Opinion
NUMBER 2015 KA 1131
12-23-2015
STATE OF LOUISIANA v. DENNIS NEAL
Hillar C. Moore, III, D.A. Monisa L. Thompson, A.D.A. Baton Rouge, LA Attorneys for Appellee State of Louisiana Prentice L. White Louisiana Appellate Project Baton Rouge, LA Attorney for Appellant Defendant - Dennis Neal
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 08-13-0605, Div. I Honorable Anthony J. Marabella, Jr., Judge Hillar C. Moore, III, D.A.
Monisa L. Thompson, A.D.A.
Baton Rouge, LA Attorneys for Appellee
State of Louisiana Prentice L. White
Louisiana Appellate Project
Baton Rouge, LA Attorney for Appellant
Defendant - Dennis Neal BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
Defendant, Dennis Neal, was charged by bill of information with second degree battery, a violation of La. R.S. 14:34.1 (count one); aggravated criminal damage to property, a violation of La. R.S. 14:55 (count two); and unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3 (count three). He pled not guilty and, following a jury trial, was found guilty as charged on all three counts. Defendant filed a motion for postverdict judgment of acquittal, which the trial court denied. The trial court initially sentenced defendant to: eight years at hard labor (count one), two years at hard labor (count two), and five years at hard labor (count three). The trial court ordered these sentences to be served consecutively. Thereafter, defendant filed a motion to reconsider sentence. The trial court resentenced defendant to five years at hard labor on count one, but maintained the previous sentences on counts two and three, as well as the direction that defendant's sentences be served consecutively. Defendant now appeals, alleging no counseled and five pro se assignments of error. Defendant's appellate counsel has also filed a motion to withdraw. For the following reasons, we affirm defendant's convictions and sentences and grant his counsel's motion to withdraw.
FACTS
Defendant and Danyele Norwood (the victim) began dating in January of 2013. The couple lived together on Earl Gros Avenue in Baton Rouge for approximately five months, until mid-June of 2013. By June 13, 2013, defendant had moved out of the apartment due to a disagreement with the victim, and he had removed his belongings from the residence.
Around 10:00 p.m. on June 13, 2013, defendant went to the victim's apartment and began banging on the door. When Ms. Norwood would not open the door to allow him inside, defendant threw a brick through the apartment's bathroom window.
After he threw the brick, defendant left the area, but he returned around midnight. At that time, defendant again knocked on the victim's door, but he disguised his voice to make the victim think that it was his sister (who lived downstairs from the victim). Immediately after the victim unlocked the dead bolt, defendant kicked the door in, and he rushed the victim. He struck her repeatedly in her face and stomach using closed fists and his feet. Eventually, defendant's sister broke up the fight and transported the victim to the hospital. The victim was subsequently treated for multiple contusions and abrasions to her head and face, as well as a mild concussion and a shoulder bruise. The victim reported to the emergency room personnel that she was in a significant amount of pain.
On the night of the incident, the victim spoke to a police officer at the hospital. As a result of a subsequent investigation, defendant was ultimately arrested and charged with the instant offenses.
SUFFICIENCY OF EVIDENCE
In his first and second pro se assignments of error, defendant argues that the evidence was insufficient to support the jury's verdicts on counts two and three. With respect to count two, he argues that there was no concrete evidence of any property damage presented at trial. Regarding count three, defendant argues that the unauthorized entry conviction is not warranted because he and the victim were "live-in" boyfriend and girlfriend, thereby granting him authority to enter the residence at any time.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). See also La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (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 Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 and 2000-0895 (La. 11/17/00), 773 So.2d 732.
Aggravated Criminal Damage to Property
Aggravated criminal damage to property is the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. La. R.S. 14:55. Defendant does not challenge the "foreseeability" element on appeal. Rather, he argues only that the state failed to present sufficient proof of property damage.
The victim testified extensively at trial regarding the property damage done to her apartment by defendant. She described that defendant threw a brick through her bathroom window. She also detailed how defendant kicked in her door, causing damage to its frame. The damage done was extensive enough that the victim had to pay a total of $500.00 to have repairs made.
Defendant did not testify at trial However, he did call his sister, D'vana Turcuit, to testify on his behalf. While Turcuit stated that defendant only pushed the door, rather than kicking it, she did admit that the victim's window had been broken.
