STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-201
STATE OF LOUISIANA
VERSUS
JOSEPH DEWAYNE BROWN
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 357,554 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS. Edward K. Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, LA 70602-1641 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: Joseph Dewayne Brown
Honorable J. Phillip Terrell, Jr. District Attorney, Ninth Judicial District B. Gerald Weeks Assistant District Attorney Post Office Box 7358 Alexandria, LA 71306-7358 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana PERRET, Judge.
Defendant, Joseph Dewayne Brown, appeals his convictions and sentences for
simple burglaries and theft of a firearm. For the reasons that follow, we affirm his
convictions but vacate his sentences due to an error patent noted herein. We remand
the matter to the trial court with the following instructions: (1) for the trial court to
specify whether the sentences on each count are to be served with or without hard
labor; and (2) for the trial court to inform the Defendant of the provisions of La.Code
Crim.P. art. 930.8, the time period for filing post-conviction relief, at resentencing.
PROCEDURAL HISTORY:
On March 1, 2023, Defendant was charged by bill of information with one
count of possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1;
one count of illegal possession of stolen things valued at more than $25,000.00, in
violation of La.R.S. 14:69(B)(1); and three counts of simple burglary, in violation
of La.R.S. 14:62. On March 13, 2023, Defendant pled not guilty to all charges.
On June 30, 2023, Defendant filed a motion to waive a trial by jury, which the
trial court granted on July 10, 2023. On November 3, 2023, the State amended the
bill of information to add one count of theft of a firearm, in violation of La.R.S.
14:67.15.
On November 8, 2023, a bench trial commenced. After the presentation of
evidence, the defense moved for a directed verdict regarding count one, possession
of a firearm by a convicted felon, which the trial court granted. Thereafter,
Defendant was found guilty, as charged, to three counts of simple burglary, theft of
a firearm, and found guilty of the lesser offense of illegal possession of stolen things
valued at “$1000.00” or more but less than “$5000.00”. On November 20, 2023, Defendant filed a motion for new trial, which the trial court denied on December 7,
2023.
The trial court sentenced Defendant to twelve years for each count of simple
burglary, five years for illegal possession of stolen things, and three years for theft
of a firearm. The trial court ordered the sentences for simple burglary to run
concurrently with one another, the sentence for possession of stolen things to run
consecutively to the sentences for simple burglary, and the sentence for theft of a
firearm to run consecutively to all other sentences.
Defendant now appeals his convictions for theft of a firearm and simple
burglary, arguing that there was insufficient evidence to find him guilty of those
crimes beyond a reasonable doubt. Defendant is not appealing his conviction for
illegal possession of stolen goods.
FACTS:
During the evening of October 23, 2022, or the early morning hours of
October 24, 2022, three vehicles were burglarized at Mason Estates, an apartment
complex in Alexandria, Louisiana. The owners subsequently notified law
enforcement and an investigation ensued.
At trial, the State called each vehicle owner: Nicholas Pulver, Alaysia
(Fleming) Daniels, and Makayla Liberatore. Mr. Pulver testified that on October 24,
2022, at around 6 a.m., he was about to head to work when he noticed his truck’s
driver’s side window was broken. After searching his vehicle, Mr. Pulver
discovered that his Colt 1911 .45 ACP pistol was gone. Mr. Pulver testified that at
the time his pistol was stolen, it had seven rounds in the magazine and one round in
the chamber. Mr. Pulver described the rounds as “nonexpanding bullet[s]” with a
“crisscross corkscrew pattern,” which are “designed to penetrate dense clothing
2 without penetrating through a person.” According to Mr. Pulver, the ammunition
was unique and unavailable to purchase in Louisiana and that he acquired the
ammunition while he was living in Boise, Idaho. Mr. Pulver testified that his pistol
was never recovered. Mr. Pulver further explained that he never gave anyone
permission to go inside his truck or take his firearm. Mr. Pulver testified that the
last time he saw his truck before the incident was around 3 p.m. on October 23, 2022.
Alaysia (Fleming) Daniels testified that on October 24, 2022, at around 9 a.m.,
she went outside and saw that her vehicle’s passenger’s side window was broken
and that her Maylea handbag had been taken. According to Ms. Daniels, her wallet
was inside of the bag, which contained her debit card, credit card, social security
card, insurance card, and identification card. After her wallet went missing, Ms.
