Opinion
2018 KA 0037
06-01-2018
STATE OF LOUISIANA v. LAVARION S. JEFFERSON
Warren L. Montgomery District Attorney Ronald T. Gracianette Matthew Caplan Assistant District Attorneys Covington, Louisiana Attorneys for Appellee State of Louisiana Prentice L. White Baton Rouge, Louisiana Attorney for Defendant/Appellant Lavarion S. Jefferson
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE 22nd JUDICIAL DISTRICT COURT WASHINGTON PARISH, LOUISIANA
DOCKET NUMBER 16-CR7-132332, DIVISION H HONORABLE DONALD M. FENDLASON, JUDGE Warren L. Montgomery
District Attorney
Ronald T. Gracianette
Matthew Caplan
Assistant District Attorneys
Covington, Louisiana Attorneys for Appellee
State of Louisiana Prentice L. White
Baton Rouge, Louisiana Attorney for Defendant/Appellant
Lavarion S. Jefferson BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ. McDONALD, J.
The State charged the defendant, Lavarion S. Jefferson, with armed robbery with a firearm, a violation of LSA-R.S. 14:64 and 14:64.3A. The defendant pled not guilty and, after a jury trial, the jury found him guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal, which the trial court denied. According to the minutes, the trial court sentenced the defendant to: (1) ten years imprisonment for the armed robbery conviction, and (2) five years imprisonment for the firearm enhancement, both sentences to be served at hard labor and without benefit of parole, probation, or suspension of sentence. The trial court ordered the sentences to run consecutively. The defendant now appeals, designating one assignment of error. We affirm the conviction and the ten-year sentence for armed robbery. We amend the five-year sentence for the firearm sentencing enhancement to provide that it be served at hard labor, and we affirm as amended. We remand to the trial court for correction, if necessary, of the commitment order.
FACTS
Shortly after midnight on June 21, 2016, Amelia Conerly and her toddler son were in the bathtub at their house on Williams Street in Franklinton, Louisiana. Mrs. Conerly's husband was at work. Her son got out of the tub, went into the hallway, and then ran back to his mother. The defendant, who had entered the Conerly house with Dantay Young, then walked into the bathroom and pointed a silver 9mm handgun at Mrs. Conerly and her son. The defendant, who was wearing a hooded jacket with the hood partially pulled over his face, told Mrs. Conerly not to look at him and kept asking her where the money was. Mrs. Conerly told him that she had a safe in the bedroom and where the key to the safe could be found. The defendant and Mr. Young went into the bedroom, took the safe and a jar filled with coins, and left the house.
Later that same day, Mr. Young turned himself in at the Franklinton Police Department. He gave a statement, implicating himself and the defendant, and was arrested. A few days later, the defendant was also arrested. The defendant did not testify at trial.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues the evidence was insufficient to support his conviction for armed robbery. Specifically, he contends that the State did not establish his identity as one of the perpetrators.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; LSA-Const. art. I, §2. In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in LSA-C.Cr.P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144. Furthermore, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a defendant's conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. See State v. Hughes, 05-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 01-3033 (La. App. 1 Cir. 6/21/02), 822 So.2d 161, 163-64.
The parties to crimes are classified as principals and accessories after the fact. LSA-R.S. 14:23. Principals are all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. LSA-R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam). The State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. Under this theory, a defendant charged with a robbery need not have actually performed the taking to be found guilty of the robbery. State v. Smith, 513 So.2d 438, 444-45 (La. App. 2 Cir. 1987). Further, a defendant convicted as a principal need not have personally held a weapon to be found guilty of armed robbery. State v. Dominick, 354 So.2d 1316, 1320 (La. 1978).
The defendant argues in brief that the crux of the State's case against him hinged on Dantay Young's "self-serving" testimony and Mrs. Conerly's "skewed" testimony. The defendant notes that the gun used in the armed robbery of Mrs. Conerly belonged to Mr. Young. The defendant claims that Mrs. Conerly saw a picture of him (the defendant) online, and that it is "highly questionable" that she could have described her assailant "without the help of the officer who interviewed her as well as [with help from] the internet."
Both Mrs. Conerly and Mr. Young identified the defendant as the person who entered Mrs. Conerly's bathroom while armed with a handgun. The defendant is incorrect in his assertion that Mrs. Conerly identified him online. Mrs. Conerly identified Mr. Young only after Mr. Young had been arrested, and Mrs. Conerly saw a local news agency photo of Mr. Young on her Facebook page. Mrs. Conerly never saw Mr. Young in her house and readily admitted as much in her testimony. The only person Mrs. Conerly saw in her house was the defendant, who came into her bathroom while she was in the bathtub. According to Mrs. Conerly, even though the defendant's jacket hood covered part of his face, she was still able to see his eyes and his nose. The defendant pointed a silver handgun at her and her son and demanded she tell him the location of her money. Mrs. Conerly told the defendant she had a safe in her bedroom closet. She testified the safe contained $200. Mrs. Conerly later identified, without hesitation, the defendant in a photographic lineup. She also identified the defendant in court as the person who robbed her and repeated in her testimony that there was no doubt that it was the defendant who entered her bathroom with a gun.
