State of Louisiana Versus Raymond H Kimble III

• Court: Louisiana Court of Appeal
• Decided: May 8, 2024
• Docket: 22-KA-373
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 22-KA-373

VERSUS FIFTH CIRCUIT

RAYMOND H KIMBLE III COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-3781, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

May 08, 2024

TIMOTHY S. MARCEL JUDGE

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Timothy S. Marcel

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS FIVE AND TEN AMENDED; REMAINING SENTENCES AFFIRMED; REMANDED TSM JGG MEJ COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Monique D. Nolan Thomas J. Butler Lindsay L. Truhe

COUNSEL FOR DEFENDANT/APPELLANT, RAYMOND H KIMBLE III Raymond H. Kimble, III Lieu T. Vo Clark MARCEL, J.

Defendant, Raymond H. Kimble, III, appeals his convictions and sentences

for eight counts of simple burglary of an inhabited dwelling in violation of La.

R.S. 14:62.2, theft valued between five thousand dollars and twenty-five thousand

dollars in violation of La. R.S.14:67, and aggravated flight from an officer in

violation of La R.S. 14:108.1(C). On appeal, he argues two counseled

assignments of error and six pro se assignments of error.

For the following reasons, we find that defendant’s assignments of error are

without merit. Accordingly, we affirm his convictions and sentences, except,

however, as explained below, we amend defendant’s sentences as to counts five

and ten, and remand the matter to the trial court for corrections of errors patent.

PROCEDURAL HISTORY

Defendant was charged by bill of information on November 24, 2020.1 In

that superseding bill, defendant was charged with eight counts of simple burglary

of an inhabited dwelling in violation of La. R.S. 14:62.2 (counts one through four

and six through nine), one count of theft valued between five thousand dollars and

twenty-five thousand dollars in violation of La. R.S. 14:67 (count five), and one

count of aggravated flight from an officer in violation of La. R.S. 14:108.1(C)

(count ten).

On December 17, 2021, the twelve-person jury found defendant guilty as

charged on all counts. Defendant timely filed a Motion and Incorporated

1 On June 14, 2016, the Jefferson Parish District Attorney filed an original bill of information charging defendant, Raymond H. Kimble III, with eight counts of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 (counts one through eight), aggravated flight from an officer in violation of La. R.S. 14:108.1(C) (count eleven), and theft valued between five thousand dollars and twenty-five thousand dollars in violation of La. R.S. 14:67 (count twelve). In that same bill, Brian D. Ernst was charged in counts one through ten and count twelve. Count eleven also charged Lauren E. Malbrough with aggravated flight from an officer. The superseding bill includes handwritten notations. As to count five, the date was amended, the count was altered to reflect that defendant was charged with the theft of a “Hyundai Tuscon,” rather than the theft of jewelry, and “and/or Katie Dolese” was added as a victim. Also, as to count nine, the address of the residence was amended.

22-KA-373 1 Memorandum for New Trial and a Motion for Post-Verdict Judgment of Acquittal.

The trial court denied both motions.

At the sentencing hearing held on February 7, 2022, defendant was

sentenced to six years imprisonment for each the eight counts of burglary, eight

years imprisonment for theft, and five years imprisonment for aggravated flight

from an officer. Each sentence was imposed at hard labor. The first year of the

sentences imposed for burglary and theft were ordered to be served without the

benefit of parole, probation, or suspension of sentence. The sentences for burglary

and theft were ordered to be served consecutively, with the sentence for aggravated

flight to run concurrently with the other counts.

That same day, the State filed a multiple offender bill of information.

Defendant stipulated to being a fourth-felony offender as to count ten, aggravated

flight from an officer. The judge vacated the original five-year sentence for that

crime and imposed a sentence of twenty years imprisonment at hard labor without

the benefit of parole, probation, or suspension of sentence. The enhanced sentence

for count ten was ordered to run consecutively with counts one through four and

six through nine and concurrently with the sentence imposed for count five,

making defendant’s total sentence sixty-eight years.

Defendant filed a counseled Motion for Reconsideration of Sentence on

February 7, 2022 and a pro se Motion to Note Formal Objection on February 11,

2022. In the latter pleading, defendant asked that the judge note his objection to

the sentence imposed as being excessive and to the multiple bill filed by the State.

The trial judge denied the counseled motion to reconsider sentence. Defendant

timely filed a counseled Motion for Appeal, which was granted on February 16,

2022. Nearly one year after his conviction, defendant filed a pro se Motion for

New Trial with supporting memorandum on December 9, 2022. Therein,

22-KA-373 2 defendant sought a new trial on grounds that new and material evidence existed,

and that the State withheld exculpatory impeachment evidence. On December 13,

2022, this Court remanded the matter to the trial court for consideration of the

motion for new trial. On February 15, 2023, the trial judge denied the motion for

new trial. Thereafter, defendant filed a pro se Rebuttal to State’s Opposition to

Motion for New Trial and Supplemental Motion for New Trial in Accord with

La.C.Cr.P. art. 856 on March 3, 2023. A pro se Notice of Appeal and Formal

Objection dated March 5, 2023, appears in the record. In it, defendant sought to

appeal the February “16,” 2023, denial of his motion for new trial and to have the

court note his objection to that ruling.2 On March 13, 2023, the trial judge granted

the motion to appeal.