Daniels discovered that there was an unauthorized seventy-dollar charge on her
Chase account. According to Ms. Daniels, her Maylea bag and wallet were never
recovered. Ms. Daniels stated that she did not give anyone permission to go inside
her vehicle or take her belongings. Ms. Daniels further noted that the last time she
saw her vehicle before the break-in was around 10 p.m. on October 23, 2022.
Makayla Liberatore testified that on October 24, 2022, at approximately 7
a.m., she was about to drop her children off to daycare when she noticed her vehicle
had been burglarized. According to Ms. Liberatore, her passenger window was
gone, her glove compartment was left open, and her bags had been rummaged
through. Ms. Liberator testified that her Louis Vuitton purse, Louis Vuitton wallet,
a pistol, debit cards, medication, and her children’s social security cards were
missing. Ms. Liberatore further testified that she received notifications that morning
from her bank, Red River Bank, of three attempts to swipe her cards. Ms. Liberatore
3 subsequently reported her cards stolen. According to Ms. Liberatore, the last time
she saw her car before the incident was around 7 p.m. on October 23, 2022.
Carrie Roy, the security officer for Red River Bank in Alexandria, Louisiana,
testified that on October 24, 2022, customer Makayla Liberatore reported her debit
card stolen. Thereafter, the bank tracked Ms. Liberatore’s debit card history, which
indicated someone attempted to use her card at an ATM machine located at the
bank’s North Mall location at around 4 a.m. on October 24, 2022. Fortunately, no
funds were withdrawn from Ms. Liberatore’s account due to the insertion of the
incorrect PIN number. The bank subsequently recovered the surveillance footage
from the ATM machine and submitted it to the Alexandria Police Department.
Detective Meade Palmer, with the Alexandria Police Department, testified
that he was assigned to investigate the multiple vehicle burglaries that occurred at
Mason Estates on October 24, 2022. According to Detective Palmer, various items
were taken, including handbags, wallets, guns, and debit cards. Detective Palmer
testified that he reviewed the surveillance footage submitted by Red River Bank and
immediately identified the individual in the video as Defendant Joseph Brown.
According to Detective Palmer, Defendant owned a vehicle like the one seen in the
ATM camera footage, a Dodge Challenger with red stripes.
Detective Palmer subsequently obtained a search warrant and, following a
search of Defendant’s home and vehicles, found most of the missing items, including
Ms. Daniel’s Maylea handbag, Ms. Liberatore’s prescription medication, debit card,
and children’s social security cards, and a tool used to break glass. According to
Detective Palmer, he also discovered a magazine full of bullets, which matched Mr.
Pulver’s gun; however, the actual gun was never recovered.
4 ERRORS PATENT:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there are
several errors patent.
First, we note that a “Motion to Waive Trial by Jury” was filed by Defendant’s
counsel. The motion stated that Defendant intended to waive a jury trial and
requested a hearing to determine whether he would be allowed to do so. The motion
was not signed by Defendant. According to a minute entry dated July 10, 2023,
Defendant was present in open court with his counsel when the trial court questioned
him about the waiver. The trial court concluded that Defendant knowingly and
intelligently waived his right to jury trial. Louisiana Code of Criminal Procedure
Article 780(B) requires a motion to waive jury trial be written and signed by
Defendant and his attorney, if represented. Although the written motion was not
signed by Defendant, we find this error harmless since Defendant and his attorney
were in open court when the trial judge addressed his right to a jury trial and the
waiver thereof. See State v. Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830.
