Opinion
NO. 2011-KA-0298
02-08-2012
STATE OF LOUISIANA v. NOLAN A. LONG
Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney COUNSEL FOR THE STATE OF LOUISIANA Edward R. Greenlee LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 496-120, SECTION "H"
Honorable Camille Buras, Judge
Judge Terri F. Love
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Terri F. Love, Judge Rosemary Ledet)
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
COUNSEL FOR THE STATE OF LOUISIANA
Edward R. Greenlee
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT
CONVICTION REVERSED; SENTENCE REVERSED
The State charged the defendant with committing unauthorized use of a motor vehicle, and the defendant pled not guilty at arraignment. The trial court conducted a hearing and denied the motions to suppress the evidence and the identification and found probable cause. The defendant was tried by a jury and filed a motion for a special jury instruction, which the trial court denied.
We conclude that the State failed to satisfy its burden of proving the elements of the crime of unauthorized use of a motor vehicle. Further, we are unable to conclude with certainty that the guilty verdict actually rendered at trial was not attributable to the court's failure to properly instruct the jury on the required proof to establish the crime of unauthorized use a motor vehicle. The defendant's conviction and sentence are reversed.
PROCEDURAL HISTORY
The State charged the defendant, Nolan Long (hereinafter "Defendant Long") with committing unauthorized use of a motor vehicle. Defendant Long pled not guilty at arraignment. The trial court conducted a hearing on defense motions and denied the motions to suppress the evidence and the identification and found probable cause.
Defendant Long appeared for trial and elected to be tried by jury. Through counsel, Defendant Long filed a motion for a special jury instruction, requesting that the jury be charged in conformity with State v. Stevenson, 2002-1152 (La. App. 4 Cir. 1/22/03), 839 So.2d 203 and State v. Bias, 400 So.2d 650 (La.1981) relative to the requirement that the defendant's guilty knowledge be established beyond a reasonable doubt. The trial court denied Defendant Long's motion.
The jury found Defendant Long guilty as charged. Thereafter, the State filed a multiple bill charging Defendant Long with being a second felony offender. Defendant Long filed a motion for new trial, which the trial court denied. Defendant Long waived all legal delays, and the court sentenced him to six years at hard labor. Defendant Long then pled guilty to the multiple bill, and the trial court vacated the previous sentence and sentenced him to six years at hard labor concurrent with any other sentence. The trial court granted Defendant Long's motion for appeal.
FACTUAL BACKGROUND
Officer Alden Moton testified that on the evening of March 14, 2010, he observed a blue Toyota Camry traveling on North Broad Street without its headlights illuminated. Officer Moton turned on his overhead lights and stopped the vehicle. He ran the license plate and learned that the vehicle was stolen in a carjacking the day prior. Officer Moton exited his vehicle and informed the driver of the violation at which time the driver drove away expeditiously.
Officer Moton pursued the vehicle but temporarily lost sight of the vehicle as it executed a series of turns. By the time Officer Moton regained visual contact, he observed that the vehicle stopped, and three subjects were exiting the vehicle and fleeing. Defendant Long exited the vehicle from the front passenger seat.
The occupants fled down Onzaga Street and turned onto North Miro Street, where Officer Moton lost sight of all three subjects. He began canvassing the area for the subjects and radioed for backup, and approximately three additional officers arrived to assist.
When Officer Moton looked under a house located at 1637 North Miro Street, he observed Defendant Long hiding there. Officer Moton ordered Defendant Long to come out from under the house, and as Officer Moton grabbed Defendant Long, he stated to Officer Moton that he ran because he had marijuana on his person and he was on probation for simple robbery. Officer Moton confirmed that Defendant Long was in fact on probation as he stated. Officer Moton searched beneath the house for marijuana to no avail. Officer Moton testified that the officers did not search along the path where Defendant Long ran. The remaining two subjects escaped capture.
Virginia Pryor testified that on March 13, 2011, at approximately 5:30 a.m., someone with a gun approached her vehicle and demanded her keys. She relinquished her keys to the perpetrator, who then fled in her vehicle. Ms. Pryor identified some photographs of her vehicle that were taken upon its recovery. Ms. Pryor confirmed that she did not authorize Defendant Long to use her vehicle.