On appeal, defendant’s counseled brief asserts that the sentences imposed

are unconstitutional and that the judge erred in denying the motion to reconsider

sentence. In the pro se appellant brief, defendant argues that the evidence was

insufficient to support the jury’s guilty verdicts, that the judge erred in admitting

other crimes evidence, and that the trial transcripts are incomplete. Additionally,

defendant contends that he had ineffective assistance of counsel, that his right to

present a defense was denied by exclusion of certain evidence, and that the State

suppressed exculpatory and impeachment evidence.

FACTS

In the spring of 2016, eight homes in Metairie, Louisiana were burglarized

over three separate days in March and April (2016 Metairie burglaries).

Additionally, a car belonging to the daughter of a burglary victim was stolen from

outside her residence. Defendant was arrested for the burglaries and theft. He was

also charged with aggravated flight from an officer based on the events preceding

2 The trial court actually denied the motion for new trial on February 15, 2023.

22-KA-373 3 his arrest. Also arrested for these crimes was Brian Ernst (Ernst). During this

time, defendant lived with his girlfriend, Lauren Malbrough (Malbrough), who is

Ernst’s sister. Evidence was presented at trial that in 2016, defendant and Ernst

were involved in burglaries of homes in East Baton Rouge Parish (Baton Rouge

burglaries). Further, evidence was presented at trial that defendant was involved in

other Metairie home burglaries occurring in 2015 (2015 Metairie burglaries) and a

2015 Mandeville home burglary (Mandeville burglary) with an individual named

Dustin Johnson.

408 Dorrington Boulevard

Julie Martin resided at 408 Dorrington Boulevard on March 7, 2016. On

that day, Martin was out running errands when she received a call reporting that

her home had been broken into. Her housekeeper was in her home at the time.

Also, during this time, Kevin Cole was en route to Ms. Martin’s home to perform

plumbing service. Cole observed a truck speeding out of Ms. Martin’s driveway as

he approached the residence. Entering through the front door, Cole observed

broken glass near the back door of the residence. When Ms. Martin returned

home, she too observed the broken glass and noted the back door was slightly ajar.

No items were taken from her home.

1044 Aurora Avenue

On March 9, 2016, William Vinet returned to his residence at 1044 Aurora

Avenue around 2:40 p.m. Upon entering his home, he noticed that “everything

was scattered about” and that his pet dog was “going crazy.” He found every room

in his house ransacked, with broken glass all over, a mattress in the den and all of

the lights in the house on. Items taken from the home included documents, a digital

storage device, family heirlooms, jewelry, firearms, and ammunition.

22-KA-373 4 1417 Beverly Garden Drive

That same day, Kevin Bird, accompanied by friends, returned home to 1417

Beverly Garden Drive after school. His mother, Lynne Bird, was out of town.

When Bird opened the front door of his home, he “saw that something was off.”

He went to his parents’ bedroom because the light was on, and he observed the

room had been ransacked. His friends observed that the back door glass was

shattered and pieces of broken glass were everywhere. Lynne Bird testified that

“fifty years’ worth of jewelry” and more than one television were taken from her

home.

1449 Poinsetta Drive

On April 13, 2016, Maureen Dolese was informed by her daughter,

Katherine, that her home at 1449 Poinsetta Drive had been broken into. When she

returned home, she discovered one of her entry doors was broken and glass was on

the floor. She also found that her bedroom and bathroom had been ransacked. All

of her jewelry and all of her extra sets of keys, including her house keys and a key

to her daughter Katherine’s 2011 Hyundai Tucson car had been taken. Ms. Dolese

subsequently changed the locks to her home. The morning after the burglary,

Katherine’s car was missing.

3329 Metairie Heights

Robert Whitaker returned to his home at 3329 Metairie Heights Avenue

between 12:30 p.m. and 1:00 p.m. on the same day. Entering through a back yard

gate, he walked toward his back patio, where he observed the glass in exterior

French doors leading into the house was smashed. Inside the home, he found his

bedroom ransacked and observed that prescription medications and his wife’s

jewelry were missing.

22-KA-373 5 937 Elmeer Drive

Also on April 13, 2016, Dean Pigeon returned home to 937 Elmeer Drive

around 1:15 p.m. Entering through the front door, he found broken glass from the

back door “all over.” He described his bedroom and bathroom as “completely

destroyed.” Items removed from the Pigeon home included a computer, jewelry,

and prescription medications.

