which is error patient [sic] on the face to the record. (La.C.Cr.P. Art. 920(2)[)].

4. The State's attempt to have the charges dismissed without prejudice for the later purposes of reinstituting offenses where institution for prosecution by trial had already expired deprives [Defendant] of the right to due process of law as guaranteed by the United States Constitution 14th Amendment.

We affirm Defendant's conviction and sentence for the following reasons.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1:

For his first assignment of error, Defendant asserts that the evidence presented was insufficient to support his conviction for aggravated burglary. In support of this claim, Defendant argues that he did not enter the house with the intent to commit any felony. He further alleges "[t]he fact that Mr. Brandenburg took a shotgun from Ms. Fontenot, after entering the home, cannot be used to bootstrap the necessary specific intent to commit felony battery."

In determining sufficiency of the evidence on appeal, this court has previously stated:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902 (citing State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). "The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony; thus, a reviewing court may impinge on the `fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law.'" State v. Johnson, 03-1228, pp. 4-5 (La.4/14/04), 870 So.2d 995, 998 (citing State v. Sylvia, 01-1406, p. 2 (La.4/9/03), 845 So.2d 358, 361).

Defendant was charged as follows:

[Defendant] [d]id unlawfully commit aggravated burglary of the dwelling of Jesse Davis by entering the dwelling without authority, with the intent to commit a felony therein, and further, did arm himself with a dangerous weapon to with [sic]: a shotgun, after entering or committed a battery upon a person while in such place, or in entering or leaving such place (a felony) in violation of LSA R.S. 14:60.

Aggravated burglary is defined as:

[T]he unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft herein, if the offender,

(1) Is armed with a dangerous weapon; or

(2) After entering arms himself with a dangerous weapon; or (3) Commits a battery upon any person while in such place, or in entering or leaving such place.

La.R.S. 14:60.

A battery is defined as "the intentional use of force or violence upon the person of another." La.R.S. 14:33.

Ms. Fontenot testified she had been dating Defendant for several years and that they have a thirteen-year-old daughter together. She said that she and Defendant had a house together, but that house was damaged by a hurricane. After the home was damaged, Ms. Fontenot and her daughter moved into the Davis residence while Defendant continued to live in the home and work on its repairs.

Ms. Fontenot stated that her daughter's birthday was July 4th and that Defendant took them out for dinner at a casino on the night before her birthday. She stated that while she was in another part of the casino, Defendant told her daughter he was not feeling well and left. She said she had to call Mrs. Davis to pick her and her daughter up from the casino.

Defendant went to the Davis residence the next morning. Ms. Fontenot said that they had an argument that morning because she was still in bed when he arrived. He picked up the birthday cake she had bought for their daughter and threw it to the ground. Ms. Fontenot said that during the argument, they yelled at each other, and he pushed her down.

Later that morning, at approximately 11:30 a.m., Defendant returned and wanted to take his daughter back to his house for a visit. They argued again, but Ms. Fontenot testified that their daughter wanted to go with her father, so she allowed it. However, Ms. Fontenot stated that her daughter called her a few hours later and asked to be picked up because Defendant went to bed.

Later...