State v. Shaw

• Decision Date: 25 June 2003
• Docket Number: No. 37,168-KA.,37,168-KA.
• Citation: 850 So.2d 868
• Parties: STATE of Louisiana, Appellee, v. Peter Anton SHAW, Appellant.
• Court: Court of Appeal of Louisiana — District of US

850 So.2d 868

STATE of Louisiana, Appellee, v. Peter Anton SHAW, Appellant.

No. 37,168-KA.

Court of Appeal of Louisiana, Second Circuit.

June 25, 2003.

Louisiana Appellate Project, by James E. Beal, Jonesboro, Indigent Defender Board, by Andrew Jacobs, for Appellant.

James M. Bullers, Schuyler Marvin, District Attorneys, Robert Randall Smith, Dale N. Montgomery, II, Assistant District Attorneys, for Appellee.

Before PEATROSS, DREW, & KOSTELKA (Pro Tempore), JJ.

PEATROSS, J.

Defendant, Peter Anton Shaw, was charged with one count of unauthorized use of a movable valued at over $1,000, in violation of La. R.S. 14:68¹, and with two counts of simple criminal damage to property valued at greater than $500, in violation of La. R.S. 14:56². Defendant was tried by a jury and convicted as charged. Subsequently, the State filed an habitual offender bill of information charging Defendant as a second-felony offender. The trial court found Defendant to be a second-felony offender and sentenced him to serve six years at hard labor on the count of unauthorized use of a movable and three years on each count of simple criminal damage to property. The trial court ordered these sentences to run concurrent with each other, but consecutive with any other sentence Defendant must serve. Defendant now appeals his convictions and sentences. For the reasons stated herein, we affirm.

FACTS

At approximately 2:00 a.m. on Sunday, August 19, 2001, Defendant drove his truck on the property of Mark and Patty Villarreal ("the Villarreals"), in Haughton, Louisiana, where their house was under construction.³ Defendant stopped his truck at a driveway leading to the garage. Inside the garage was a tool trailer containing equipment, tools and also a new motorcycle, collectively valued at approximately $10,000, according to the State. The driveway had not been completed; however, Defendant was able to get his truck close to the garage because 60 feet of "form works" that stood between the driveway and the garage had been removed, allegedly by Defendant.⁴

It had rained on the preceding Saturday and Defendant's vehicle became stuck in mud that had formed in the driveway. Defendant admitted to pulling up some form works to put under the tires of his vehicle for traction, but he said he did not pull up several feet of form works. When he failed to get his vehicle out of the mud, Defendant decided to use a tractor with a front-end loader, which was sitting on the construction site, to try and pull his vehicle out of the mud. The tractor was owned by Rick McAnn ("McAnn"), a landscape contractor. The key to the tractor was in the tractor ignition and Defendant did use it, but his attempt to get his truck out of the mud failed. Defendant then called a friend, Mike Harris ("Harris"), who came and pulled Defendant's truck out of the mud with a tow truck.

While using the tractor, Defendant ran over several of the form works and damaged most of the carpentry work that had been completed in preparation of pouring the concrete on Monday. The Villarreals had to pay an additional $800 to their builder to repair the damage. Furthermore, while using the tractor, Defendant damaged the tractor when he broke the key in the ignition. McAnn also found that the tractor was "off kilter" because the front end loader/main frame was bent. Over $2,000 in damage was done to the tractor.

The next day, Defendant informed the Villarreals and McAnn that he was the person who caused the damage to their property. McAnn and Defendant, however, disagreed about the damage to the ignition and front end loader/mainframe of the tractor. Defendant claimed that all he thought he damaged on the tractor was the key when it broke in the ignition. He denied that there was any other damage done to the tractor. Defendant later made conflicting statements about whether or not he used the front end loader/mainframe to try to pull his truck out of the mud. Subsequently, he agreed to pay for all the damage that he caused.

Defendant, however, failed to pay for any of the damage he caused to the property of the Villarreals or to the property of McAnn. On November 5, 2001, Defendant was charged by bill of information with the crime of unauthorized use of a movable valued at an amount greater than $1,000. On January 31, 2002, the bill of information was amended to add the charge of two counts of simple criminal property damage amounting to a sum greater than $500.