Second, we find that the sentences imposed are indeterminate. Although the
court minutes state that each sentence was imposed at hard labor, the sentencing
transcript does not so indicate. In the event of a conflict, the sentencing transcript
prevails. State v. Williams, 15-498 (La.App. 3 Cir. 12/9/15), 181 So.3d 857, writ
denied, 16-26 (La. 1/13/17), 215 So.3d 242. No mention of hard labor was made at
sentencing. The only time the sentencing transcript mentions the “Department of
Corrections” is when the trial court states that he was “going to ask that the
Department of Corrections place [Defendant] in a re-entry program so that [he could]
5 have a chance of getting a new shape in life.”1 Because we find this statement is not
a determinate statement that all sentences are to be served at hard labor, and because
the penalty provisions applicable to Defendant all provide for the sentences to be
imposed with or without hard labor, we find this failure to indicate whether the
sentences were to be served with or without hard labor renders the sentences
indeterminate. La.R.S. 14:62, La.R.S. 14:69(B)(3),2 and La.R.S. 14:67.15(C)(1).
See State v. Ervin, 17-18 (La.App. 3 Cir. 12/13/17), 258 So.3d 677. Accordingly,
we hereby vacate the Defendant’s sentences and remand the case for the trial court
to specify whether the sentences are to be served with or without hard labor.
Finally, as noted by appellant’s counsel, the trial court failed to advise
Defendant of the time period for filing post-conviction relief. Louisiana Code of
Criminal Procedure Article 930.8 requires for the trial court to inform a defendant at
sentencing that he has two years “‘after the conviction and sentence become final’”
to seek post-conviction relief. State v. Green, 21-14, p. 4 (La.App. 3 Cir. 10/27/21),
329 So.3d 917, 921. Accordingly, the trial court is instructed to inform Defendant
of the provisions of article 930.8 at resentencing.
DISCUSSION:
In his first and second assignments of error, Defendant argues that the
evidence, when viewed in the light most favorable to the prosecution, was
insufficient to find him guilty of theft of a firearm and simple burglary beyond a
reasonable doubt.
1 The jurisprudence states that “committing a prisoner to the Department of Corrections is necessarily at hard labor.” State v. Lisenby, 534 So.2d 996, 998 (La.App. 3 Cir. 1988); La.R.S. 15:824(C)(1). 2 On count two, Defendant was convicted of the responsive offense of illegal possession of stolen things valued at $1,000.00 or more but less than $5,000.00.
6 Standard of Review
The analysis for insufficient-evidence claims is well settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
The testimony of a single witness, if believed, and absent internal
contradictions or irreconcilable conflicts with physical evidence, is sufficient to
support a conviction. State v. Pierre, 14-1071 (La.App. 3 Cir. 5/6/15), 170 So.3d
348, writ denied, 15-1151 (La. 5/13/16), 191 So.3d 1054.
This court has stated the following regarding appellate review in cases relying
on circumstantial evidence:
When the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that the state “must exclude every reasonable hypothesis of innocence” in order to convict. State v. Camp, 446 So.2d 1207, 1209 (La.1984). “Circumstantial evidence consists of proof of collateral facts and circumstances from which elemental factors may be inferred according to reason, experience and common sense.” State v. Burns, 441 So.2d 843, 845 (La.App. 3 Cir.1983). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror’s reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence. On appeal, the issue is whether a rational trier of fact, when viewing the evidence in a light most favorable to the prosecution, could find that all reasonable hypotheses of innocence were excluded. State v. Williams,
7 13-497 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024.
State v. Baumberger, 15-1056, pp. 10−11 (La.App. 3 Cir. 6/1/16), 200 So.3d 817,
826−27, writ denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, 583 U.S.
950, 138 S.Ct. 392, 199 L.Ed.2d 290 (2017).
Theft of a Firearm
Louisiana Revised Statutes 14:67.15(A) defines theft of a firearm as “the
misappropriation or taking of a firearm 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.” The offender must also intend to
permanently deprive the owner of the firearm. Id.
Defendant contends the trial court erred in that the evidence, when viewed in
the light most favorable to the prosecution, was insufficient to find Defendant guilty
of theft of a firearm beyond a reasonable doubt. Defendant argues that for the trial
court to find sufficient evidence of theft of a firearm, the court would not have the
benefit of presumption provided by La.R.S. 15:432, which provides that a person in
the unexplained possession of property recently stolen is presumed to be the thief.3
According to Defendant, he was in possession of the bullets and a fully loaded
magazine but not the firearms. Defendant also asserts that there was no evidence
submitted that placed him near the crime scene. Therefore, Defendant contends that
there was insufficient evidence to convict him of theft of a firearm beyond a
3 A citation to La.R.S 15:432 is not in the trial record. Further, the supreme court has held the statutory presumption violated due process; however, we note that possession of recently stolen items can support an inference that the possessor is the burglar. State v. Searle, 339 So.2d 1194 (La. 1976) (on rehearing); State in the Interest of D.W., 22-1654 (La. 10/20/23), 371 So.3d 1065.
