Opinion
NUMBER 2013 KA 0692
01-23-2014
STATE OF LOUISIANA v. JASON D. RENARD
Walter P. Reed District Attorney Covington, LA Counsel for Plaintiff/Appellee State of Louisiana Kathryn W. Landry Special Appeals Counsel Baton Rouge, LA Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Counsel for Defendant/Appellant Jason Renard
NOT DESIGNATED FOR PUBLICATION
On appeal from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 517154, Division C
Honorable Richard A. Swartz, Judge Presiding
Walter P. Reed
District Attorney
Covington, LA
Counsel for Plaintiff/Appellee
State of Louisiana
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, LA
Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, LA
Counsel for Defendant/Appellant
Jason Renard
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY, J.
The defendant, Jason D. Renard, was charged by bill of information with armed robbery, in violation of La. R.S. 14:64, He pled not guilty and, after trial by jury, was convicted as charged. The defendant received a sentence of forty years at hard labor, with the first twenty years to be served without benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sentence, which the trial court denied.
The defendant has appealed, alleging that the evidence is insufficient to support the conviction and that the trial court erred in denying the motion for postverdict judgment of acquittal. He also contends that the instant sentence is constitutionally excessive and that the trial court erred in denying the motion to reconsider sentence. We affirm the conviction and sentence.
FACTS
On the afternoon of October 7, 2011, the defendant committed a robbery at the Central Progressive Bank, located on the corner of La. Hwy. 21 and Hyacinth in Covington, Louisiana. The victim, Amanda Gaines, was working as a bank teller when the defendant approached her and gave her a note indicating he had a gun and instructing her to put the money in a paper bag that he gave to her. At one point, the defendant raised his shirt, revealing what appeared to Ms. Gaines to be a gun "in the middle of his pants." The defendant left the bank with approximately $560. He was apprehended shortly thereafter within one mile of the bank in the Flowers Estates Subdivision. The defendant's Louisiana identification card and a black, plastic handle were located a short distance from the bank. However, the note, money, paper bag, and gun were never recovered.
At the trial, St. Tammany Parish Sheriff's Office (STPSO) Detective Jared Lunsford testified about the robbery investigation and apprehension of the defendant. He testified that approximately 15 officers searched the area between the bank and the location of the defendant's arrest, but only the defendant's ID card and a plastic gun handle were recovered. The victim, Amanda Gaines, testified about the circumstances of the robbery and identified the defendant as the perpetrator. STPSO Detective Alvin Hotard testified regarding his investigation of the robbery and the defendant's taped confession. Detective Hotard specifically recalled that, at one point in the "preinterview" before the taped confession, the defendant "mentioned something about possibly if there was a gun involved it may be more time." The defendant did not testify, nor did the defense call any witnesses.
ASSIGNMENTS OF ERROR NUMBERS 1 AND 2
In these assignments of error, the defendant contends that the trial court erred in denying the motion for postverdict judgment of acquittal, because the evidence is insufficient to support his armed robbery conviction.
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 conclude that the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. See La. C.Cr. P. art. 821; State v. Johnson, 461 So.2d 673, 674 (La. App. 1st Cir. 1984). The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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. R.S. 15:438 provides that in order to convict, the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Riley, 91-2132 (La. App. 1st Cir. 5/20/94), 637 So.2d 758, 762.
Louisiana Revised Statutes 14:64A provides: "Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." The defendant does not contest his identity, or the fact that he committed a robbery. However, he argues the State failed to establish that he used a dangerous weapon during the robbery. In his taped confession, while he admitted to committing the robbery, he denied using a gun. As noted above, a gun was never recovered, only a black, plastic handle. In his brief to this Court, the defendant states: "In this case, the question is raised as to whether the "gun" in question was real or merely just a plastic handle concealed in the waistband of [the defendant]." He then concludes: "The main issue is whether or not the plastic handle was utilized by [the defendant] in such a manner so as to create the risk of death or great bodily harm." The defendant then cites State v. Gould, 395 So.2d 647 (La. 1981) (on rehearing) (which was decided before the 1983 enactment of the crime of first degree robbery in La. R.S. 14:64.1), for the proposition that, in a robbery where the perpetrator does not brandish a weapon, no weapon is seen by a witness, and no weapon is ever recovered, the defendant's conviction for armed robbery must be reduced to simple robbery. We disagree, finding that Gould is not controlling under the facts presented herein.