The evidence supports the jury's verdict. Viewed 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 defendant was guilty of aggravated criminal damage to property. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Despite the fact that the responding police officer did not take any pictures of the scene (perhaps because the victim had already relocated to the hospital by the time he arrived), the victim's testimony alone was sufficient to prove the property damage. If believed, the testimony of the victim alone, with no other evidence, is sufficient to prove the elements of the offense. See State v. Craddock, 2010-1473 (La. App. 1st Cir. 3/25/11), 62 So.3d 791, 795, writ denied, 2011-0862 (La. 10/21/11), 73 So.3d 380. We cannot say that the jury's determination was irrational under the facts and circumstances presented to it. Ordodi, 946 So.2d at 662.
Unauthorized Entry of an Inhabited Dwelling
Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person. La. R.S. 14:62.3(A). On appeal, defendant argues only that his entry could not have been unauthorized because he and the victim cohabitated in the apartment.
At trial, the victim testified regarding the circumstances surrounding when defendant left the apartment. She described that she and defendant had fought the day before the incident regarding what she believed to be his infidelity. On that day, while the victim was at work, defendant removed all of his belongings from the apartment, in addition to removing some items that the victim claimed belonged to her. The victim also testified that the apartment was rented in her name alone and that she paid the entirety of the monthly rent.
Defendant's claim to authority to enter the apartment stems from his prior cohabitation with the victim. However, we have previously rejected a similar claim regarding an aggravated burglary charge, which also includes the element of unauthorized entry.
In State v. Williams, 632 So.2d 351, 353-54 (La. App. 1st Cir. 1993), writ denied, 94-1009 (La. 9/2/94), 643 So.2d 139, the defendant and victim were married at the time of the offense, but the house belonged to the victim as her separate property, and she paid for the residence and was responsible for its upkeep. On May 25, 1991, the defendant had moved out of the family residence, given the victim his keys, and announced that he was not coming back. Over the course of the next couple of months, the defendant continually returned to the residence and harassed the victim, causing her to call the police each time. However, the defendant would leave before the police arrived. Id. at 353.
On July 19, 1991, using a key he had retained (unbeknownst to the victim), the defendant entered the victim's residence and raped her. Following this incident, the victim had her locks changed to prevent the defendant from entering her home again. The night after the locks had been changed, the defendant again attempted to enter the home using the old key. On July 22, 1991, the victim obtained a temporary restraining order. That same night, the defendant broke into the victim's house and committed numerous felonies, including aggravated rape and aggravated crime against nature. Id. at 354-57.
On appeal, the defendant argued that because he had lived at the residence until the May 25, 1991 separation, there was no unauthorized entry and, therefore, no evidence supporting his aggravated burglary conviction. Id. at 357. Rejecting this argument, we noted that the house was the victim's separate property, the defendant's exit from the residence, and the lack of reconciliation between the parties. Id. As a result, we concluded that the state had proved beyond a reasonable doubt the requisite element of unauthorized entry to support the aggravated burglary conviction.
In the instant case, due to the shortened timeline of events, the facts are not as pronounced as those in Williams, but they still support the jury's conclusion that defendant did not have authorization to enter the victim's apartment on the night of the incident. Although defendant and the victim had lived together until the day prior to the incident, defendant removed his (and some of the victim's) belongings from the apartment, which the jury might have concluded as evidence of a separation. In addition, analogous to the victim in Williams, Ms. Norwood testified that she alone was on the rental agreement and was responsible for paying the monthly rent. Finally, we note that while defendant argues he had authority to enter the apartment because of his cohabitation with the victim, the evidence presented at trial indicates that he never attempted to make an entry using a key, or by any other peaceful means.
The facts support the jury's verdict. Viewed 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 defendant was guilty of unauthorized entry of an inhabited dwelling. See Calloway, 1 So.3d at 418. We cannot say that the jury's determination was irrational under the facts and circumstances presented to it. Ordodi, 946 So.2d at 662.
This assignment of error is without merit.
JURY INSTRUCTIONS
In his third pro se assignment of error, defendant questions whether the trial judge properly instructed the jury regarding responsive offenses.
Initially, we note that neither party objected to the instructions that were read to the jury following trial. In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. C.Cr.P. art. 841(A). A new basis for an objection may not be raised for the first time on appeal. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem. It is also intended to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. See State v. McClain, 2004-0098 (La. App. 5th Cir. 6/29/04), 877 So.2d 1135, 1144, writ denied, 2004-1929 (La. 12/10/04), 888 So.2d 835; see also State v. Young, 99-1264 (La. App. 1st Cir. 3/31/00), 764 So.2d 998, 1005. Accordingly, this issue is not properly before us. Nonetheless, we do note that the trial court did, in fact, properly instruct the jury regarding the responsive offenses for each count defendant faced.
This assignment is without merit.