3708 Ridgeway Drive

Later that same afternoon, Henry George returned home to 3708 Ridgeway

Drive around 5:00 p.m. After entering his residence from the back yard, he noticed

broken glass from a French entry door. He found the living room, home office,

and bedrooms ransacked. According to Mr. George, items missing were computer

equipment, gaming consoles, jewelry, and a fifty-five-inch television.

4604 Marseille Street

Finally, on that same day, Caroline Bartolotta returned home to 4604

Marseilles Street after work. Inside her home, she observed the screen door was

ajar, the back door glass was broken, and her master bedroom had been ransacked.

Theft: 2011 Hyundai Tucson

On the day after her mother’s house was burglarized, Katherine Dolese,

discovered her 2011 Hyundai Tucson was missing from her residence at 1457

Poinsetta Drive. Keys to the car were stolen from Maureen Dolese’s home on

April 13, 2016. The car was located and returned four days later. Video

surveillance recordings from the area depicted two people tossing items from the

car, then fleeing. When the car was returned by law enforcement, Katherine

observed the license plate was bent.

22-KA-373 6 The Investigation

Detective Darrin Parent and Sergeant David DeRoche, with the Jefferson

Parish Sheriff's Office (“JPSO”), investigated the eight 2016 Metairie burglaries.

No one was caught on foot in connection with the burglaries and the detectives did

not have any named suspects. The only information the detectives had to work

from was security video footage in the areas of the Dorrington, Beverly Gardens

and Aurora burglaries which showed two white males driving a distinctive gray

late model Ford F-150. DNA analysis of a glove recovered from the house on

Ridgeway was not informative.

Seeking information, the detectives distributed a “wanted” bulletin

throughout the JPSO and the local media. Following the media release, a Baton

Rouge detective contacted the Jefferson Parish detectives to advise that they were

investigating four home burglaries in the Baton Rouge area, including one

aggravated burglary involving the same truck. On April 14, 2016, Sergeant

DeRoche was advised that DNA belonging to Ernst and defendant was found on a

water bottle connected to the aggravated burglary in Baton Rouge.

During the investigation, the detectives also gathered information connecting

defendant and Ernst to each other from Dustin Johnson (Johnson). At the time,

Johnson was in the custody of the Jefferson Parish Sheriff in connection with the

2015 Metairie burglaries. He was also a suspect in a Mandeville, Louisiana home

burglary that occurred in 2015. Detectives listened to Johnson’s jail calls to obtain

information about others involved in those crimes and the whereabouts of stolen

property. Among the surveilled calls were conversations with a person referred to

as “Mark.” Those conversations revealed “Mark” was particularly interested in

Johnson’s case and paid for his legal counsel. “Mark” was later identified to be

defendant and the phone number for “Mark” was registered to Ernst.

22-KA-373 7 In addition to the above, tracking information from a Mac Pro computer

taken from the George’s residence on Ridgeway led detectives to a Metairie

apartment where Jason Meserole (Meserole) and Lauren Plaisance (Plaisance)

were living. Plaisance allowed detectives into the apartment, where the stolen

computers and camera equipment were located and identified.

Meserole returned to the apartment approximately a half hour later. Upon his

arrival, detectives questioned Meserole about the stolen computers. He reported

that Ernst brought him the computers to “clean them in full.” Detectives also

questioned Plaisance, who provided the names of “Brian Ernst” and “Ray.” While

stating she did not know them well, Plaisance reported knowing “Ray” through

Ernst and that “Ray” was dating Ernst’s sister, Malbrough. Plaisance identified

Ernst and defendant in photo lineups and Meserole provided the officers with

Ernst’s address. Thereafter, warrants were obtained for the arrest of defendant and

Ernst, as well as to search Ernst’s residence.

Ernst Arrest

On April 14, 2016, detectives went to Ernst’s residence to locate stolen

laptops. After searching the apartment, the detectives seized seventy-four items

from Ernst’s bedroom, including firearms, gaming devices, assorted prescription

medication bottles, televisions, computer equipment, and an inventory ledger.

Ernst was arrested that same day. He would identify defendant as his

accomplice in the 2016 Metairie burglaries. Ernst described the vehicles used in

the burglaries and how they came to possess each of them. He also described the

clothing worn during commission of the crimes. Further, information provided by

Ernst led law enforcement to the gray F-150 truck depicted in video surveillance

from the Metairie burglaries. Inside the truck, detectives found a dresser drawer

22-KA-373 8 taken from the Poinsetta residence. Ernst would enter into a plea agreement with

the State.