A jury trial commenced on May 15, 2002. During the course of his opening statement, the prosecutor stated that:

Some time late Saturday night, early Sunday morning, however you'd call it, around 2:00 a.m. or so, an attempt was made to enter that property. On that property was a tool shed. In that tool shed was equipment and tools and other things, $10,000.00 in value or so. And the driveway led straight up to that tool shed. One little problem in that was that driveway was in the process of being constructed. It had concrete form works built up around it. So in other words, you couldn't drive up to it without running over the concrete.

Defendant did not object to this particular statement at the time of the opening argument, but now argues that these were prejudicial remarks because they alluded to an attempted simple burglary for which Defendant was not charged.

At trial, the jury heard testimony from Bobby Ball ("Ball")⁵, a witness for the State. Ball testified that someone had pulled up forms which would allow access into the garage area or area where the tool trailer was located. He further testified that "... the form being taken up and moving around, moved around, it had to be done by hand because there was no vehicle involved. Somebody intentionally pulled that form up and moved it around so it would be open." Finally, he testified about the damage that was done to the Villarreals' construction works and he also testified that Defendant admitted to him what he had done on the night of the incident:

District Attorney: What did Mr. Shaw tell you about his use of the tractor?

Mr. Ball: He stated that he came in there with his truck and he got stuck. He went and got on the tractor, started the tractor and tried to use the front end loader to pick up the back of the truck to unstick it. He said when he picked it up the bucket slipped and did some damage to the back of his truck but he could not move the truck with the tractor.

D.A.: Did Mr. Shaw admit to you that he had run over the-some of the concrete forms?

Mr. Ball: Yes, sir, he told me when we walked up there that he did all the damage with his truck.

The State also presented testimony from the Villarreals and McAnn, the victims in this incident. Mr. Villarreal testified that his driveway was set and ready for concrete pouring on Monday, August 20, 2001. He also testified that the form laid for the driveway had been destroyed and he and his wife had to pay an additional $800 to the contractor to repair the damage.

McAnn testified to the damages done to his tractor, including the tractor key being broken off in the ignition, the damage to the ignition and the damage to the front end loader. The estimate of the damages caused to McAnn's tractor was approximately $2,200.

Ball, Mr. Villarreal and McAnn testified that Defendant agreed to meet with them and pay them for the damages. Defendant, however, never met with the victims as promised, nor did he pay for the damages. On the morning he promised to meet with the victims, Defendant drove past the Villarreals' house and never stopped or came back. Defendant claimed he did not pay for the damages because the contractor, Wendell Hammitt ("Hammitt"), was demanding that he pay Hammitt $3,000 for the damages. Defendant did not call Hammitt as a witness to corroborate his story. None of the victims had any contact with Defendant after he failed to meet with them to pay for the damages.

After hearing the testimony of the State's witnesses, Defendant took the stand and first testified that the reason he went to the Villarreals' house was to leave a flyer advertising his business. He later stated, however, that he left a sign, not a flyer at the Villarreals' house. Defendant then testified that, after his truck got stuck in the mud, he removed the sign.

There were also conflicting statements by Defendant regarding the damage to the tractor and his truck. Ball and Mr. Villarreal testified that Defendant admitted to them that he used the tractor and the front end loader to try to get his truck out of the mud. According to Mr. Villarreal, Defendant told him that the twist in his rear bumper and the dent in his quarter panel came from using the front end loader. Defendant later told police, however, that he used the tractor and damaged the switch, but he did not know whether he damaged the loader. During trial, Defendant testified that he drove the tractor, backed it up, the key broke and he never tried to lift the truck. He further testified that no damage was done to his truck.

Furthermore, during trial, Defendant stated that he pulled into the Villarreals' driveway and, when he backed out, the rear of his truck sank and slid to one side in the mud. Defendant's own witness, Harris, testified however, that he had to pull Defendant's truck out of the mud by hooking chains to the front of Defendant's truck because the rear of Defendant's truck was completely stuck in the mud closest to the garage area.⁶

In his closing argument the prosecutor stated:

There were tools and a tool trailer with valuables on the property. Now let's cover this issue the prosecution smokescreen. To S-3, which as you were shown by Ms. Villarreal where he had over in this corner the shed and the form that was moved out and you can see on this picture. There's no tractor tracks or anything. It was what looks like footprints over there.

Defendant did not object to these statements at the time of trial, but now claims that these remarks were...