Opinion
NO. 2013-KA-1149
04-16-2014
STATE OF LOUISIANA v. DOMINICK V. ALLEN A/K/A "VONTELLE ALLEN"
Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney COUNSEL FOR APPELLEE/STATE OF LOUISIANA Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT, DOMINICK V. ALLEN A/K/A "VONTELLE ALLEN
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 509-953, SECTION "H"
Honorable Camille Buras, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin,
Judge Joy Cossich Lobrano)
BONIN, J., CONCURS WITH REASONS
LOBRANO, J., CONCURS IN THE RESULTS
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
COUNSEL FOR APPELLEE/STATE OF LOUISIANA
Katherine M. Franks
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT, DOMINICK V.
ALLEN A/K/A "VONTELLE ALLEN
CONVICTIONS AND SENTENCES
AFFIRMED
Defendant, Dominick Allen, a/k/a "Vontelle Allen", appeals his conviction on charges of one count of theft of property valued between five hundred dollars ($500.00) and fifteen hundred dollars ($1,500.00) and one count of unauthorized use of a motor vehicle. Finding that the evidence was sufficient to convict and that the trial court did not err in denying defendant's motion to suppress, we affirm the conviction.
STATEMENT OF CASE
On December 21, 2011, the defendant was charged with one count of theft of property valued between $500.00 and $1,500.00 and one count of unauthorized use of a motor vehicle. He pled not guilty. After motion hearings, the trial court denied the defendant's motion to suppress evidence and found probable cause. A jury trial was held on July 30-31, 2012; the defendant was found guilty as charged. Thereafter, the trial court denied the defendant's motions for new trial and for post-verdict judgment of acquittal.
The defendant was also charged with three misdemeanors in the bill of information. In count three, he was charged with possession without authorization of an access device card with the intent to defraud. In counts four and five, he was charged with theft under five hundred dollars. On March 22, 2013, the defendant pled guilty as charged as to all three counts. He was sentenced to six months, OPP, with credit for time served on each count, and the sentences were to be served concurrently.
Subsequent thereto, the State charged the defendant as a multiple offender on count two, the unauthorized use of a motor vehicle charge, based on prior convictions for possession of a stolen automobile and theft of an automobile. The trial court adjudicated the defendant as a second felony offender. Thereafter, the trial court sentenced him to five years at hard labor on count one, the theft charge. The sentence was suspended; he was placed on active probation for five years and ordered to pay restitution to the victim in the amount of $700.00. On count two, the unauthorized use of a motor vehicle charge, the defendant was sentenced as a multiple offender to five years at hard labor. He also was ordered to pay $700.00 in restitution to the victim. The sentence in count one was to be served consecutively with the sentence imposed in count two.
The trial court denied defendant's motion to reconsider sentence and this appeal followed. STATEMENT OF FACT
The following testimony was adduced at trial.
Mayde Martinez, a Harrah's Casino employee, testified that on October 19, 2011, she found that her purse was missing from the employee coat room. She reported the theft to her employer and the police. Ms. Martinez stated that she had paid $40.00 for the purse and $20.00 for her wallet. The purse also contained $189.00 in cash, $40.00 in Harrah's chips, two checks in the amount of $100.00 and $200.00, credit cards, a debit card, an insurance card, food stamps, her Medicaid card, Sam's card, car keys, and driver's license. Ms. Martinez advised that she had to replace her keys and driver's license, which cost $313.00. Ms. Martinez stated that she did not know the defendant and did not give him permission to take her purse.
Lucious Newell, a consumer investigator at Harrah's Casino, reviewed video footage of the area of the theft. The security camera showed the theft of Ms. Martinez's purse by the perpetrator. Mr. Newell identified the surveillance video at trial. The video was played for the jury.
Gloria Esteves testified that on October 25, 2011, she worked at the W Hotel as an employee of Jani King. When she arrived at work, she put her purse on the shelf in the storage and supply room for employees' belongings. Later, she learned that her purse was missing. Because her car keys were in her purse, she checked on her vehicle, a 2005 Buick LaCrosse, which had been parked in the rear receiving area of the W Hotel, adjacent to the Windsor Court. The vehicle was gone. She then promptly reported the incident to hotel security and called the police. Ms. Esteves said she had $27.00 in her purse. She advised that she viewed the surveillance video from the parking lot area. The video showed someone driving her vehicle away. Ms. Esteves could not identify the person taking her car. Ms. Esteves also observed surveillance video from within the W Hotel. The video showed a black male walking down a hallway, looking around and then entering the supply room. Ms. Esteves admitted that she could not identify the subject.