Mr. Young confirmed Mrs. Conerly's testimony. Mr. Young testified that he and the defendant were friends. According to Mr. Young, the defendant came to his (Mr. Young's) house the night of the robbery with his girlfriend, Veronica, and talked about "[g]oing on the lick," meaning going to steal something. The defendant asked Mr. Young for his gun. Mr. Young gave the defendant his 9mm handgun, and the defendant (the driver), Mr. Young, and Veronica, drove to Mrs. Conerly's house. While Veronica stayed in the car, the defendant went to the back of Mrs. Conerly's house and found a shovel. The defendant and Mr. Young both used the shovel to pry open the front door. Mr. Young stayed in the living room, while the defendant, armed with Mr. Young's handgun, went into the bathroom, and asked Mrs. Conerly about the money. The defendant then told Mr. Young to find the safe in a closet in the bedroom. Mr. Young found the safe and took it. The defendant came into the bedroom and took a "coin jar." The two perpetrators then ran out to the car, and Veronica drove them away. The defendant opened the safe with a key Mr. Young found; the defendant gave Mr. Young $100 and kept $100 for himself. Mr. Young identified the defendant in open court as the person with whom he entered Mrs. Conerly's house and as the person who approached Mrs. Conerly in the bathroom with a handgun and demanded money. The police later recovered a silver, semi-automatic handgun from a shed in Mr. Young's backyard.
The defendant, in brief, suggests that Mr. Young lacked credibility. According to the defendant, Mr. Young did not want to face a long prison sentence, so he implicated him (the defendant), knowing the jury would believe "his version of what happened since he talked first." The defendant also claims Mr. Young conveniently pointed the finger at him because he knew Mrs. Conerly "could not tell the difference between" him and Mr. Young.
Major Justin Brown, with the Franklinton Police Department, interviewed Mr. Young and heard his confession about being involved in the crime. Mr. Young made clear in his testimony that Major Brown never made any promises about a reduced sentence, but only that he (Major Brown) would "talk to the [District Attorney]." Mr. Young further indicated in his testimony that he was pleading guilty and that, in exchange for his testimony, he was going to receive at least a three-year sentence.
As shown by the foregoing, Mrs. Conerly clearly identified the defendant as the person who robbed her at gunpoint. Positive identification by only one witness is sufficient to support a conviction. Hughes, 943 So.2d at 1051. Further, an accomplice is qualified to testify against a co-perpetrator even if the State offers him inducements to testify. Id. The inducements would merely affect the accomplice's credibility. Id. Thus, whether Mr. Young was to be believed was a credibility determination made by the factfinder. An accomplice's testimony is materially corroborated if there is evidence that confirms material points in his tale and confirms the defendant's identity and some relationship to the situation. Id. Here, Mrs. Conerly's identification of the defendant as the one with the gun corroborates Mr. Young's similar identification.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985). In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 03-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). The defendant did not testify at trial. The jury heard all of the testimony and viewed the physical evidence presented to it at trial and found the defendant guilty. The State's evidence clearly established that the defendant was one of the perpetrators of the armed robbery and thus a principal to the crime. In finding the defendant guilty, the jury clearly rejected the defense's theory of misidentification. See Moten, 510 So.2d at 61.
After a thorough review of the record, we find the evidence negates any reasonable probability of misidentification and supports the jury's unanimous verdict. We are convinced that, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of armed robbery. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). The assignment of error is without merit.
SENTENCING ERROR
When a firearm is the dangerous weapon used in the commission of an armed robbery, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence, and this penalty shall be served consecutively to the sentence imposed under LSA-R.S. 14:64. LSA-R.S. 14:64.3A. According to the defendant's sentencing transcript, the trial court did not state that the firearm sentencing enhancement under LSA-R.S. 14:64.3A was to be served at hard labor. Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, LSA-C.Cr.P. art. 920(2) authorizes consideration of such an error on appeal. Further, LSA-C.Cr.P. art. 882(A) authorizes the appellate court to correct an illegal sentence on review.
The minutes indicate the five-year sentence (for firearm sentencing enhancement) is at hard labor. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
We find that correction of the defendant's illegally lenient sentence does not involve the exercise of sentencing discretion and, as such, there is no reason why this court should not simply amend the sentence. See State v. Corbitt, 04-2663 (La. App. 1 Cir. 6/10/05), 917 So.2d 29, 33, writ denied, 05-1656 (La. 2/3/06), 922 So.2d 1174. Accordingly, since a sentence at hard labor was the only sentence that could be imposed, we correct the sentence by providing that it be served at hard labor. See State v. McGee, 08-1076 (La. App. 1 Cir. 2/13/09), 2009 WL 390809 *4 (unpublished). We remand to the trial court for correction, if necessary, of the commitment order.
CONVICTION AND TEN-YEAR SENTENCE FOR ARMED ROBBERY AFFIRMED; FIVE-YEAR SENTENCE (FIREARM SENTENCING ENHANCEMENT) AMENDED TO PROVIDE THAT IT BE SERVED AT HARD LABOR AND AFFIRMED AS AMENDED; CASE REMANDED FOR CORRECTION OF THE COMMITMENT ORDER, IF NECESSARY.