ERRORS PATENT
A review of the record for errors patent reveals none. However, in Defendant Long's fourth assignment of error, he asserts that the trial court failed to inform him of the two-year time limitation on filing an application for post-conviction relief pursuant to La. C.Cr.P. art. 930.8(C). Defendant Long seeks a remand on this basis for the trial court to inform him of the time limitations for a filing an application for post-conviction relief.
In State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189, the Louisiana Supreme Court held that La. C.Cr.P. art. 930.8(C), which requires the trial court to inform the defendant of the limitation period for filing an application for post-conviction relief, is precatory language which does not bestow an enforceable right on an individual defendant. As decided in State v. McDonald, 2002-2347 (La. App. 4 Cir. 2/19/03), 841 So.2d 38, this Court favors notifying a defendant of his rights under La. C.Cr.P. art. 930.8, when the trial court failed to do so, by advising the defendant of such right in its written appellate opinion. Therefore, in the interest of judicial economy, we note for Defendant Long that La. C.Cr.P. art. 930.8 generally requires that applications for post-conviction relief be filed within two years of the finality of a conviction.
Strictly by designation, Defendant Long incorporates the trial court's denial of his motion for new trial as his second assignment of error. For purposes of argument, he groups the two assignments together but fails to brief the second assignment; as such it is deemed waived. Uniform Rules Courts of Appeal, Rule 2-12.4. However, we note that the denial of a motion for new trial based upon La. C.C.P. art. 851(1) alleging that the verdict is contrary to the law and evidence is not subject to review on appeal. State v. Guillory, 2010-1231 (La. 10/8/10), 45 So.3d 612.
SUFFICIENCY OF EVIDENCE
Defendant Long contends the evidence produced against him was insufficient to establish his guilt. The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Rosiere, 488 So.2d 965, 968 (La. 1986).
In order to obtain a conviction, the State must prove the elements of the crime charged beyond a reasonable doubt. The State had the burden to prove the elements of the crime of unauthorized use of a motor vehicle. La. R.S. 14:68.4 provides:
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 movable permanently.
The Supreme Court has expressly construed unauthorized use of a movable as also "requiring a showing of mens rea or criminal intent ..." State v. Bias, 400 So.2d 650, 653 (La.1981); State v. Stevenson, 02-1152, p. 4 (La. App. 4 Cir. 1/22/03), 839 So.2d 203, 205. In Bias, the Court stated:
[W]e construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent, since the "evil" state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another). C.Cr.P. art. 381.Bias, 400 So.2d at 653.
Accordingly, in cases involving a stolen vehicle, the State must prove that the defendant took or used the vehicle with the knowledge that it was stolen. State In Interest of H.N., 97-0982 (La. App. 4 Cir. 7/8/98), 717 So.2d 666; State In Interest of O.B., 559 So.2d 31 (La. App. 4th Cir.1990).
Defendant Long contends that the State failed to establish the element of guilty knowledge - that is - that he either knew or should have known that the vehicle was stolen or that its use was unauthorized. Defendant Long argues that there was nothing about the vehicle that would have indicated it was stolen. The windows were not broken; the steering column was intact; and the keys were in the ignition.
This Court has addressed sufficiency claims in cases involving passengers in stolen vehicles charged with unauthorized use of a motor vehicle in several matters.
In State In the Interest of H.N, this Court reversed the delinquency adjudications of three juvenile defendants found guilty of unauthorized use of a movable. The three juveniles were passengers in a vehicle involved in a brief police pursuit. After the vehicle crashed, the juveniles fled on foot and were apprehended. The vehicle was stolen earlier in the evening from in front of the victim's house. Police found no damage to the steering column, but the motor was running even though there was no key in the ignition.
All three juveniles testified and essentially stated that when they entered the vehicle, they saw nothing to indicate that it was stolen and that they panicked and fled after the collision when the driver told them to run.
