State v. Shupp
| Decision Date | 03 February 2016 |
| Docket Number | No. 15–695.,15–695. |
| Parties | STATE of Louisiana v. William SHUPP. |
| Court | Court of Appeal of Louisiana — District of US |
185 So.3d 900
STATE of Louisiana
v.
William SHUPP.
No. 15–695.
Court of Appeal of Louisiana, Third Circuit.
Feb. 3, 2016.
John F. DeRosier, District Attorney, David Kimball, First Assistant District Attorney, Carla S. Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
Jonathan W. Brown, Lake Charles, LA, for Defendant/Appellant, William Shupp.
Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID KENT SAVOIE, Judges.
EZELL, Judge.
Defendant William Shupp was charged on August 1, 2013, via bill of information with armed robbery, a violation of La.R.S. 14:64, theft of a motor vehicle over $1500.00, a violation of La.R.S. 14:67.26, and false imprisonment with a dangerous weapon, a violation of La.R.S. 14:46.1. A preliminary hearing was held on September 6, 2013, following which the trial court found probable cause to charge Defendant. On June 9, 2014, Defendant filed a motion in limine, wherein Defendant requested that the State be precluded from introducing DNA evidence, surveillance videos, or testimony regarding same. A hearing was held on June 9, 2014, following which the trial court denied the motion.
Trial commenced on June 10, 2014. Defendant was found guilty by a jury on the charge of armed robbery and false imprisonment with a dangerous weapon. However, the jury reduced the charge of theft of a motor vehicle over $1500.00 to unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4.
On August 5, 2014, Defendant filed a motion for new trial. The matter was heard on the day of sentencing, August 6, 2014. Following argument, the trial court denied the motion. Defendant waived all time delays, and the trial court sentenced
him to thirty years of imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence for the offense of armed robbery, one year of imprisonment at hard labor for the offense of unauthorized use of a motor vehicle, and five years of imprisonment at hard labor for the offense of false imprisonment with a dangerous weapon. All the sentences were ordered to be served consecutively for a total of thirty-six years imprisonment. Defendant filed a motion to reconsider sentence. A hearing was held on March 4, 2014, and following arguments, the trial court denied the motion.
Defendant has perfected a timely appeal, wherein he alleges four assignments of error: 1) The trial court erred when it denied Defendant's motion to preclude certain evidence from trial; 2) The evidence was insufficient to sustain the jury's verdicts; 3) The convictions for armed robbery and false imprisonment with a dangerous weapon in this case constituted double jeopardy; and 4) The sentences were constitutionally excessive.
FACTS
On the morning of April 12, 2012, Defendant entered the store Tiger Nation in Lake Charles. He robbed the victim, Rebecca Stains, at gunpoint. He then tied her up and left her on the bathroom floor. Shortly thereafter, he returned and demanded the keys to her car and the pin number to her credit card.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent involving the jury's verdict as to count two and one error patent regarding the trial court's advisement of the time period for filing post-conviction relief. We will first address the error patent regarding the jury's verdict on count two.
First Error Patent as to Jury's Verdict on Count Two
For count two, the Defendant was charged with "theft of a motor vehicle valued over $1500.00." The jury returned a verdict, however, of "unauthorized use of a motor vehicle." This court finds the jury's verdict was non-responsive.1 A list of responsive verdicts for "theft of a motor vehicle" is not provided for in La.Code Crim.P. art. 814. Thus, the trial court should have used La.Code Crim.P. art. 815 to determine the appropriate responsive verdicts. The trial court and the parties apparently believed, however, that the responsive verdicts for "theft," which are provided for in La.Code Crim.P. art. 814, should be used as a guide.
The responsive verdicts for "theft" are provided for in La.Code Crim.P. art. 814(26). The trial court used La.Code Crim.P. art. 814(26) as a guide when it gave the following responsive verdicts to the jury in the present case:
1. Theft of a motor vehicle having a value over $1500.
2. Attempted theft of a motor vehicle having a value over $1500.
3. Theft of a motor vehicle having a value over $500 but less than $1500.
4. Attempted theft of a motor vehicle having a value over $500 but less than $1500.
5. Theft of a motor vehicle having a value of less than $500.
6. Attempted theft of a motor vehicle having a value of less than $500.
7. Unauthorized use of a motor vehicle.
8. Attempted unauthorized use of a motor vehicle.
9. Not guilty.
Although "theft" is obviously a similar offense to "theft of a motor vehicle," "theft of a motor vehicle" is not an offense specifically listed in La.Code Crim.P. art. 814. Thus, La.Code Crim.P. art. 815 controls the responsive verdicts that should have been given in the present case. It states:
In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.
The only way "unauthorized use of a motor vehicle" can be considered a responsive verdict of "theft of a motor vehicle over $1500.00" is if "unauthorized use of a motor vehicle" is considered a lesser and included offense of "theft of a motor vehicle over $1500.00" under La.Code Crim.P. art. 815(2). Under La.Code Crim.P. art. 815(2), the general test for determining whether an offense is a lesser and included offense of the offense charged is as follows:
[T]he test is whether the definition of the greater offense necessarily includes all the elements of the lesser. Stated in another way for practical application, this merely means that, if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive.
State v. Simmons, 422 So.2d 138, 142 (La.1982) (quoting State v. Poe, 214 La. 606, 38 So.2d 359, 363 (1948), (on reh'g)), superseded by statute on other grounds as stated in State v. Mallett, 552 So.2d 28 (La.App. 3 Cir.1989), writ denied, 556 So.2d 1258, and writ denied, 558 So.2d 567 (1990) (italics deleted).
At the time of the commission of the present offense, "theft of a motor vehicle" (the offense for which the Defendant was charged) provided in pertinent part:
A. Theft of a motor vehicle is the intentional performance of any of the following acts:
(1) The taking of a motor vehicle, which belongs to another, either without the owner's consent or by means of fraudulent conduct, practices, or representations, with the intention to permanently deprive the owner of the motor vehicle; or
(2) The taking control of a motor vehicle that is lost or mis-delivered under circumstances which provide a means of inquiry as to the true owner, and the person in control of the motor vehicle does not make reasonable efforts to notify or locate the true owner; or
(3) The taking control of a motor vehicle when the person knows or should have known that the motor vehicle has been stolen.
....
C. (1) Whoever commits the crime of theft of a motor vehicle when the misappropriation or taking amounts to a sum of one thousand five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
(2) Whoever commits the crime of theft of a motor vehicle when the misappropriation or taking amounts to a sum of five hundred dollars or more but less
than one thousand five hundred dollars shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both.
(3) Whoever commits the crime of theft of a motor vehicle when the misappropriation or taking amounts to a sum of less than five hundred dollars shall be imprisoned for not more than six months, or may be fined not more than one thousand dollars, or both.
La.R.S. 14:67.26.
"Unauthorized use of a motor vehicle," the crime for which the Defendant was found guilty, provides:
A. Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently....
B. Whoever commits the crime of unauthorized use of a motor vehicle shall be fined not more than five thousand dollars or imprisoned with or without hard
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...favorable to the prosecution. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see also State v. Shupp , 15-695 (La.App. 3 Cir. 2/3/16), 185 So.3d 900. As we noted previously, the State indicted Defendant on June 2, 2011, with first degree murder, a violation of La......