Essentially, the defense argument relates to the credibility of the victim. The defense brief ignores the most relevant portions of the victim's testimony. As noted in the State's brief to this Court, Ms. Gaines testified that the black, plastic handle was not the object she observed tucked into the defendant's waistband during the robbery. The portion of the gun that she saw was larger than the plastic handle. Ms. Gaines also testified that the black, plastic handle would not have put her in fear for her life. Finally, she replied in the affirmative when asked if she distinctly remembered the defendant's note referring to a gun. Her testimony is clearly supported by State Exhibit 4, the photograph produced from the bank surveillance videos, depicting what appears to be a rather large gun handle protruding from the defendant's waistband.
As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). Furthermore, where 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. Richardson, 459 So.2d at 38.
The testimony of the victim is sufficient to establish the elements of the offense. State v. Creel 540 So.2d 511, 514 (La. App. 1st Cir.), writ denied, 546 So.2d 169 (La. 1989). The guilty verdict indicates that the jury accepted the testimony of the State's witnesses, particularly the victim, and rejected the defense argument that the defendant did not use a gun in the robbery. On appeal, this Court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Creel, 540 So.2d at 514. Moreover, 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. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).
After a careful review of the record, we find that the evidence supports the jury's determination. We are convinced that any rational trier of fact, viewing all of the evidence in the light most favorable to the prosecution, could have concluded that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of armed robbery. Despite the fact that a gun was never recovered, we cannot say that the jury's determination was irrational under the facts and circumstances presented. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662. Furthermore, an appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Accordingly, the trial court correctly denied the motion for postverdict judgment of acquittal.
These assignments of error are meritless.
ASSIGNMENTS OF ERROR NUMBERS 3 AND 4
The defendant contends that the trial court erred in imposing a constitutionally-excessive sentence and in denying the motion to reconsider sentence. Specifically, the defendant contends that he is a forty-one-year-old man suffering from drug addiction and depression. While noting that he received a mid-range sentence, he contends that because of his age, a forty-year sentence "is likely a life sentence for him."
The Code of Criminal Procedure sets forth items to be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La. App. 1st Cir. 1988).
Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). However, the trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Latiolais, 563 So.2d 469, 473 (La. App, 1st Cir. 1990).
At the rather brief sentencing hearing, the trial court allowed the defendant to make a statement. Basically, the defendant apologized, noted his drug addiction and depression, and asked for mercy. Before imposing sentence, the trial court found that during the period of a suspended sentence or probation (which in any event was not authorized), there was an undue risk the defendant would commit another crime. The court concluded that a lesser sentence would deprecate the seriousness of the defendant's crime. Finally, the court noted that the defendant had a previous armed robbery conviction.
While the record does not indicate that the trial court ordered a presentence investigation report (PSI), it is well settled that ordering a PSI is discretionary with the trial court. State v. Wimberly, 618 So.2d 908, 914 (La. App. 1st Cir.), writ denied, 624 So.2d 1229 (La. 1993). See La. C. Cr. P. art. 875A(1). Our review of the sentencing transcript indicates that the trial court adequately complied with the Article 894.1 guidelines.
For his armed robbery conviction, the defendant was exposed to a minimum sentence of ten years at hard labor, and a maximum sentence of ninety-nine years at hard labor, without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64B. The defendant received a sentence of forty years at hard labor, with the first twenty years without benefit of parole, probation, or suspension of sentence.
The trial court actually imposed an illegally lenient condition, as the parole restriction should have been for the entire length of the sentence. See La. R.S. 15:301.1 (deeming the entire forty-year sentence to be without parole eligibility).
Considering the circumstances of the instant offense, the defendant's prior armed robbery conviction, and the reasons for sentencing given by the trial court, we conclude that the instant sentence is not excessive. This Court is mindful that on appellate review of a sentence, the relevant question is whether a trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam). Accordingly, the trial court correctly denied the defendant's motion to reconsider sentence.
These assignments of error are meritless.
CONVICTION AND SENTENCE AFFIRMED.