In reversing the adjudications, this Court cited its opinion in State In Interest of O.B., where the two juvenile defendants were apprehended under similar circumstances involving a police chase and a brief attempt to flee on foot. In O.B., there was testimony that a passenger would not have been able to see the broken pieces of the steering column on the floor by the driver's seat, nor would the broken steering column be visible except to the driver. As in In the Interest of H.N, in O.B., defendants testified in their own defense explaining that they accepted a ride from an acquaintance and did not know that the car was stolen until the police pursuit ensued, which caused them to panic and flee after the vehicle was stopped.
In reversing the adjudication, this Court stated:
Aside from the inference which could be drawn from O.B.'s and W.L.'s presence in the stolen vehicle, the state provided insufficient evidence to prove that O.B. and/or W.L. took or used the vehicle with the knowledge that it was stolen.State In The Interest of O. B., 559 So.2d at 33.
Similarly, in State In the Interest of H.N., this Court stated:
Here the defendants denied knowing that the Mazda was stolen when they accepted the ride. There was no evidence of forced entry. There was no broken glass in the interior of the vehicle or damage to the steering column. There was a key in the ignition when the defendants entered the car. The defendants testified that they fled because they panicked.Id., pp. 4-5, 717 So.2d at 668.
Recently, in State in the Interest of T.C., 2009-1669 (La. App. 4 Cir. 2/16/11), 60 So.3d 1260, this court affirmed the adjudication of a juvenile who was apprehended driving a stolen vehicle. In T.C., a New Orleans police officer stopped a vehicle with a Texas license plate after observing that the brake tag and vehicle registration tag on the windshield had expired. The juvenile could not produce identification but willingly gave his name, date of birth, social security number, and address. The juvenile told the arresting officer that he had obtained the vehicle and keys from his cousin. After determining that the vehicle had been reported stolen, the officer arrested the juvenile.
After reviewing the relevant jurisprudence, this Court distinguished State In the Interest of H.N. and State In the Interest of O.B. on the basis that T.C. was a driver, not an unwitting passenger, and concluded that the trier of fact did not err in accepting the testimony presented to it.
In State in the Interest of C.B., 09-1114 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, this Court reversed an adjudication of unauthorized use of a motor vehicle on insufficient evidence. C.B. accepted a ride in a Krispy Kreme work truck with a man he recognized from his neighborhood, and the driver was wearing a Krispy Kreme shirt and indicated that he worked for the company. Id. at p. 4, 28 So.3d 526-27. This Court concluded that the State produced no evidence that C.B. knew the vehicle was stolen and no evidence that C.B. had the necessary criminal intent beyond a reasonable doubt to be adjudicated delinquent of unauthorized use of a motor vehicle, as required by State v. Bias, supra. The evidence revealed that the key was in the ignition and there was no visible sign of forced entry that would have led C.B. to know that the vehicle was stolen (emphasis supplied). Id.
We are unable to distinguish the present circumstances from those presented in State In the Interest of H.N., State In the Interest of O.B., and State In the Interest of C.B. Officer Moton testified that after he was apprehended, Defendant Long stated that he was not the driver of the vehicle. Officer Moton also testified that they key was in the ignition and that Defendant Long did not state whether he knew to whom the vehicle belonged. Officer Moton also testified that the ignition was not damaged in any way and none of the glass on the vehicle was broken. Officer Moton also testified that there was no damage to the car that would have made it appear as if forced entry was made into the vehicle. In fact, Officer Moton testified that he never suspected that the vehicle was stolen until he ran the license plate.
Further, Officer Moton testified that although he spoke to the owner of the vehicle about who had initially perpetrated the carjacking, she did not identify anyone as the perpetrator of the carjacking and he did not arrest Mr. Long for carjacking. The State did not produce any evidence that Defendant Long knew that the vehicle was stolen. We find that the mere inference of wrongful conduct by Defendant Long's presence as a passenger in the vehicle does not, beyond a reasonable doubt, create the necessary mens rea or criminal intent required for conviction. Accordingly, we reverse Defendant Long's conviction.