Apprehension of Defendant

During the investigation, detectives learned that defendant resided on

Hellenbirg Street in Covington, Louisiana. On April 20, 2016, a search warrant for

defendant’s residence was obtained, and Sergeant DeRoche assisted St. Tammany

detectives in conducting the search. Neither defendant nor Malbrough were home

at the time. Thereafter, Sergeant DeRoche contacted the U.S. Marshals’ task force

to assist in their search for defendant. U.S. Marshals Agent DiGiovanni located

defendant and Malbrough in a Metairie Road parking lot. DiGiovanni observed

them moving items between their respective vehicles until a marked Jefferson

Parish Sheriff’s Office unit, driven by Detective Dupuis, appeared and stopped in

the middle of the road. Thereafter, defendant fled in the F-150 truck, and

Marlbrough fled in a Lexus automobile. Detective Dupuis activated the lights and

siren of his marked JPSO unit and initiated pursuit of the two vehicles. Detective

Dupuis followed the two vehicles which were traveling between sixty-five to

seventy miles per hour in a twenty mile-per-hour zone and running multiple stop

signs. When the chase reached Metairie Lawn, defendant abandoned the still-

moving truck and got into the Lexus being driven by Malbrough. The Lexus raced

off with Detective Dupuis in pursuit until Metairie Heights and the South I-10

Service Road, where defendant was apprehended.

A second search of defendant’s residence was conducted based on

information provided by Malbrough following her arrest. Located inside the

residence were stolen items from the Mandeville burglaries, as well as from the

burglaries of the Beverly Gardens and Aurora homes. Also discovered were flash

22-KA-373 9 drives containing photographs of firearms matching the inventory list recovered

from Ernst’s residence.

In the course of their investigation into the Metairie burglaries, law

enforcement officers collected information regarding other crimes involving

defendant. Beyond implicating defendant in the 2016 Metairie burglaries, Ernst

provided law enforcement with details about the Baton Rouge home burglaries he

and defendant committed that same year. Johnson also began cooperating with law

enforcement after Ernst’s arrest, admitting to committing a 2015 Mandeville home

burglary and multiple Metairie home burglaries in 2015. He named defendant as

his accomplice in each crime.

ASSIGNMENTS OF ERROR

In this appeal, defendant presents eight assignments of error. Two

assignments of error are set forth in the appellant brief filed by counsel and six are

contained in defendant’s pro se appellant brief. Pro Se Assignment of Error

Number One asserts that the evidence was insufficient to support defendant’s

convictions for simple burglary, theft, and aggravated flight. In counseled

Assignments of Error Numbers One and Two, defendant asserts that the trial court

erred in imposing an unconstitutionally excessive sentence and erred in denying

defendant’s motion to reconsider sentence. In Pro Se Assignments of Error

Numbers Two, Four, Five and Six, defendant asserts that the trial court erred in its

denial of a motion for new trial. Finally, Pro Se Assignment of Error Number

Three contends that an incomplete trial transcript violates his constitutional right to

a complete trial transcript.

22-KA-373 10 Sufficiency of Evidence

In this assignment of error, defendant argues that the evidence was

insufficient to support his convictions for simple burglary, theft, and aggravated

flight. 3 Defendant argues the guilty verdicts were not supported by physical

evidence.

The question of sufficiency of the evidence is properly raised in the trial

court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art.

821. State v. Mouton, 16-673 (La. App. 5 Cir. 4/26/17), 219 So.3d 1244, 1254,

writ denied, 17-1149 (La. 5/18/18), 242 So.3d 572. A post-verdict judgment of

acquittal shall be granted only if the court finds that the evidence, viewed in a light

most favorable to the State, does not reasonably permit a finding of guilty. State v.

Lavigne, 22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 939, writ not

considered, 23-1119 (La. 10/10/23), 370 So.3d 1086.

On February 7, 2022, defendant filed a counseled Motion for Post-Verdict

Judgment of Acquittal. Therein, defendant asserted that the evidence did not

reasonably permit a finding of guilty of simple burglary of an inhabited dwelling,

theft, or aggravated flight from an officer. The motion was denied that same day.4

Appellate review of the denial of the motion for post-verdict judgment of

acquittal is controlled by the standards set forth in Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In reviewing the sufficiency of the

evidence, an appellate court must determine if the evidence, whether direct or

circumstantial, or a mixture of both, viewed in the light most favorable to the

prosecution, was sufficient to convince a rational trier of fact that all of the

elements of the crime have been proven beyond a reasonable doubt. Jackson v.

3 Pro Se Assignment of Error Number One. 4 On appeal, defendant does not specifically argue that the trial judge erred in denying these motions.

22-KA-373 11 Virginia, supra; State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d 794,

804. Under the Jackson standard, a review of the record for sufficiency of the

evidence does not require the reviewing court to determine whether the evidence at

the trial established guilt beyond a reasonable doubt but whether, upon review of

the whole record, any rational trier of fact would have found guilt beyond a

reasonable doubt. State v. McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d

1097, 1103.

In its determination of whether any rational trier of fact would have found

the defendant guilty, a reviewing court will not re-evaluate the credibility of

witnesses or re-weigh the evidence. State v. Hutchinson, 22-536 (La. App. 5 Cir.