SENTENCING
In his two final pro se assignments of error, defendant raises arguments related to his sentencing. First, defendant argues that the trial court erred in failing to advise him of the minimum and maximum sentence for second degree battery. Next, defendant argues that the trial court erred in ordering his sentences to run consecutively.
Initially, we note that the trial court granted defendant's motion to reconsider sentence (filed on March 25, 2015) and resentenced defendant on May 12, 2015. Although defendant filed a motion to reconsider after his initial sentences were imposed, he failed to file a new motion to reconsider sentence after his resentencing, as is required to preserve appellate review. See State v. Smith, 2003-1153 (La. App. 1st Cir. 4/7/04), 879 So.2d 179, 183 (en banc). Defendant's failure to make or file a motion to reconsider his new sentences precludes him from raising an objection on appeal. See La. C.Cr.P. art. 881.1(E); State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 369, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173. Thus, defendant's arguments concerning his sentences are not properly before this court.
Moreover, even if these matters were properly preserved for review on appeal, we would find that these new sentences are not excessive or otherwise illegal. All of the sentences fall within the statutory sentencing range for each offense for which defendant was convicted. See La. R.S. 14:34.1(C) (prior to 2014 amendment), 14:55, and 14:62.3(B). While defendant argues that the trial court erred in not advising him of his minimum and maximum sentences at the time of resentencing on his second degree battery conviction, he cites no authority which indicates the trial court was required to do so.
We note that defendant's convictions resulted from a full jury trial, not guilty pleas, wherein this information might have some relevance to the pleas' voluntariness. --------
Furthermore, while concurrent rather than consecutive sentences are the general rule for multiple convictions arising out of a single course of criminal conduct, consecutive sentences are not necessarily excessive in such a case. See La. C.Cr.P. art. 883. Other factors must be taken into consideration in making this determination, such as whether the offender poses an unusual risk to public safety, the offender's criminal history, the dangerousness of the offense, the viciousness of the crimes, the harm done to the victim, and the potential for the defendant's rehabilitation. See State v. Crocker, 551 So.2d 707, 715 (La. App. 1st Cir. 1989); State v. Parker, 503 So.2d 643, 646 (La. App. 4th Cir. 1987).
Prior to imposing defendant's initial sentences, the trial court ordered a presentence investigation report. After considering the contents of that report, the trial court noted at the initial sentencing that defendant had declined to accept responsibility for his actions. The court also recited defendant's criminal history, including arrests and convictions dating back to 2003. The trial court noted that, in many instances, defendant's probation had been revoked for his subsequent commission of another offense.
Having reviewed the trial court's reasons and the entire record before us, we find no abuse of the trial court's broad sentencing discretion in imposing consecutive sentences, considering the violent nature of the instant offense and defendant's extensive criminal history. The consecutive sentences are adequately justified for these particular crimes and this particular defendant.
These assignments of error are without merit.
COUNSELED BRIEF
The counseled brief contains no assignments of error and sets forth that it is filed to conform with State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), wherein the Louisiana Supreme Court approved the procedures outlined in State v. Benjamin, 573 So.2d 528 (La. App. 4th Cir. 1990). Benjamin set forth a procedure to comply with Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), in which the United States Supreme Court discussed how appellate counsel should proceed when, upon conscientious review of a case, counsel finds an appeal would be wholly frivolous. Benjamin has repeatedly been cited with approval by the Louisiana Supreme Court. See Jyles, 704 So.2d at 241; State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam); State v. Royals, 600 So.2d 653 (La. 1992).
Defense counsel has reviewed the procedural history of the case in his brief. He set forth that, after a review of the record in this case, he has found no non-frivolous errors to present on appeal. Defense counsel noted that the only pretrial ruling made by the trial court was a finding of probable cause following a preliminary hearing. He also reviewed the facts of the case and found that they adequately supported the offenses charged. Accordingly, defense counsel has requested that this court conduct a review for error under La. C.Cr.P. art. 920. If the court finds no such errors, defense counsel has filed a motion to withdraw, requesting that he be relieved from further briefing.
Defendant was found guilty following a jury trial. This court has conducted an independent review of the entire record in this matter. We have found no reversible errors under La. C.Cr.P. art. 920(2). Furthermore, we have found no non-frivolous issues or trial court rulings that arguably support this appeal. Accordingly, defendant's convictions and sentences are affirmed. Defense counsel's motion to withdraw, which has been held in abeyance pending the disposition in this matter, hereby is granted.
For the foregoing reasons, the defendant's convictions and sentences are affirmed, and the motion to withdraw is granted.
CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.