SPECIAL JURY INSTRUCTION
Defendant Long contends that the trial court erred when it denied his motion for a special jury instruction. Under La. C.Cr.P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. A requested jury charge must be supported by the evidence. The failure to read a requested special jury charge constitutes reversible error only when there is prejudice to the substantial rights of the defendant or the violation of some constitutional or statutory right. State v. Giles, 93-0103 (La. App. 4 Cir. 6/15/94), 639 So.2d 323; State v. Marse, 365 So.2d 1319 (La.1978); La. C.Cr.P. art. 921.
In his motion for a special jury instruction, Defendant Long sought an instruction relative to the requirement that a defendant's guilty knowledge be established beyond a reasonable doubt. Defendant Long argued that a mere reading of the elements of the statute would fail to convey to the jury that a criminal intent on the part of a defendant must be proved and that in order to obtain a conviction the State must prove beyond a reasonable doubt that the defendant knew his use of the vehicle was unauthorized. Accordingly, Defendant Long requested that the court issue the following charge:
Further, if you find that Mr. Long did not have a guilty mind or the criminal intent to use the motor vehicle of another without the other's consent - that is, if you find that the state has not proven beyond a reasonable doubt that Mr. Long knew he lacked authorization to use the motor vehicle of another - then you must find Mr. Long not guilty.
At the hearing on Defendant Long's motion for new trial, the trial court recited the charge that it issued to the jury with respect to the elements of the crime as follows:
The defendant is charged with unauthorized use of a motor vehicle belonging to Virginia Pryor. Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, without the consent of the other, or by means of fraudulent conduct, practices or representations. An intent to deprive the other permanently of the motor vehicle is not essential.The court also noted that it instructed the jury relative to the elements of an "attempt" and relative to the distinction between specific and general intent.
Thus, in order to find the defendant guilty of unauthorized use of a motor vehicle, you must find that the defendant took or used the 2000 Toyota Camry belonged (sic) to Virginia Pryor, and three, that the taking or use of the 2000 Toyota Camry was without the consent of Virginia Pryor or was by means of fraudulent conduct, practices, or representations.
We find merit in Defendant Long's argument that a mere recitation of the language of the statute would fail to adequately convey the required elements of proof. An invalid instruction on the elements of an offense is reversible error unless the evidence is otherwise sufficient to support the jury's verdict, and the jury would have reached the same result if it had never heard the erroneous instruction. State v. Hongo, 96-2060 (La.12/2/97), 706 So.2d 419.
Defendant's motion was sufficient to preserve the error.
As made evident by the discussion of the Defendant Long's sufficiency claim, we cannot say with certainty that the guilty verdict actually rendered in this trial was not attributable to the trial court's failure to properly instruct the jury on the required proof to establish the crime of unauthorized use a motor vehicle.Accordingly, based on the foregoing, we find additional grounds for reversal of Defendant Long's conviction.
We note that during voir dire, the prosecutor twice incorrectly informed the jury of the required elements of the crime. Initially, the prosecutor stated as follows:
In a situation like this with an unauthorized use of a movable, the defendant does not have to have been the person that actually took the movable, okay? We just have to prove - the State only has to prove that he used the movable, okay? Is everybody - I see a lot of puzzled faces like -
DECREE
We conclude that the State failed to satisfy its burden of proving the elements of the crime of unauthorized use of a motor vehicle, and we are unable to conclude with certainty that the guilty verdict actually rendered at trial was not attributable to the court's failure to properly instruct the jury on the required proof to establish the crime of unauthorized use a motor vehicle. The defendant's conviction and sentence are reversed.
CONVICTION REVERSED; SENTENCE REVERSED
The defendant objected to the foregoing statement, and an unrecorded bench conference ensured. Thereafter the prosecutor stated:
Ms. Kim, are you comfortable with that, with knowing that the State does have a burden of proof and we intend to meet it. And, I'll get to that later, but all we have to prove is that the car was stolen and that the defendant was riding in it. We have a couple of other things to prove, but I'm going to get to that. But, in this part of it, are you comfortable with that?
The defendant objected, and the trial court sustained the objection; however no curative instruction was issued.
The prosecutor's incorrect statements regarding the law during voir dire compounded the effect of the trial court's failure to properly charge the jury.