Opinion
NO. 2012 KA 0867
12-21-2012
STATE OF LOUISIANA v. BRIAN C. MARTIN
Walter P. Reed Covington, La. Kathryn W. Landry Baton Rouge, La. Mary E. Roper Baton Rouge, La. Attorneys for Plaintiff/Appellee, State of Louisiana Attorney for Defendant/Appellant, Brian C. Martin
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
District Court No. 509250 "E"
The Honorable William J. Burris, Judge Presiding
Walter P. Reed
Covington, La.
Kathryn W. Landry
Baton Rouge, La.
Mary E. Roper
Baton Rouge, La.
Attorneys for Plaintiff/Appellee,
State of Louisiana
Attorney for Defendant/Appellant,
Brian C. Martin
BEFORE: CARTER, C.J., GUIDRY AND GAIDRY, JJ.
CARTER , C.J.
The defendant, Brian C. Martin, was charged by bill of information with aggravated flight from an officer (count 1), a violation of La. Rev. Stat. Ann. § 14:108.1, and simple burglary (count 2), a violation of La. Rev. Stat. Ann. § 14:62. He pled not guilty and, following a jury trial, was found guilty as charged on both counts. The defendant filed a motion for new trial and a motion for postverdict judgment of acquittal, both of which were denied. The State filed a multiple offender bill of information, and the defendant was adjudicated a second-felony habitual offender. For the aggravated flight from an officer conviction, the defendant was sentenced to two years imprisonment at hard labor; for the simple burglary conviction, the defendant received an enhanced sentence of twenty-four years imprisonment at hard labor without benefit of probation or suspension of sentence, with the sentences from both counts to run concurrently The defendant now appeals, designating two assignments of error. We affirm the convictions, habitual offender adjudication, and sentences.
The defendant had a prior conviction for simple burglary.
The sentencing transcript indicates the trial court correctly imposed the defendant's habitual offender sentence with no restriction on parole since neither the penalty provision of the substantive statute nor the habitual offender law authorize such a restriction on the defendant's parole. See La. Rev. Stat. Ann. § 14:62(B); La. Rev. Stat. Ann. § 15:529.1 (A)(1) & (G). The minute entry erroneously states the defendant's sentence is twenty-four years "without benefit of probation, parole, or suspension." When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 (La. 1983).
FACTS
On the night of June 8, 2011, Terry Hand was driving home on 1-12 in St. Tammany Parish. Hand observed the driver of a white sedan in front of him, later identified as the defendant, driving erratically. Hand called 911 to report there was an impaired driver on the road. The defendant and Hand exited off 1-12 at La. Highway 59 (Abita Springs exit). Hand continued to follow the defendant, who eventually turned into a parking lot and parked his white sedan next to an empty, parked BMW, owned by Jeffrey Wallace, who did not know the defendant. Hand continued to drive back and forth past the defendant so he could observe him. The defendant had gotten out of his white sedan with gloves on and, with a flashlight in his hand, peered into the BMW. The defendant then used a tire iron to break into the BMW. With a screwdriver from his own car, the defendant tampered with the BMW's ignition. Hand called 911 again and reported his observations. The defendant used the screwdriver to remove the CD player from the BMW He also took the faceplate to the stereo. The defendant went back to his white sedan with the CD player and faceplate, but before he could drive away, Deputy Clint Chatelain, with the St. Tammany Parish Sheriff's Office, drove his police unit into the parking lot. Deputy Chatelain announced his presence over the PA speaker and told the defendant to get out of the white sedan. The defendant this order and immediately took off in his vehicle.
The defendant, failing to turn on his headlights, fled on Highway 59. Deputy Chatelain gave chase with his lights and siren on. The defendant drove to Harrison Avenue, reaching speeds of 80 m.p.h., well over the posted speed limit of 35 m.p.h. As the defendant drove, he weaved into the other traffic lane, causing oncoming cars to drive onto the shoulder of the road to avoid being hit. The defendant then turned left onto 10th Street, where he proceeded a short distance before taking a right turn onto Quincy Avenue, which is a heavily populated residential area. With most of the streets having a posted speed limit of 25 m.p.h., the defendant continued through this area at speeds of 50 to 60 m.p.h. The defendant also ran at least four stop signs in attempting to elude Deputy Chatelain. The defendant finally turned onto B Street and, as he approached Henry Clay Avenue, he failed to negotiate the turn and crashed into a ditch on the avenue. The defendant then climbed out of his vehicle and lied on foot. About an hour later, the defendant, wearing dark-colored gloves, was found by the police hiding in bushes on 5th Street. The police found Wallace's CD player and faceplate in the defendant's vehicle, along with the screwdriver and tire iron.
The defendant testified at trial. The defendant admitted that he broke into Wallace's BMW, took his CD player, and then fled from the police. He stated, however, that he had consumed drugs and alcohol the same evening he committed these crimes. The defendant testified he took four pills he bought at a Texaco station, which contained a derivative of benzodiazepine. He also took a number of Xanax pills, drank some Jack Daniels mixers, and smoked synthetic marijuana. He also stated he had been treated for drug addiction. The defendant testified on cross-examination that his decision to break into the BMW and take the CD player was impaired by his intoxication.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues that the evidence was insufficient to support a conviction for simple burglary. Specifically, the defendant contends that his level of intoxication prevented him from forming the requisite intent to commit a felony or theft inside the BMW. The defendant does not dispute his conviction for aggravated flight from an officer.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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 also La. Code Crim. Proc. Ann. art. 821(B); State v. Ordodi, 06-0207 (La. 11/29/06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. Rev. Stat. Ann. § 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.
