State v. Nealon

• Decision Date: 30 September 2015
• Docket Number: No. 50,089–KA.,50,089–KA.
• Citation: 179 So.3d 661
• Parties: STATE of Louisiana, Appellee v. Nykeshun G. NEALON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

179 So.3d 661

STATE of Louisiana, Appellee

v.Nykeshun G. NEALON, Appellant.

No. 50,089–KA.

Court of Appeal of Louisiana, Second Circuit.

Sept. 30, 2015.

The "Q" Law Firm, L.L.C. by Peter Q. John, for Appellant.

John M. Lancaster, District Attorney, Penny Douciere, Kenneth D. Wheeler, Assistant District Attorneys, for Appellee.

Before CARAWAY, DREW and GARRETT, JJ.

CARAWAY, J.

Nykeshun Nealon was charged by bill of information with armed robbery and conspiracy to commit armed robbery. Following a jury trial, Nealon was found guilty as charged on both counts. The trial court sentenced Nealon to concurrent sentences of 35 years at hard labor for the armed robbery conviction and 15 years at hard labor for the conspiracy conviction. Nealon appeals urging insufficient evidence to convict and excessiveness of the imposed sentences. We affirm.

Facts

Upon his return home from his job as an assistant manager with the Rayville Wal–Mart, shortly before 11:00 on the evening of December 1, 2012, Joshua Bray heard rustling noises as he parked his truck in his garage and exited his vehicle. Shortly thereafter, three armed and masked men approached Bray. Bray recalled that one of the men wore a gorilla mask, one a red mask and the third had on a bandanna. Bray could see that the man who wore the bandanna was black.

Upon the men's approach, Bray fell to the ground screaming. The man in the gorilla mask told him to "shut up," and threatened to kill Bray, demanding that he take the men into his home. Bray heard the voices of all three men during the encounter but recalled that the man in the gorilla mask "talked a lot."

After the men entered Bray's home, he was thrown on the floor of his bedroom and questioned about a safe at Wal–Mart by the man who wore the gorilla mask. That man had at one point grabbed Bray's employee badge and made it clear that he was referring to the safe at Wal–Mart. The men never asked about the location of the safe in the store. Fearing that others would be harmed, Bray offered to retrieve money from the safe for the men. The man in the gorilla mask told Bray he could get into the safe if he desired.

The men asked Bray for a combination to the safe and threatened to kill him if he lied. They tied Bray's hands behind his back and draped a pillowcase over his face while pointing a gun to his temple. At the point when Bray informed the men that the safe was a combination safe, one of the men struck him in the head and he began to bleed; Bray thought that he had been shot. One of the men also yelled at the victim, demanding the safe combination. Bray "rattled off numbers," but was so scared that he did not know if they were right; in fact one of the men commented that the combination did not sound right.

Prior to their leaving, the men tied Bray's ankles with zip ties that Bray recognized as being similar to those used at Wal–Mart and given to employees for use in the store. They also gagged him with a sock and tied a belt around his mouth, leaving him on the floor. The men left, but not before taking Bray's cell phone, personal and work keys, wallet, shotgun and truck. Bray heard the man in the gorilla mask talk about looking up Bray's father's telephone number on the cell phone and threatening to kill him. Bray also recalled that the man in the gorilla mask instructed one of the men to stay behind and "watch" him, but Bray listened for a little bit and determined that all three had left. He was able to free himself and run to his neighbor's house where police were called. Bray suffered both a broken nose and eye socket for which he received medical treatment.

Upon questioning Bray, police learned that he had recently fired Nykeshun Nealon from his cashier's job at Wal–Mart. The discovery of Bray's truck at 3:00 a.m. the following morning, about .6 mile from Bray's home in close proximity to Nealon's parents' home, led police to further investigate Nealon. Nealon's parents gave their son's address to police who went to the location. Nealon told police he had been out for the evening in his girlfriend's car and denied being involved in the robbery. During a plain view search of the vehicle, police saw a brown jacket on the back seat of the car which matched the description of a jacket Bray indicated was in his truck. Later, Nealon's girlfriend gave police consent to search the vehicle and Bray ultimately identified the jacket as his. Police arrested Nealon in the early morning hours of December 2, 2012.

On January 30, 2013, Nealon was charged by bill of information with armed robbery and conspiracy to commit armed robbery. By an 11–1 jury vote, Nealon was convicted as charged. He was sentenced to concurrent sentences of 35 years for the armed robbery and 15 years for the conspiracy conviction. After a timely motion to reconsider sentence was denied by the trial court, this appeal ensued.

Discussion

In his first assignment of error, Nealon argues that the evidence submitted by the state was insufficient to convict him of the charged offenses and that the imposed sentences were unconstitutionally excessive considering his lack of a previous criminal record. Specifically, Nealon contends that the state provided no witness, fingerprint or DNA evidence to place him at the scene of the crime, no evidence showing that someone other than Nealon placed the jacket in the car, and utilized the fabricated testimony of an inmate to implicate him in the crimes.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), appellate courts review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. State v. Tate, 01–1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 05–0477 (La.2/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09–0310 (La.11/6/09), 21 So.3d 297.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983) ; State v. Parker, 42,311 (La.App.2d Cir.8/15/07), 963 So.2d 497, writ denied, 07–2053 (La.3/7/08), 977 So.2d 896 ; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98–2723 (La.2/5/99), 737 So.2d 747.

Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. State v. Lilly, 468 So.2d 1154 (La.1985). Circumstantial evidence provides proof of collateral facts and circumstances, from which the existence of the main fact may be inferred according to reason and common experience. Id.

When the conviction is based on circumstantial evidence, such evidence must exclude any reasonable hypothesis of innocence. La. R.S. 15:438 ; State v. Cummings, 95–1377 (La.2/28/96), 668 So.2d 1132. This evidentiary rule restrains the factfinder in the first instance, and the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. State v. Young, 618 So.2d 1149 (La.App. 2d Cir.1993).

The appellate court reviews the evidence in the light most favorable to the prosecution and determines whether an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway, 07–2306 (La.1/21/09), 1 So.3d 417.

Where 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. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02–2595 (La.3/28/03), 840 So.2d 566, 02–2997 (La.6/27/03), 847 So.2d 1255, cert. denied,540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94–3116 (La.10/16/95), 661 So.2d 442. Credibility determinations are the province of the trier of fact. State v. Johnson, 38,927 (La.App.2d Cir.11/23/04), 887 So.2d 751 ; State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96–1807 (La.2/21/97), 688 So.2d 520.

A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Robinson, 02–1869 (La.4/14/04), 874 So.2d 66. The reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99–0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

A jury's decision to accept the testimony of a defendant's cellmate is afforded due deference and there is no blanket exclusion of jailhouse witness testimony. Robinson, supra. La. C.E. art. 601 establishes the general rule that every person of proper understanding is competent to be a witness except as otherwise provided by legislation. Likewise, a witness may testify to a matter based on personal knowledge in accordance with La. C.E. art. 602. Id.

Furthermore, when the key...