8 Contrarily, the State argues that Defendant’s possession of the unique
ammunition was sufficient evidence for any trier of fact to conclude that Defendant
committed theft of a firearm. According to the State, there was no evidence
presented at trial that someone other than Defendant committed the theft even though
the firearm itself was never recovered.
After viewing the evidence in a light most favorable to the prosecution, we
find the evidence admitted at trial proved beyond a reasonable doubt that Defendant
committed theft of a firearm. Although no weapons were recovered, testimony
adduced showed that the ammunition found in Defendant’s possession matched the
ammunition used for Mr. Pulver’s gun. Moreover, both Mr. Pulver and Detective
Palmer testified that the ammunition was unusual. Mr. Pulver stated it was designed
to penetrate heavy clothing of the type worn in his former home, Idaho. The police
found the magazine inside Ms. Liberatore’s stolen purse. Further, Defendant was
also in possession of items stemming from the burglaries that occurred within the
same night and at the same apartment complex, which supports an inference. Based
on this evidence, we find that the trial judge could rationally have concluded that the
bullets and magazine at issue came from Mr. Pulver’s unrecovered weapon. As
noted by the first circuit, “the elements of theft of a firearm do not require the stolen
firearm be found on the person.” State in Interest of C.J., 20-926, p. 5 (La.App. 1
Cir. 4/26/21) (unpublished opinion). 4 Moreover, we note that “[i]t is not the
province of the reviewing court to assess the credibility of witnesses or reweigh
evidence.” State v. Crawford, 14-2153, p. 20 (La. 11/16/16), 218 So.3d 13, 26
(citing State v. Smith, 94-3116, p. 2 (La. 10/16/95), 661 So.2d 442, 443).
4 2021 WL 1621901.
9 Additionally, Defendant argues that there is no evidence that placed him at
the scene of the offenses. Ms. Daniels testified that her vehicle was undamaged at
10:00 p.m. on October 23, 2022. The timestamp on the ATM video indicated that
at 4:20 a.m., on October 24, 2022, Defendant tried to use a bank card stolen from
the same apartment complex where the gun was stolen. We find that Defendant’s
possession of an item stolen from the crime scene within less than six and a half
hours of the last sighting of an undamaged car indicates Defendant was at the scene.
This inference is also supported by the fact that a glass-breaking tool was found in
Defendant’s possession along with the stolen items from the victim’s vehicles,
including Ms. Daniel’s Maylea handbag, Ms. Liberatore’s prescription medication,
a debit card, social security cards, and a magazine full of bullets, which matched Mr.
Pulver’s gun. Accordingly, we find the trial court did not err in finding Defendant
guilty of theft of a firearm.
Simple Burglary
“Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein[.]” La.R.S. 14:62(A). “Mere possession of property recently stolen in a burglary does not create a presumption that the defendant committed the offense.” State v. Ewens, 98-1096, p. 5 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 93, writ denied, 99-1218 (La. 10/8/99), 750 So.2d 179 (citing State v. Brown, 445 So.2d 422 (La.1984)). “Although the intent to commit a burglary is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances . . . Displacement of the victim’s possessions may be indicative of the specific intent to commit a theft.” State v. Wilson, 44,586, 44,737, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, 215, (citations omitted) writ denied, 09-2655 (La. 1/28/11), 56 So.3d 973.
State v. Shelvin, 15-544, p. 3 (La.App. 3 Cir. 12/9/15), 181 So.3d 879, 881 (alteration in original).
Defendant argues the trial court erred in that the evidence, when viewed in the
light most favorable to the prosecution, was insufficient to find him guilty of three
10 counts of simple burglary beyond a reasonable doubt. According to Defendant, he
possessed some but not all of the items allegedly stolen from Ms. Liberatore, Ms.