The crime of simple burglary is the unauthorized entering of any vehicle with the intent to commit a felony or any theft therein. See La. Rev. Stat. Ann. § 14:62(A). To be guilty of simple burglary, a defendant must have the specific intent to commit a felony or theft therein at the time of his unauthorized entry. State v. Guidry, 476 So. 2d 500, 503 (La. App. 1st Cir. 1985), writ denied, 480 So. 2d 739 (La. 1986). Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. Rev. Stat. Ann. § 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So. 2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So. 2d 1126, 1127 (La. 1982). Specific intent is a legal conclusion to be resolved ultimately by the trier of fact. Guidry, 476 So. 2d at 503.
La. Rev. Stat. Ann. § 14:15 provides in pertinent part:
The fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial, except as
follows:
* * * * *
(2) Where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime, this fact constitutes a defense to a prosecution for that crime.
Voluntary intoxication is a defense to a prosecution for simple burglary only if the circumstances indicate that it has precluded the presence of specific criminal intent. State v. Lewis, 525 So. 2d 215, 217 (La. App. 1st Cir. 1988), writ denied, 531 So. 2d 469 (La. 1988). When defenses which actually defeat an essential element of an offense, such as intoxication, are raised by the evidence, the State must overcome the defense by evidence which proves beyond a reasonable doubt that the mental element was present despite the alleged intoxication. State v. Harris, 527 So. 2d 1140, 1143 (La. App. 1st Cir. 1988).
The defendant in his brief does not deny that he committed the crimes he was charged with. He argues, however, that the combination of drugs and alcohol he had consumed prior to being apprehended by the police provided evidence of his impairment at the time he committed the simple burglary so as to vitiate specific intent.
Nothing in the record before us suggests that the defendant's alleged intoxication precluded the presence of the specific criminal intent required for simple burglary. Rather, the defendant's actions indicate that he was clearly aware of his actions. The defendant's putting on gloves and using a tire iron and screwdriver to break into Wallace's BMW and to remove the CD player and tamper with the ignition switch indicated a level of forethought and execution not consistent with a lack of intent to commit a theft. Moreover, the defendant's fleeing the scene of the theft the moment he was confronted by the police indicated awareness of wrongdoing. Thus, when Deputy Chatelain saw the defendant inside the white sedan and ordered him to get out of his vehicle, the defendant's response to the deputy and subsequent actions were not of a person unaware of what he was doing. Rather, the defendant's cognizance of having committed a crime was made manifest by his taking the police on a high-speed chase down Highway 59 and through a residential neighborhood to elude capture. Further, after the defendant drove his car into a ditch, he fled on foot and had the wherewithal to stay hidden from the police for another hour before he was apprehended.
Deputy Chatelain interviewed the defendant only a few hours after he had stolen the CD player and fled from the police. The deputy testified at trial that the defendant signed a waiver of rights form and provided a written statement in his own handwriting. In his written statement, the defendant described how he broke a small window panel out in the corner of the car to gain entry. He then removed the radio and stuck the screwdriver in the steering column in an attempt to drive the car. The defendant stated at trial that he did not want to challenge anything that was in his written statement. Deputy Chatelain was asked on direct examination, "Did you feel like he was intoxicated or impaired to a point where he didn't understand his surroundings, or his rights and things of that nature?" The deputy responded, "No." On cross-examination, Deputy Chatelain indicated that while the defendant did appear impaired, he was able to communicate, spoke intelligently, and appeared remorseful. The defendant testified about what and how much drugs and alcohol he had taken that day, but such statements were self-serving, and what he may or may not actually have ingested was never established at trial.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. 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. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So. 2d 78, 83. The fact that the record contains evidence which 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. 1st Cir. 1985).
The State presented sufficient evidence to establish the defendant was not intoxicated to such a degree that he did not have the intent to steal the CD player and faceplate from Wallace's BMW. A factfinder could have reasonably concluded the defendant had the specific intent to commit a simple burglary. See State v. Bias, 10-1440 (La. App. 3 Cir. 5/4/11), 63 So. 3d 399, 408-09, writ denied, 11-1063 (La. 11/14/11), 75 So. 3d 939; State v. Wilson, 44,586 (La. App. 2 Cir. 10/28/09), 26 So. 3d 210, 215-16, writ denied, 09-2655 (La. 1/28/11), 56 So. 3d 973. Further, the defendant's attempt to avoid apprehension by the police after taking the CD player and faceplate suggested a distinct awareness of wrongdoing. Flight and attempt to avoid apprehension indicate consciousness of guilt, and therefore, are circumstances from which a juror may infer guilt. See State v. Fuller, 418 So. 2d 591, 593 (La. 1982). Thus, the State proved beyond a reasonable doubt that the mental element was present despite any alleged intoxication. See Harris, 527 So. 2d at 1143.
After a thorough review of the record, we find that the evidence supports the jury's 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 simple burglary. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam).
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred in failing to specify the dates on which his sentences were to be served concurrently.
While the sentencing transcript is silent on whether the sentences are to run concurrently or consecutively, the minutes indicate the sentences are to run concurrently. Accordingly, the defendant is to serve concurrent sentences.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED.