Opinion
NUMBER 2012 KA 1532
03-22-2013
STATE OF LOUISIANA v. RUSSELL T. NORTH
Ricky L. Babin District Attorney Donald D. Candell Assistant District Attorney Gonzales, LA Counsel for Plaintiff/Appellee State of Louisiana Lieu T. Vo Clark Louisiana Appellate Project Mandeville, LA Counsel for Defendant/Appellant Russell T. North
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket Number 28,106
Honorable Thomas J. Kliebert, Jr., Judge Presiding
Ricky L. Babin
District Attorney
Donald D. Candell
Assistant District Attorney
Gonzales, LA
Counsel for
Plaintiff/Appellee
State of Louisiana
Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, LA
Counsel for
Defendant/Appellant
Russell T. North
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GUIDRY , J.
Defendant, Russell North, was charged by bill of information with one count of home invasion, a violation of La. R.S. 14:62.8. He pled not guilty, and after a jury trial, he was found guilty of the responsive offense of unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3. The trial court denied defendant's motion for new trial. The state filed a habitual offender bill of information, alleging defendant to be a fifth-felony habitual offender. Defendant stipulated to all predicate offenses and admitted to being a fifth-felony habitual offender. The trial court sentenced defendant as a fifth-felony habitual offender to twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant subsequently filed a motion to reconsider sentence, but the trial court denied that motion. He now appeals, alleging two assignments of error. For the following reasons, we affirm defendant's conviction and habitual offender adjudication, but we vacate defendant's habitual offender sentence and remand for resentencing.
The alleged predicate convictions were as follows: 1) a November 21, 2005 conviction for aggravated battery under docket number 18762 in Ascension Parish; 2) an October 2, 2007 conviction for simple burglary under docket number 4830 in St. James Parish; 3) an October 2, 2007 conviction for theft over $500.00 under docket number 4830 in St. James Parish; and 4) a September 17, 2007 conviction for felony possession of marijuana under docket number 22138 in Ascension Parish.
FACTS
At around noon on December 13, 2010, Denise Williams and her two daughters, Ariel Williams and Tina Williams, were napping in their trailer home on St. Vincent Street in Donaldsonville. Defendant, who is Denise's nephew, called her name from outside the trailer and then entered the trailer through a window missing a pane. In order to enter the trailer, defendant had to rip off a plastic garbage bag that was covering the incomplete window. Upon entering the trailer, defendant began punching and kicking Ariel. He also took Ariel's cell phone and ripped the house phone out of the wall socket before leaving the trailer.
SUFFICIENCY OF THE EVIDENCE
Defendant briefs the first of his two assignments of error by alleging that the evidence was insufficient to support his conviction for unauthorized entry of an inhabited dwelling. For that reason, defendant asserts in his second assignment of error that the trial court erred in denying his motion for new trial, premised upon the allegation that the verdict was contrary to law and evidence.
The standard of review for the sufficiency of the evidence to uphold a conviction is whether, 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 beyond a reasonable doubt. La. C. Cr. P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
The appellate court will not assess the credibility of witnesses or reweigh the evidence to overturn the determination of guilt by the fact finder. State v. Polkey, 529 So. 2d 474, 476 (La. App. 1st Cir. 1988), writ denied, 536 So. 2d 1233 (La. 1989). As the trier of fact, the jury is free to accept or reject, in whole or in part, the testimony of any witness. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the question is one of the weight of the evidence, not its sufficiency. State v. Young, 99-1264, p. 10 (La. App. 1st Cir. 3/31/00), 764 So. 2d 998, 1006. A determination of the weight to be given evidence is a question of fact for the trier of fact and is not subject to appellate review. State v. Payne, 540 So. 2d 520, 524 (La. App. 1st Cir.), writ denied, 546 So. 2d 169 (La. 1989).
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).
The only question in the instant case is whether defendant's entry into Denise Williams's trailer was authorized. Denise, Ariel, and Tina all testified that at the time he climbed through the window, defendant did not have permission from any of them to enter the trailer.
Defendant's main theory of authorization presented at trial stemmed from the fact that his mother, Denise's sister, was paying rent to Denise to live in the trailer. Defense counsel elicited testimony at trial from Denise, Ariel, and Tina in which all three of these witnesses admitted that defendant occasionally stopped by to see his mother. Denise and Ariel further admitted that the defendant stored some of his belongings in the trailer. Defendant also called two witnesses, Bruce Benjamin and Tony Monroe, who testified that it was their belief from their own personal interactions with defendant that defendant also lived in the trailer. However, neither Benjamin nor Monroe testified that they were witnesses to the actual incident.
However, defendant's mother, Barbara North, was not present in the trailer at the time of the incident.
The task of an appellate court reviewing the sufficiency of the evidence is not to second-guess the credibility choices of the trier of fact beyond sufficiency evaluations under the Jackson standard of review. A victim's or eyewitness's testimony alone is usually sufficient to support a verdict. State v. Davis, 02-1043, p. 3 (La. 6/27/03), 848 So. 2d 557, 559 (per curiam). Furthermore, 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 which raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987).
In the present case, the jurors were fully aware that the defense presented testimony attempting to establish defendant's authorization to enter the trailer. Although defendant did not testify at trial, the defense's claim of authorization was presented through the circumstantial evidence of defendant's storing of some belongings in the trailer, of his mother's rental status, and of testimony from witnesses without direct knowledge of the incident. Under these circumstances, we cannot say that the jury's verdict based on its apparent belief of the testimonies of Denise, Ariel, and Tina appears so irrational that this court would have to intervene to assure due process of law. See Davis, 02-1043 at p. 4, 848 So. 2d at 559; see also State v. Ordodi, 06-0207, pp. 14-15 (La. 11/29/06), 946 So. 2d 654, 662.
A reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder 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, pp. 1-2 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). Accordingly, the evidence is sufficient to support defendant's conviction for unauthorized entry of an inhabited dwelling. These assignments of error are without merit.
REVIEW FOR ERROR
Our review for error is pursuant to La. C. Cr. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. C. Cr. P. art. 920(2).
After a careful review of the record, we have found a sentencing error. The trial court imposed defendant's habitual offender sentence without the benefit of parole when neither the penalty provision of the substantive statute nor the habitual offender law authorized such a restriction on defendant's parole eligibility. See La. R.S. 14:62.3(B) & La. R.S. 15:529.1(A)(4)(a) & (G). Both the minute entry and the transcript indicate that defendant's twenty-year sentence is without the benefit of parole.
Defendant's predicate convictions were for aggravated battery, simple burglary, felony theft (more than $500.00), and felony possession of marijuana.
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The inclusion of the parole restriction rendered this sentence illegal. The sentencing herein involves discretion. Specifically, pursuant to La. R.S. 14:62.3(B) and 15:529.1(A)(4)(a) & (G), the sentencing range is twenty years to life imprisonment at hard labor, without probation or suspension of sentence. To the extent that the amendment of defendant's sentence entails more than a ministerial correction of a sentencing error, a sua sponte correction by a court of appeal is not sanctioned by the jurisprudence. See State v. Haynes, 04-1893 (La. 12/10/04), 889 So. 2d 224 (per curiam). Because of the sentencing discretion involved, we vacate the habitual offender sentence and remand for resentencing.
CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED AND REMANDED FOR RESENTENCING.