Ms. Esteves was contacted after her vehicle and personal items were recovered at the Midtown Hotel on Tulane Avenue. When she arrived at the Midtown Hotel to retrieve her vehicle, she saw the defendant. He told her that if her car had not been found, the car would have been sent to a chop shop. She testified that she did not give anyone, including the defendant, permission to take her vehicle or use her credit cards. She advised that two nights at the Midtown Hotel were charged to her credit card, for a total of $160.00.
Officer Jeffrey Tyler and Detective Steven Nolan investigated the theft of Ms. Esteves' car. Officer Tyler testified that he spoke with Ms. Esteves and viewed surveillance video of the parking lot. The video depicted a male with a ponytail and wearing a white shirt walking towards the exit of the receiving area where Ms. Esteves' vehicle was parked. The vehicle's headlights activated; the vehicle backed out and headed west bound on Tchoupitolous. Officer Tyler acknowledged that he did not see the male subject get into the vehicle.
Detective Nolan interviewed a co-worker of Ms. Esteves who fit the description and wore clothing similar to the man in the surveillance video. During the interview, the co-worker fainted and was transported to the hospital. The man was released because Detective Nolan had no evidence and found no cause to arrest him. Detective Nolan added that he could not identify the co-worker as the subject he saw in the video.
Officer David Wright responded to a call of a disturbance at the Midtown Hotel concerning the possible use of a stolen credit card. When the officer arrived, the hotel manager told him that the person who used the credit card was still on the premises. Officer Wright and the hotel manager went to the room. The manager knocked on the door. The officer announced himself and asked the occupant of the room to open the door. When the occupant, later identified as the defendant, opened the door, the officer explained that he was investigating the use of a stolen credit card. Officer Wright advised the defendant of his Miranda rights. The officer saw several pieces of identification, along with a red bag, on the bed. He found Ms. Esteves' and Ms. Martinez's driver licenses and saw a set of car keys on the bed. The defendant was placed under arrest for the use of a stolen credit card.
When Officer Wright went to the parking lot to see if there was a stolen vehicle, he discovered that one of the license plate numbers matched the vehicle stolen from Ms. Esteves. He identified the keys and a cell phone as items confiscated from the defendant's hotel room. Officer Wright advised that he viewed the hotel's surveillance video of the parking lot. He observed the defendant drive the stolen vehicle into the parking lot, park the vehicle in the rear of the parking lot, exit the vehicle, and walk to the hotel lobby. No one else was in the vehicle with the defendant. The defendant did not meet anyone in the parking lot. Officer Wright testified that the defendant was the occupant of the hotel room and the person who he saw on the surveillance video.
Corey Wilson, the assistant general manager at the Midtown Hotel, testified that he called the police because he received information that the hotel had a guest who was using a stolen credit card. He identified the defendant as the "guest" in question. Wilson relayed that the defendant presented an authorization form giving him permission to use the credit card. Wilson gave the defendant the key to room 322, a room with an obstructed view of the hallway and no windows, and then called the police. Upon the arrival of the officers, Wilson gave them the authorization form the defendant had provided and accompanied the police to the defendant's room. Wilson said that he knocked on the door, opened the door, and then got out of the way so that the officers could enter the room. He entered the room after the police officers. He observed a bag and numerous credit cards and identification cards on the bed. Wilson verified that the defendant charged one night at the hotel on the credit card for a total of $60.01. Wilson added that the officers and he viewed the hotel's surveillance video. The video showed the defendant getting out of a vehicle in the back parking lot. Wilson was unable to give the officers a copy of the video that night because the video had to be downloaded to a disc. When the officers returned, it was no longer available as the hotel only maintains surveillance video for seven days. ERRORS PATENT
A review of the records for patent errors reveals none. DISCUSSION ASSIGNMENT OF ERROR NUMBER 1
The defendant initially asserted four assignments of error, two of which alleged deficiencies in the record due to the lack of written or transcribed jury instructions and trial exhibits. The defendant subsequently withdrew these assignments regarding the deficiencies in the record.
In this assignment of error, the defendant contends that the State failed to produce sufficient evidence to support the jury's verdicts of theft of property valued between $500.00 and $1,500.00 and unauthorized use of a motor vehicle. The defendant suggests that the State failed to prove his identity as the perpetrator as well as the elements of the offenses.
The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La. 1986). A reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La. 1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. State v. Shaw, 2007-1427, p. 15 (La. App. 4 Cir. 6/18/08), 987 So.2d 398, 408. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. Id. The factfinder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So.2d 1319, 1324 (La.1992).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, but rather an evidentiary guideline to facilitate appellate review of whether a trier of fact could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987). Additionally, our case law holds that it is not the function of an appellate court to evaluate the credibility of the witnesses and to overturn the trial court on its factual determination of guilt. State v. Richardson, 425 So.2d 1228 (La.1983).