Daniels, and Mr. Pulver. As in the previous assignment of error, Defendant asserts
no testimonial, video, or physical evidence placed him at the scene. Furthermore,
Defendant contends the stolen items he possessed were acquired by another
individual who committed the theft. 5 Thus, Defendant argues the evidence was
insufficient to find him guilty of three counts of simple burglary beyond a reasonable
doubt.
In contrast, the State argues there was sufficient evidence to find Defendant
guilty of simple burglary. According to the State, video evidence showed Defendant
attempting to use one of the victim’s debit cards at an ATM machine around the time
of the burglaries. Although there was no evidence that placed Defendant at the scene
of the burglaries, the State contends Defendant’s possession of the stolen items was
enough for any rational trier of fact to conclude that Defendant committed the
burglaries.
In State v. Harrell, 11-887 (La.App. 3 Cir. 2/1/12) (unpublished opinion),6
writ denied, 12-537 (La. 10/12/12), 99 So.3d 37, two vehicles were burglarized in
the same neighborhood on March 25, 2010, between the hours of 8:00 and 10:00
p.m. The defendant was found in possession of one of the victim’s belongings two
hours after the burglaries. Thereafter, the defendant was charged and convicted of
two counts of simple burglary of a motor vehicle. The defendant subsequently
appealed his convictions, arguing that the State failed to present sufficient evidence
5 Defendant again refers to the statutory presumption contained in La.R.S. 15:432, but as mentioned in a previous footnote, said presumption is no longer extant, pursuant to supreme court jurisprudence. Also, we have not found a reference to this statute in the trial record. 6 2012 WL 280658.
11 at trial to support his convictions. To support his argument, the defendant asserted
that no witnesses testified that they saw him break into the vehicles or that the camera
that he had in his possession belonged to one of the victims. In affirming the
defendant’s conviction, this court stated:
“Simple burglary is the unauthorized entering of any . . . vehicle, . . . with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.” La.R.S. 14:62(A). “Theft is the . . . taking of anything of value which belongs to another, . . . without the consent of the other to the . . . taking, . . . An intent to deprive the other permanently of whatever may be the subject of the . . . taking is essential.” La.R.S. 14:67(A).
The evidence presented at trial shows that Mrs. Flynn and Ms. Haworth’s vehicles were entered into without their permission on March 25, 2010. The person who entered their vehicles without permission took some of their belongings without their permission. The belongings consisted of items of value, which included purses, money, and a digital camera. Defendant was seen in the neighborhood around the time of the burglaries and found to be in possession of the items taken during the burglaries within a short time frame after the burglaries were discovered.
In factually similar cases, the courts of this state have found that where a suspect is found in possession of stolen goods, it is sufficient to sustain a simple burglary conviction. State v. Tassin 08-367 (La.App. 3 Cir. 11/5/08), 997 So.2d 750; State v. Jacobs, 558 So.2d 1220 (La.App. 1 Cir.), writ denied, 564 So.2d 319 (La.1990).
When the evidence presented at the trial herein is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of both simple burglary charges proven beyond a reasonable doubt.
Id. at 5.
In State v. Bychurch, 14-718 (La.App. 5 Cir. 8/28/24), 148 So.3d 664, writ
denied, 14-2028 (La. 5/1/15), 169 So.3d 370, the victim’s storage unit was
burglarized between December 25, 2012, and January 1, 2013. When the victim
retrieved the storage unit’s camera footage, it showed someone with a truck walking
to the victim’s storage unit and opening the storage unit’s lock. The person was also
12 seen loading the items from the victim’s storage unit onto a trailer attached to the
truck, including a customized ATV. The victim filed a report and, about a month
later, a deputy stopped an ATV that resembled the one reported missing. The
defendant, who was driving the ATV, claimed he purchased the ATV from someone
but could not show proof of ownership, so the deputy called the victim to the scene.