8/18/23), 370 So.3d 769, 781. The credibility of a witness is within the sound

discretion of the trier of fact, who may accept or reject, in whole or in part, the

testimony of any witness. Id. Thus, in the absence of internal contradiction or

irreconcilable conflicts with physical evidence, the testimony of one witness, if

believed by the trier of fact, is sufficient to support a conviction. State v. Tate, 22-

570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236, 244.

Circumstantial evidence used to prove the commission of an offense must

exclude every reasonable hypothesis of innocence in order to convict. State v.

Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334 So.3d 1021, 1034. This is not a

separate test from the Jackson standard, but rather provides a helpful basis for

determining the existence of reasonable doubt. Id. All evidence, both direct and

circumstantial, must be sufficient to support the conclusion that the defendant is

guilty beyond a reasonable doubt. Tate, supra.

Defendant was convicted of eight counts of simple burglary of an inhabited

dwelling. 5 On appeal, defendant does not challenge the evidence that the

5 Counts one through four and six through nine of the bill of information.

22-KA-373 12 burglaries occurred. Rather, he argues the evidence does not support his

participation in those crimes. Defendant points out that the glove found at 3708

Ridgeway Drive did not have his nor Ernst’s DNA and that the fingerprint

recovered at 1604 Marseilles Drive belonged to neither him nor Ernst.

At trial, Ernst and Malbrough presented testimonial evidence of defendant’s

participation in the 2016 Metairie burglaries. The testimony of one witness, if

believed by the trier of fact that is without internal contradiction or irreconcilable

conflict with physical evidence is sufficient to support a conviction. Tate, supra.

Witness testimony in this case did not contradict any physical evidence. Ernst

testified that he committed each burglary with defendant. Items from two of the

homes - Aurora and Beverly Gardens - were found in defendant’s home. A gray F-

150 truck connected to defendant and Ernst was linked to the burglaries at

Dorrington, Aurora, and Poinsettia home. Items from the homes on Aurora,

Ridgeway, Beverly Gardens, Metairie Heights, and Elmeer were found in Ernst’s

residence. The presence of the items in Ernst’s residence supports testimonial

evidence that Ernst and defendant committed the burglaries together. Malbrough,

defendant’s live-in girlfriend at the time, also testified that defendant committed

burglaries with Ernst. Additionally, Plaisance and Meserole connected defendant

to items taken from the residences. Finally, surveillance connected a truck stolen

by defendant to several of the burglaries. The record reflects that the testimonial

evidence supported all eight burglary convictions.

Upon review, we find that a rational trier of fact could have found that the

evidence was sufficient under the Jackson standard to support defendant’s

conviction as to each count of simple burglary of an inhabited dwelling.

Defendant was also convicted and sentenced for theft valued at five

thousand dollars or more but less than twenty-five thousand dollars in violation of

22-KA-373 13 La. R.S. 14:67(B)(2). 6 The thing stolen was a 2011 Hyundai Tucson owned by

Katherine Dolese. On appeal, defendant contends there was insufficient evidence

of the car’s value to support the conviction for theft between $5,000.00 and

$25,000.00.

For the crime of theft, the State is required to prove that the defendant

misappropriated or took a thing of value that belonged to another, without the

consent of the owner, and that he had the intent to deprive the owner permanently

of that which was misappropriated or taken. La. R.S. 14:67. See State v. Smith, 09-

36 (La. App. 5 Cir. 4/28/09), 13 So.3d 570, 575. Defendant does not challenge the

sufficiency of the evidence satisfying those elements of the crime. Rather,

defendant argues on appeal that the State failed to present sufficient evidence of

the car’s value at the time of the theft. In addition to the three elements referred to

above, the State is also required to prove the value of the stolen property at the

time of the theft because the determination of the severity of the offense and the

degree of punishment upon conviction depends upon the value of the stolen

property. State v. Ramsdell, 06-644 (La. App. 5 Cir. 12/27/06), 949 So.2d 508,

511; State v. Trosclair, 19-833 (La. App. 3 Cir. 6/24/20), 299 So.3d 704, 715, writ

denied, 20-949 (La. 1/20/21), 308 So.3d 1162 (citing State v. Smith, 94-901 (La.

App. 5 Cir. 8/28/96), 680 So.2d 95, 98).

The value of the stolen property may be established by testimony by the

owner alone if it is clear and uncontradicted. State v. Richey, 13-228 (La. App. 5

Cir. 10/30/13), 128 So.3d 1143, 1150. Qualifying the owner as an expert is not

required before testifying as to the value of the thing owned by him. Id. At trial,

Katherine Dolese testified to owning a 2011 Hyundai Tucson in April 2016, that

6 Count five.

22-KA-373 14 she did not give anyone permission to take her car, and denied knowing defendant

or Ernst. When asked how much the car cost, she replied, “twenty-two thousand.”