In the matter before us, the defendant argues that the State failed to produce sufficient evidence to prove that he was the perpetrator of the theft of Ms. Martinez's purse because no one identified him as the perpetrator. While no witness at trial specifically identified him as the perpetrator, the jury viewed the video surveillance from Harrah's Casino. The video showed the perpetrator of the theft entering and leaving the employee coat room. The jurors may have reasonably determined based on their personal observations of the defendant at trial that he was the person in the surveillance video. Moreover, the defendant was found in possession of Ms. Martinez's identification and credit cards. When we apply Jackson v. Virginia, defendant's possession of the victim's stolen items provided sufficient proof for the jury to conclude that the defendant was the perpetrator of theft.
The defendant also argues that the State failed to prove all the elements of theft of property valued between $500.00 and $1,500.00. In particular, he contends the State did not prove that the value of the victim's property was over $500.00. La. R.S. 14:67(A) defines the offense of "theft" as
the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.Thus, the State's burden in the present matter was to prove beyond a reasonable doubt (1) that the defendant misappropriated or took; (2) a thing of value; (3) that belonged to another; and (4) that the defendant had the intent to deprive the owner permanently of that which was misappropriated or taken, in addition to proving the value of the value of the stolen property. State v. Brooks, 00-106 (La. App. 5 Cir. 9/26/00), 769 So.2d 1242.
When the degree of the crime is based on the value of the stolen property possessed, the testimony of the owner is sufficient to establish the value of the stolen property if it is clear and uncontradicted. State v. Stack, 97-1176 (La. App. 5 Cir. 4/15/98), 710 So.2d 841. The owner does not need to be qualified as an expert in order to testify as to the value of the thing owned by him. State v. Dilworth, 358 So.2d 1254 (La.1978); State v. Ramsdell, 06-644 (La. App. 5 Cir. 12/27/06), 949 So.2d 508. The Supreme Court in State v. Harris, 97-0778, p.2 (La.3/4/98), 708 So.2d 387, 390, held that "the value of a stolen check for purposes of grading the offense under La. R.S. 14:67(B) is its face value, regardless of whether it has been endorsed by the victim." See also State v. Thomas, 99-1985 (La. App. 4 Cir. 1/5/00), 751 So.2d 979.
In the case at bar, Ms. Martinez testified that she paid $40.00 her purse and $20.00 for her wallet. She also testified that the purse also contained $189.00 in cash, $40.00 in casino chips, two checks totaling $300.00, and her house and car keys. The cost of replacing her driver's license, house keys and car keys totaled $313.00. Accordingly, as the owner and the victim, Ms. Martinez's testimony established that the value of the property taken exceeded five hundred dollars.
As it pertains to the unauthorized use of a vehicle charge, the defendant alleges that the State failed to prove that he was in possession of Ms. Esteves' vehicle. This argument is countered by Officer Wright's testimony that the defendant was found in possession of the car keys and that Officer Wright's viewing of the surveillance video from the Midtown Hotel showed that the defendant drove the vehicle into hotel parking lot, parked the vehicle, and exited vehicle. Defendant's argument is also rebutted by Ms. Esteves' testimony that the defendant essentially admitted to her that he had been in possession of the vehicle when he told her that if the vehicle had not been found, it would have been taken to a chop shop.
Positive identification by a witness is sufficient to support a defendant's conviction. State v. Thomas, 589 So.2d 555 (La. App. 1 Cir.1991); State v. Jefferson, 606 So.2d 869 (La. App. 2 Cir. 1992). The weight to be given a witness' testimony is an issue which must be determined by the finder of fact. State v. McZeal, 352 So.2d 592 (La.1977); State v. Johnson, 598 So.2d 1152 (La. App. 1 Cir. 1992). Therefore, it was well within the jury's discretion to accept Officer Wright's testimony and find that the defendant was in possession of Ms. Esteves' vehicle.
Similarly, it was within the jury's discretion to accept the testimony of Ms. Esteves. Ms. Esteves testified that she did not know the defendant and that he did not have her permission to possess and/or use her vehicle. La. R.S. 14:6.4 states that the "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 motor vehicle permanently." Accordingly, Ms. Esteves' testimony was sufficient to convict the defendant of the unauthorized use of a motor vehicle.
