State v. Dossman

• Decision Date: 27 September 2006
• Docket Number: No. 06-450.,No. 06-449.,06-449.,06-450.
• Citation: 940 So.2d 876
• Parties: STATE of Louisiana v. Warren Todd DOSSMAN.
• Court: Court of Appeal of Louisiana — District of US

940 So.2d 876

STATE of Louisiana v. Warren Todd DOSSMAN.

No. 06-449.

No. 06-450.

Court of Appeal of Louisiana, Third Circuit.

September 27, 2006.

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Charles A. Riddle, III, District Attorney, Norris Joseph Greenhouse, Assistant DA, Marksville, LA, for Plaintiff/Appellee, State of Louisiana.

William Jarred Franklin, LA Appellate Project, Bossier City, LA, for Defendant/Appellant, Warren Todd Dossman.

Warren Todd Dossman, pro se.

Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The Defendant, Warren Todd Dossman, was convicted of unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3. After the State filed a motion requesting that Defendant be sentenced as a habitual offender, pursuant to La.R.S. 15:529.1(A)(1)(a), he was sentenced to serve six years at hard labor, without the benefit of parole, probation, or suspension of sentence. He now appeals his conviction and sentence asserting that the evidence was insufficient to support his conviction and that his sentence is unconstitutionally excessive. Additionally, Defendant claims that the trial court erred when it failed to instruct the jury that criminal trespass was a lesser responsive verdict to the charged crime of unauthorized entry of an inhabited dwelling. For the following reasons, we affirm Defendant's conviction and sentence, as amended with instructions.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent. First, the record does not indicate Defendant was advised of his right to remain silent or his right to have the State prove its case against him before he was adjudicated a habitual offender. We have found such error to be harmless when the defendant is adjudicated a habitual offender after a full hearing, and the defendant does not testify or acknowledge his status as a habitual offender. See State v. Alexander, 05-276, 05-277 (La.App. 3 Cir. 11/2/05), 916 So.2d 303.

In the present case, Defendant denied the habitual offender allegations, a hearing was held, and he was adjudicated a second habitual offender. Although the State presented evidence to prove Defendant's prior conviction of simple criminal damage to property, we note that he stipulated to his second or the instant conviction. This stipulation did not constitute an admission of Defendant's status as a habitual offender; thus, the stipulation does not affect our present harmless error analysis because the only disputable issue at a habitual offender hearing is whether or not the defendant committed the prior conviction(s) alleged in the charging instrument:

In habitual offender cases, the charges to be defended against are the prior convictions alleged. A defendant is unable to defend against the recent underlying offense(s) because the trial court has the right to take judicial notice of any prior proceeding in cases over which it presided. State v. Valentine, 397 So.2d 1299 (La.1981).

State v. Freeman, 00-238, p. 12 (La.App. 3 Cir. 10/11/00), 770 So.2d 482, 490, writ denied, 00-3101 (La.10/5/01), 798 So.2d 963.

The trial court in the present case presided over the trial of Defendant's most recent conviction, as well as the habitual offender proceeding. Thus, the trial court had the right to take judicial notice of Defendant's second or most recent conviction. Considering this fact, Defendant's stipulation to his second or most recent conviction was a stipulation to a non-disputable fact and did not constitute an admission to his habitual offender status. Accordingly, we find that the trial court's failure to advise Defendant of his rights in the instant case was harmless error because a hearing was held at which he was adjudicated a second habitual offender without acknowledging his habitual offender status.

Second, the trial court improperly denied Defendant parole eligibility. The trial court sentenced Defendant to six years at hard labor without benefit of probation, parole, or suspension of sentence. Although Section G of the habitual offender statute requires all enhanced sentences to be imposed without benefit of probation or suspension of sentence, it does not authorize the trial court to impose enhanced sentences without benefit of parole. La.R.S. 15:529.1(G). "[T]he restrictions on parole eligibility imposed on multiple offender sentences under La.R.S. 15:529.1 `are those called for in the reference statute.'" State v. Tate, 99-1483, pp. 1-2 (La.11/24/99), 747 So.2d 519, 520 (citation omitted). The penalty provision for unauthorized entry of an inhabited dwelling, the reference statute in the present case, does not authorize the trial court to impose any portion of the sentence without benefit of parole. La.R.S. 14:62.3. Thus, the trial court improperly denied parole eligibility. Accordingly, we amend Defendant's sentence to delete the denial of parole eligibility. See State v. Buckley, 02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193 and State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694. Further, we instruct the trial court to make an entry in the minutes reflecting this change. See Tate, 747 So.2d 519.

SUFFICIENCY OF EVIDENCE

Defendant asserts on appeal that the evidence presented was insufficient to support his conviction. In support of this assignment of error, Defendant argues that the State failed to prove that the structure he allegedly entered was an inhabited dwelling or place of abode. He also argues that he did not actually enter the structure.

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 (quoting 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 (quoting State v. Sylvia, 01-1406, p. 2-3 (La.4/9/03), 845 So.2d 358, 361).

Defendant was convicted of unauthorized entry of an inhabited dwelling, as prohibited by La.R.S. 14:62.3(A), which states the following in pertinent part: "Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person."

Defendant argues that the State did not prove that the structure involved was actually an inhabited dwelling or place of abode. He states that to be an "inhabited dwelling" within the statute, a person must actually be living in the structure, deem it to be a place of abode, and treat it as such. In support of these statements, he cites State v. Smith, 28,280 (La.App. 2 Cir. 6/26/96) 677 So.2d 589, writ denied, 97-850 (La.11/14/97), 703 So.2d 1287, and State v. Black, 25,527 (La.App. 2 Cir. 12/1/93), 627 So.2d 741.

However, we note that Smith says that a house may be classified as inhabited if it is only lived in part of the time, even where the inhabitant does not have an intent to remain. Smith, 677 So.2d 589. The Smith court pointed to jurisprudence which determined that a rented motel room could be considered an inhabited dwelling, citing State v. Surtain, 529 So.2d 1375 (La.App. 5 Cir.1988). Additionally, the Smith court discussed the Black ruling, stating that "this court held that a house which is lived in for only part of the time may be classified as `inhabited' for the purposes of the inhabitation requirement of the burglary statute." Smith, 677 So.2d at 592.

At approximately 2:00 a.m. on June 8, 2003, Defendant went to the home of Flossie Simmons in Bunkie, Louisiana. Flossie lived in the house with her son, her daughter, Joyce Simmons, and Joyce's two sons. Defendant had previously had a relationship with Joyce and is the father of her sons. During the trial, Flossie and Joyce both testified that they were inside the structure, which they both called an apartment, at the time of the incident. The women described the building as a wash room that had been renovated to include a bathroom and an area with a sofa, chair, television, and air conditioner. Flossie stated that Joyce often entertained friends in the apartment where she could have more privacy and slept there even though she also maintained a bedroom in the main house and usually slept there. Joyce also...