There, the victim was able to verify that he owned the ATV by showing the deputy
pictures of the customizations and the location of the VIN number. The defendant
was subsequently arrested. While in custody, the defendant gave the officers written
permission to search his residence. During the search, the officers found several of
the victim’s items. The officers also located a trailer that resembled the trailer shown
in the storage unit’s surveillance video. The defendant was subsequently charged
and convicted of simple burglary. On appeal, he argued that there was insufficient
evidence presented at trial to convict him of simple burglary, as the conviction was
based on circumstantial evidence. In affirming the defendant’s conviction, the fifth
circuit stated:
In the present case, defendant was convicted of simple burglary. That offense is defined in LSA-R.S. 14:62 as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein . . .” Specific intent is required for a conviction for simple burglary, and it may be inferred from the circumstances and actions of the accused. State v. Austin, 12-629 (La.App. 5 Cir. 3/13/13), 113 So.3d 306, 312, writ denied, 13-0673 (La.10/25/13), 124 So.3d 1092. Specific criminal intent is defined as “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.” LSA-R.S. 14:10(1).
Therefore, to convict the defendant, the State was required to prove beyond a reasonable doubt that defendant entered the structure without authorization and had the specific intent to commit a felony or theft therein. State v. Naquin, [10-474 (La.App. 5 Cir. 2/15/11),] 61 So.3d [67, 72].
13 In the present case, Mr. Tingle testified that when he went to his storage unit to retrieve an item, he immediately noticed that the lock on the unit was not his. Mr. Tingle had the lock removed and, upon opening the door, saw that numerous items had been taken, including an ATV, a motorcycle, a pressure washer, a generator, a torch kit, and some hand tools. Surveillance cameras around the storage unit showed a truck and a white enclosed trailer pull up to Mr. Tingle’s unit. The person driving the truck got out and immediately lowered the ramps from his trailer. The perpetrator rolled the ATV into the trailer and then loaded numerous other items into the trailer, including a motorcycle. At trial, Mr. Tingle testified this person must have known that his unit contained a motorcycle and an ATV, both of which would need a ramp to load them into the trailer. Mr. Tingle further testified that he did not give anyone permission to enter his storage unit or remove any items. Defendant was subsequently found in possession of the missing ATV and several other items taken from Mr. Tingle’s storage unit.
Moreover, when the police officers went to search defendant’s house pursuant to his consent, they observed a white trailer in his yard that matched the white trailer shown in the video from the storage unit. In particular, both defendant’s trailer and the trailer seen in the video were missing a fender on the driver’s side. Also, stickers on the trailer shown in the video matched the stickers defendant had on his trailer. Further, defendant’s truck, an F-150, matched the truck shown on the video from the surveillance unit. Defendant’s truck showed custom made rims, deflectors, shades, and tinted windows. The truck in the video had the same after-market additions.
....
After viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found, beyond a reasonable doubt, that the evidence was sufficient to support defendant’s conviction for simple burglary. Accordingly, we find the arguments raised by defendant in this assigned error to be without merit.
Id. at 669–70.
Similarly, after viewing the evidence in a light most favorable to the
prosecution in this case, we find the evidence admitted at trial proved beyond a
reasonable doubt that Defendant committed the simple burglaries. As in Harrell and
Bychurch, Defendant was found in possession of most of the stolen items.
Additionally, Defendant was caught on camera attempting to use one of the victim’s
14 debit cards at an ATM machine around 4 a.m. on the day of the burglaries. Although
Defendant argues someone else committed the theft and he merely possessed the
items, it was reasonable for the trier of fact to conclude that Defendant committed
the burglaries since he was found in possession of the missing items along with a
glass breaking tool within two days of the burglaries. The possession of burglary
tools coupled with the presence of another’s possessions demonstrates a defendant’s
specific intent to commit a theft. See State v. Wilson, 44,586 (La.App. 2 Cir.
10/28/09), 26 So.3d 210, writ denied, 09-2655 (La. 1/28/11), 56 So.3d 973; State v.
Martin, 07-791 (La.App. 4 Cir. 10/17/07), 970 So.2d 9. Accordingly, we find that
the trial court did not err in finding Defendant guilty of three counts of simple
burglary.
For these reasons, we hereby affirm Defendant’s convictions. However, we
vacate Defendant’s sentences and remand for resentencing for the trial court to
specify whether the sentences on each count are to be served with or without hard
labor. We also instruct the trial court to inform the Defendant of the provisions of
La.Code Crim.P. art. 930.8 at resentencing.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.