Based on the foregoing, defendant's claims that the evidence was insufficient to convict lack merit. ASSIGNMENT OF ERROR NUMBER 2
The defendant also claims that the trial court erred when it denied his motion to suppress evidence. The defendant contends that the officers entered the hotel room without a warrant; and therefore, the search and seizure of items found in the hotel room was illegal. The defendant relies upon the testimony of the Midtown Hotel's assistant manager, Cory Wilson. Mr. Wilson testified at trial that he opened the door for the police officers. On the other hand, the State cites the testimony of Officer Wright that the defendant opened the door when the officer announced himself.
As per La. C.Cr.P. art. 703D, the State has the burden of showing any evidence seized in the absence of a warrant was lawfully seized. See State v. Wells, 2008-2262 (La. 7/6/10), 45 So.3d 577. It is well-settled that an appellate court should afford great weight to a trial court's findings of fact based on the credibility of evidence, but its legal findings are subject to a de novo standard of review. State v. Thompson, 2011-0915 (La. 5/8/12), 93 So.3d 553; State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746. As a general rule, an appellate court may review the testimony at trial in determining the correctness of the trial court's pre-trial ruling on a motion to suppress. State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272; State v. Brooks, 92-3331 (La. 1/17/95), 648 So.2d 366; State v. Martin, 595 So.2d 592, 596 (La. 1992). This review may provide supplemental information relevant to the suppression issue. State v. Sherman, 2004-1019 (La. 10/29/04), 886 So. 2d 1116.
The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. Art. 1, § 5; State v. Francis, 2010-1149, p. 4 (La. App. 4 Cir. 2/16/11), 60 So.3d 703, 708. The constitutional protection provided in the Fourth Amendment also applies to hotel rooms. Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964). The U.S. Supreme Court has recognized that a hotel guest has an expectation of privacy in his hotel room and is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Consent by the hotel proprietor is not sufficient for a search of a guest's hotel room. Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1948); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1957).
However, the court in United States v. Wai-Keung, 845 F. Supp. 1548 (S.D. Fla. 1994), held that a defendant who obtains a hotel room fraudulently does not have a reasonable expectation of privacy in it. In Wai-Keung, the court found that the defendants obtained the hotel rooms fraudulently because they did not have permission to use the credit cards and therefore did not have a reasonable expectation of privacy in the rooms. The court recognized that "[i]mportant considerations in the expectation of privacy equation include ownership, lawful possession or lawful control of the premises searched." Wai-Keung, 845 F. Supp. at 1562, quoting United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991)(citing to Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d (1978)).
Affm'd, 115 F.3d 874 (11th Cir. 1997).
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The Wai-Keung court went on to note that once the hotel found that the rooms were guaranteed with a fraudulent credit card, the hotel had the right to terminate the occupancy of the hotel rooms, and a defendant had no reasonable expectation of privacy with a respect to a hotel room from which he is justifiably ejected. The court stated, "The defendants abandoned any legitimate expectation of privacy the moment they attempted to perpetrate a fraud." Wai-Keung, 845 F. Supp. at 1563. The court relied upon the Ninth Circuit's decision in United States v. Haddad, 558 F.2d 968 (9th Cir. 1977), in which the court stated that a defendant "ha[s] no reasonable expectation of privacy with respect to a room from which he ha[s] been justifiably ejected." Haddad, 558 F.2d at 975.
While no similar cases were found within Louisiana jurisprudence, we find the present case akin to circumstances where a defendant seeks to suppress evidence found in a search of premises not owned or occupied by the defendant. In State v. McKinney, 637 So.2d 1120 (La. App. 4 Cir. 1994), this Court found that the defendant did not have any reasonable expectation of privacy in an upstairs bedroom because the defendant was staying in the house without the owner's permission. Our courts have also held that a defendant retreating into the residence of a third party without that party's permission has no reasonable expectation of privacy in that house. See State v. Walker, 2006-1045 (La. 4/11/07), 953 So. 2d 786; State v. Dowdell, 2011-1221 (La. App. 4 Cir. 8/22/12), 99 So.3d 1015.
In the present case, the defendant contends that he had a lawful expectation of privacy in his hotel room and that the assistant manager improperly consented to the search when he used a pass key to open the door; while the State urges that the Officer Wright's testimony showed that he announced himself and that the defendant voluntarily opened the door which allowed Officer Wright to see the numerous identifications and credit cards on the bed. However, this conflict in testimony is not relevant in deciding whether the officers illegally entered the defendant's hotel room. The evidence supports that the defendant paid for the room through the fraudulent use of Ms. Esteves' credit card. Therefore, he had no reasonable expectation of privacy in the hotel room; and accordingly, the trial court did not err in denying his motion to suppress. CONCLUSION
Wherefore, based on the foregoing reasons, defendants' convictions and sentences are affirmed.