State v. Nelson, 44,762-KA.

Citation25 So.3d 905
Decision Date28 October 2009
Docket NumberNo. 44,762-KA.,44,762-KA.
PartiesSTATE of Louisiana, Appellee v. Lloyd Wayne NELSON, Appellant.
CourtCourt of Appeal of Louisiana (US)

Edward K. Bauman, Lake Charles, for Appellant.

Charles R. Scott, II, District Attorney, Tommy J. Johnson, Laura O. Wingate, Jacob P. Broussard, Assistant District Attorneys, for Appellee.

Before WILLIAMS, PEATROSS and LOLLEY, JJ.

WILLIAMS, J.

The defendant, Lloyd Wayne Nelson, was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62, and theft of used building components, a violation of LSA-R.S. 14:67.23. Following a trial by jury, he was convicted as charged. The trial court sentenced the defendant to serve eight years in prison at hard labor for each conviction, with the sentences to be served consecutively. The trial court also ordered the defendant to serve 30 days in prison for each conviction, in lieu of the payment of court costs, with credit for time served. For the reasons set forth herein, we affirm the defendant's convictions. However, we amend the defendant's sentences, vacating the portion of the sentences which imposed 30 days in prison in lieu of the payment of court costs. The sentences are affirmed as amended.

FACTS

On July 26, 2007, at approximately 6:00 a.m., Joe Wiggins observed the defendant walking down Morningside Drive in Shreveport, Louisiana, carrying a brown paper bag. Another witness, Gene Nelms, testified that he saw a man walk up the driveway of a vacant house and around to the back of the house. A short time later, Nelms heard the sound of breaking glass and called the Shreveport Police Department ("SPD").

SPD Captain Ken Jackson responded to the call and arrived on the scene at approximately 6:47 a.m. Capt. Jackson spoke to Nelms, who related what he had witnessed. By that time, SPD Corporal Richard McDonald had arrived on the scene. Cpl. McDonald entered the vacant home and heard what he described as the "steady rattling" of the house's plumbing pipes. Soon afterwards, Capt. Jackson found the defendant walking around the house. Capt. Jackson noticed that the defendant and his clothing were "very dirty" and that the dirt on the defendant appeared to be the same as the dirt found underneath the vacant house. Cut pieces of plumbing copper were found on the ground near where the defendant was located. Capt. Jackson detained the defendant.

The defendant was subsequently arrested and charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62, and theft of used building components, a violation of LSA-R.S. 14:67.23. Following a jury trial, he was convicted as charged.1 The defendant filed motions for new trial, arrest of judgment and post-verdict judgment of acquittal. The trial court denied the motions. The defendant was sentenced to serve eight years in prison at hard labor for each conviction. The sentences were ordered to be served consecutively.2 The trial court also ordered the defendant to serve 30 days in prison for each conviction, in lieu of the payment of court costs, with credit for time served. The trial court denied the defendant's motion to reconsider sentences. The defendant appeals.

DISCUSSION
Sufficiency of the Evidence

The defendant contends the evidence was insufficient to prove that he was guilty of the crimes charged beyond a reasonable doubt. Much of the defendant's argument with regard to the sufficiency of the evidence concerns the state's proof of his identity as the offender. Specifically, he argues that Nelms, the witness who called the police, excluded him as the person he saw going to the rear of the vacant house prior to hearing the glass break. The defendant also argues that no one saw him enter the house and that he would not have had sufficient time to cause the damage to the house in the amount of time described by the witnesses. The defendant further argues that the lone fingerprint found inside of the house was not of sufficient quality to permit an analysis to prove that he was the perpetrator.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard, now legislatively embodied in LSA-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 fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App. 2d Cir.1/14/09), 1 So.3d 833. 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. 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. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497.

In cases involving a defendant's claim that he was not the person who committed the crime, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047; 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. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So.2d 769. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La. App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

In the instant case, Joe Wiggins testified that he was on the front porch of his house when he saw the defendant walking down Morningside Drive toward Hearne Avenue. Wiggins testified that the defendant had a brown paper bag in his hand. Wiggins unequivocally identified the defendant as the man he saw that morning, stating that he had seen the defendant in the neighborhood on other occasions.

Capt. Jackson testified that, on the morning of the incident, Wiggins told him that the defendant had walked by earlier that morning carrying a brown paper bag that contained a pair of pliers with red handles. Although Wiggins was unable to recall telling the officer that the bag contained pliers, he was able to identify the bag found inside the vacant house as the bag the defendant had been carrying. The shears that were recovered at the scene had red handles.

Gene Nelms testified that he saw a man walk up the driveway of the vacant house and go around to the back of the house. Nelms also knew the defendant from having seen him in the neighborhood; however, Nelms testified that the man he observed walking around the vacant house was not the defendant.

Capt. Jackson and Cpl. McDonald testified with regard to their investigation on the morning of the defendant's arrest. They stated that when they responded to the call, they found the defendant outside of the vacant house. Capt. Jackson and Cpl. McDonald examined the scene outside of the house and discovered that a pane of glass in the rear door of the house had been broken and that the door had been opened. The officers went inside of the house, where they found a brown paper bag, some copper plumbing items and a pair of black rubber gloves. Various items around the house had been destroyed or displaced: metal fixtures were out of place, the hot water tank had been turned over and metal items had been pulled out of the wall. Underneath the house, the officers found a pair of shears with red handles lying adjacent to some cut pieces of copper plumbing pipe. One of the officers encountered the defendant walking around the house and noticed that the grass beneath the house had been pushed down as if someone had been lying there. The defendant and his clothing were covered in dirt. The officers did not find anyone other than the defendant near or inside of the vacant house. Photographs of the storage shed behind the house depict a yellow bag; the bag was filled with cut pieces of copper.

The defendant testified at the trial and denied removing the copper and other metal from the...

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