In addition to hearing Katherine Dolese’s testimony, the jury viewed

photographs and a video showing the stolen Tucson. In describing the

photographs, Katherine stated, “This is -- these are photos of my vehicle parked in

a place that I was not allowed to go to. And this is my car. And the last photo is a

picture of the plates. And they’re bent as if someone were trying to remove them,

which I did not do that.” There was no further testimony regarding the value or

condition of the vehicle.

We find that the jury was presented with sufficient evidence that the vehicle

was worth at least five thousand dollars. In State v. Bruff, 91-703 (La. App. 5 Cir.

3/31/92), 597 So. 2d 122, writ denied, 92-1224 (La. 7/1/92), 600 So.2d 676, the

defendant was found guilty of unauthorized use of a vehicle valued in excess of

$1,000. On appeal, the defendant argued that the State did not prove the value of

the vehicle. At trial, the State introduced evidence that the defendant was not

authorized to drive off the car lot with a used 1988 Ford Taurus, and it introduced

photographs of the Taurus. This Court highlighted that the photographs showed

the body of the vehicle, the engine performed well enough to drive, and the jurors

could have reasonably concluded that the Taurus was worth more than $1,000. See

also Ramsdell, 949 So.2d at 512, where this Court held that although the owner did

not testify as to the value of the truck, a reasonable jury could have concluded that

the value of the nine-year-old truck exceeded five hundred dollars based on the

truck’s condition as depicted in the videotape.

Here, the stolen vehicle was approximately five years old. At some point,

the vehicle cost twenty-two thousand dollars. The photographs of the vehicle

showed that the exterior was in a very good condition. Further, the vehicle was

22-KA-373 15 drivable at the time it was taken. As such, we find that based on the evidence

presented, a reasonable jury could have concluded that the vehicle was worth at

least five thousand dollars at the time of the theft.

Finally, the defendant was convicted of one count of aggravated flight from

an officer. 7 At the time of the offense, La. R.S. 14:108.1 stated, in pertinent parts:

*** C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop …, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.

D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or watercraft commits at least two of the following acts: (1) Leaves the roadway or forces another vehicle to leave the roadway. (2) Collides with another vehicle or watercraft. (3) Exceeds the posted speed limit by at least twenty-five miles per hour. (4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99. (5) Fails to obey a stop sign or a yield sign. (6) Fails to obey a traffic control signal device.

On appeal, defendant argues there was insufficient evidence for the jury to

convict him of aggravated flight from an officer because law enforcement officers

lacked probable cause or a reasonable suspicion to stop his truck on April 20,

2016. Defendant relies on State v. Harris, 52,370 (La. App. 2 Cir. 11/14/18), 261

So.3d 149, where the second circuit reversed the defendant’s conviction for

7 Count ten of the bill of information.

22-KA-373 16 aggravated flight because the State failed to prove that the officers had reasonable

grounds to believe the defendant committed an offense prior to the chase.

In the instant case, evidence presented at trial established that defendant was

the subject of an arrest warrant on April 20, 2016. Officers identified defendant in

a Metairie Road parking lot. Defendant departed the lot after observing law

enforcement positioned nearby. Thus, we find the argument that law enforcement

did not have reasonable grounds to stop defendant’s vehicle is unsupported by the

Defendant also argues the pursing law enforcement officer did not activate

the SUV’s emergency siren or lights. Supporting this argument are the

defendant’s testimony and police dispatch logs. Conversely, Agent DiGiovanni

testified that Detective Dupuis initiated his lights and sirens and pursued both

vehicles. Detective Dupuis testified that he initiated pursuit with his red lights and

siren activated, which remained on during the entire pursuit. He acknowledged

sirens could not be heard in audio recordings of his radio transmission, and

explained that the siren can be turned on and off by radio transmissions because he

would not be heard over the radio when sirens are activated. Further, Malbrough

testified that the white SUV following them had lights and sirens on.

Multiple witnesses testified at trial that Malbrough and defendant drove at

excessive speeds while disregarding stop signs as they fled from an officer with the

lights and sirens of his marked police unit initiated. Detective Dupuis testified that

the two vehicles “ran a stop sign at Metairie Lawn and Fagot at a high rate of

speed” and then ran another stop sign, estimating their speed to be sixty-five or

seventy miles per hour in a twenty mile-per-hour zone. In her testimony,

Malbrough admitted to driving between sixty and seventy miles per hour and that

they did not stop at stop signs or red lights.

22-KA-373 17 Viewing the evidence in the light most favorable to the prosecution, we find

that a rational trier of fact could find that the essential elements of the crime of

aggravated flight from an officer were proven beyond a reasonable doubt by the

State.

Excessive Sentence and Denial of Motion to Reconsider Sentence

Counseled assignments of error number one and two are related and are discussed

together. 8 Defendant argues that his sentences totaling sixty-eight years at hard

labor are unconstitutionally excessive. Defendant contends that the charges,

except for the count of aggravated flight from an officer, were non-violent property

crimes. Also supporting this argument are references to Ernst’s sentence and the

plea deal defendant was offered before trial. Defendant asserts that the sentences

should be vacated, and the matter remanded for resentencing.

