State v. Marcello
| Decision Date | 23 June 1980 |
| Docket Number | No. 66732,66732 |
| Citation | 385 So.2d 244 |
| Parties | STATE of Louisiana v. Victor MARCELLO. |
| Court | Louisiana Supreme Court |
L. Howard McCurdy, Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
Defendant, Victor Marcello, was charged by bill of information with simple burglary of the New Orleans Public Service, Inc. (NOPSI) building at 921 Union Street. Defendant waived trial by jury and was convicted by the trial judge. The court minutes and a notation on the bill of information reflect that the conviction was for attempted simple burglary. The transcript shows that the defendant was advised by the court both at verdict and sentencing that he had been convicted of simple burglary. The problem this conflict would otherwise present is obviated by the fact that there is no evidence of the specific intent necessary for a valid conviction of either crime. LSA-R.S. 14:62; LSA-R.S. 14:27.
A verdict of guilt is justified only when the record shows that at least some evidence was before the trier of fact for each essential element of the offense. See State v. Main Motors, Inc., 383 So.2d 327 (La., 1979) and State v. Mouton, 366 So.2d 1336 (La., 1978).
The simple burglary statute states, in pertinent part, that:
"Simple 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, . . ." LSA-R.S. 14:62.
The defendant must have had the specific intent to commit either a felony or a theft at the time of his unauthorized entry. State v. Anderson, 343 So.2d 135 (La., 1977). The requirement of specific intent also applies to attempted simple burglary. State v. Walker, 328 So.2d 87 (La., 1976).
"Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired and prescribed criminal consequences to follow his act or his failure to act." LSA-R.S. 14:10.
The State had to introduce at least some evidence that defendant had the active desire to commit a felony or theft in the NOPSI building.
Marcello testified that he had entered the building to clean up before looking for employment that evening. He had been sleeping in an air conditioning unit on the roof and had climbed down a ladder to enter the third floor ladies' restroom. Marcello washed with soap and water in the lavatory. Then, wiping his face with a wet paper towel, he entered the hallway from the restroom. He was immediately spotted by porter Kevin Smith who had heard the sound of running water. Marcello ran back into the restroom, climbed out the window, and jumped four feet across into an adjacent parking garage. Police found, chased and arrested him in the garage. Porter Smith, who had cleaned the restroom...
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Dowell v. CM LENSING
...to commit a theft or other felony. See State v. Ricks, 428 So.2d 794 (La.1983) (mere presence in house not sufficient); State v. Marcello, 385 So.2d 244 (La.1980) (accused entered business establishment, without authority, to wash up in the restroom). Yet, here, there was proof of more than......
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State v. Wilson, 2006-KA-1421.
...State v. Dunn, 263 La. 58, 267 So.2d 193 (1972), the defendant was found inside a public building during business hours. In State v. Marcello, 385 So.2d 244 (La.1980), where the defendant entered a public building after hours, the Court addressed the issue of the defendant's specific intent......
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State v. Wright
...held this evidence was insufficient and that mere unauthorized presence on the premises did not constitute a burglary. In State v. Marcello, 385 So.2d 244 (La.1980), the evidence indicated the defendant had been sleeping in an airconditioning unit on the roof of a building and climbed down ......
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State v. Hooker, 25152-KA
...car arrived. All of this creates a strong inference that his intent was to commit a theft therein. Hooker cites, however, State v. Marcello, 385 So.2d 244 (La.1980), as authority for a different inference that can be drawn from similar facts. There a security guard in the NOPSI building aft......