“Failure to make or file a motion to reconsider sentence or to include a

specific ground upon which a motion to reconsider sentence may be based,

including a claim of excessiveness, shall preclude the state or the defendant from

raising an objection to the sentence or from urging any ground not raised in the

motion on appeal or review.” La. C.Cr.P. art. 881.1(E). A motion for

reconsideration of sentence “shall be oral at the time of sentence or shall be in

writing thereafter and shall set forth the specific grounds on which the motion is

based.” La. C.Cr.P. art. 881.1(B).

One day after sentencing in this case, defendant filed a counseled Motion for

Reconsideration of Sentence, wherein he asserted “that the sentence imposed is

excessive, that the sentence imposed be reconsidered, and that a lower sentence

more in keeping with fairness and state and federal constitutional standards be

8 Counseled Assignment of Error Number One and Counsel Assignment of Error Number Two.

22-KA-373 18 imposed.” On February 11, 2022, defendant filed a pro se Motion to Note Formal

Objection wherein he asked that the judge note his objection to the sentence

imposed as being excessive and to the multiple bill filed by the State. Also on

February 11, 2022, the judge addressed the motion to reconsider at a hearing.

Defendant requested the trial court impose the sentence of eight years that was

offered in plea discussions. The trial judge denied the motion to reconsider

sentence, and defense counsel objected to the ruling.

This Court has held that when the consecutive nature of sentences is not

specifically raised in the trial court, the issue is not included in the review for

constitutional excessiveness, and the defendant is precluded from raising the issue

on appeal. State v. Rodgers, 16-14 (La. App. 5 Cir. 10/26/16), 202 So.3d 1189,

1200, writs denied, 16-2189 (La. 9/15/17), 225 So.3d 479, and 16-2093 (La.

1/29/18), 235 So.3d 1104. See also State v. Barber, 19-235 (La. App. 5 Cir.

10/23/19), 282 So.3d 404, 413, where this Court found that the defendant’s failure

to challenge the consecutive nature of his sentences below limited this Court to a

bare review for constitutional excessiveness.

Cruel and unusual punishment is prohibited by the Eighth Amendment to the

United States Constitution as well as Article I, § 20 of the Louisiana Constitution.

Even when it is within the applicable statutory range, a sentence is

unconstitutionally excessive if it is nothing more than the purposeful imposition of

pain and suffering and is grossly out of proportion to the severity of the crime and

makes no measurable contribution to acceptable goals of punishment. State v.

Bourgeois, 22-418 (La. App. 5 Cir. 4/26/23), 361 So.3d 1138, 1147. A sentence is

grossly disproportionate if, when the crime and punishment are considered in light

of the harm done to society, it shocks the sense of justice. Barber, supra.

22-KA-373 19 The issue on appeal is whether the trial court abused its discretion, not

whether another sentence might have been more appropriate. State v. Diaz, 20-381

(La. App. 5 Cir. 11/17/21), 331 So.3d 500, 520, writ denied, 21-1967 (La. 4/5/22),

335 So. 3d 836. A trial judge is in the best position to consider the aggravating and

mitigating circumstances of a particular case and, therefore, is given broad

discretion when imposing a sentence. Id. at 519-20. The review of sentences under

La. Const. art. 1, § 20 does not provide an appellate court with a vehicle for

substituting its judgment for that of a trial judge as to what punishment is most

appropriate in a given case. State v. Corea-Calero, 22-117 (La. App. 5 Cir.

12/28/22), 355 So.3d 697, 701. In reviewing a sentence for excessiveness, the

reviewing court shall consider the crime and the punishment in light of the harm to

society and gauge whether the penalty is so disproportionate as to shock the court’s

sense of justice, while recognizing the trial court’s wide discretion. State v.

Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616, 623, writ denied, 21-

1128 (La. 12/7/21), 328 So.3d 425. The relevant question on appellate review is

“whether the trial court abused its broad sentencing discretion, not whether another

sentence might have been more appropriate.” State v. Aguliar-Benitez, 21-174 (La.

10/10/21), 332 So.3d 618, 620.

Three factors are considered in reviewing a trial court’s sentencing

discretion: 1) the nature of the crime; 2) the nature and background of the offender;

and 3) the sentence imposed for similar crimes by the same court and other courts.

State v. Hayman, 20-323 (La. App. 5 Cir. 4/28/21), 347 So.3d 1030, 1043.

However, there is no requirement that specific matters be given any particular

weight at sentencing. State v. Bridgewater, 22-517 (La. App. 5 Cir. 4/26/23), 362

So.3d 998, 1010. An appellate court cannot set aside a sentence as excessive

absent a manifest abuse of discretion. Id.

22-KA-373 20 In this case, defendant was convicted of eight counts of burglary, one count

of theft valued at five thousand dollars but less than twenty-five thousand dollars,

and one count of aggravated flight from an officer. At the time of the offenses,9

La. R.S. 14:62.2 provided, “Whoever commits the crime of simple burglary of an

inhabited dwelling shall be imprisoned at hard labor for not less than one year,

without benefit of parole, probation or suspension of sentence, nor more than

twelve years.”10 On each count of simple burglary, defendant was sentenced to six

years imprisonment at hard labor, with the first year to be served without the

benefit of parole, probation, or suspension of sentence.

Defendant stipulated to being a fourth-felony offender as to count ten. At

the time of the underlying offense committed on April 20, 2016,11 La. R.S.

15:529.1 stated that if the fourth or subsequent felony is such that, upon a first

conviction the offender would be punishable by imprisonment for any term less

than his natural life, then the person shall be sentenced to imprisonment for the

fourth or subsequent felony for a determinate term not less than the longest

prescribed for a first conviction but in no event less than twenty years and not more

than his natural life. Consequently, defendant faced an enhanced sentencing range

of twenty years imprisonment to life imprisonment. The judge imposed an

enhanced sentence of twenty years imprisonment at hard labor, the statutory

minimum sentence.

9 The law in effect at the time of the commission of the offense is determinative of the penalty imposed. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520. 10 In State v. Ordon, 18-295 (La. App. 5 Cir. 11/7/18), 259 So.3d 620, 628 n.15, this Court addressed the duration of the restriction of benefits under the statute for simple burglary of an inhabited dwelling. This Court explained that in State v. Boowell, 406 So.2d 213, 215-16 (La. 1981), the Louisiana Supreme Court held that, due to the ambiguity of La. R.S. 14:62.2, only the first year of a sentence imposed for simple burglary of an inhabited dwelling may be imposed without benefits. 11 It is well settled that a “defendant should be sentenced in accord with the version of La. R.S. 15:529.1 [the multiple offender statute] in effect at the time of the commission of the charged offense.” Bourgeois, 361 So.3d at 1149 (quoting State v. Parker, 03-924 (La. 4/14/04), 871 So.2d 317, 326).

22-KA-373 21 Much of defendant’s argument below and on appeal focuses on a

comparison of sentences imposed after trial to the plea offers before trial. He also

points to the sentence Ernst received under a plea agreement with the State.

Defendant does not address the factors for reviewing a trial court’s sentencing. See

State v. Hayman, supra. Rather, defendant contends the exercise of his right to go

to trial was the reason for his comparatively longer prison sentence.

This Court has recognized that when a defendant chooses not to accept the

plea bargains offered by the State, he takes the risk of a greater penalty upon a jury

conviction. State v. Lasalle, 22-577 (La. App. 5 Cir. 8/18/23), 370 So.3d 521, 532.

Particularly, the risk of penalty becomes greater upon jury conviction because the

court has the benefit of witness testimony, allowing it to more fully consider the

severity of the offense. Id; State v. Johnson, 11-375 (La. App. 5 Cir. 12/28/11), 83

So.3d 1116, 1123, writ denied, 12-296 (La. 6/22/12), 91 So.3d 966.

Regarding defendant’s complaint that Ernst received a lesser sentence, there

is no requirement that co-defendants be sentenced equally. State v. Napoleon, 01-

1222 (La. App. 5 Cir. 2/26/02), 811 So.2d 980, 984. While co-defendants

convicted of the same crime need not be sentenced equally, even where the co-

defendants come from similar backgrounds and might be similar in other respects,

disparity of sentences is another factor to be weighed by this Court in assessing an

excessiveness claim. See State v. Smith, 433 So.2d 688, 698 (La. 1983).

Defendant’s lack of remorse was noted by the trial court at sentencing. Further,

Ernst was sentenced pursuant to a plea agreement. As such, the disparity in Ernst’s

and defendant’s sentences was not improper.

Additionally, we consider the nature of the crimes, the nature and

background of the offender, and the sentences imposed for similar crimes by the

same court and other courts. In State v. Jacobs, 10-292 (La. App. 3 Cir. 10/6/10),

22-KA-373 22 48 So.3d 1218, 1225, the third circuit stated, “Simple burglary of an inhabited

dwelling is one of those offenses that the law considers more serious than others,

as evidenced by the range of incarceration sentences available.” The court

provided, “[A]lthough commission of the offense does not necessarily involve

physical injury or even physical danger to the victim, it constitutes an invasion of

an individual’s home–a place where he or she should be able to feel totally safe

from the evils of the world.”

Here, as acknowledged by the trial judge at sentencing, each count impacted

the lives of a different family. One victim, Mrs. Vinet, gave a victim impact

statement wherein she detailed the physical losses and emotional damage she

suffered from defendant’s burglary. She explained that defendant took her sense of

safety and described the life changes she has made in light of defendant’s actions.

Many of the victims did not recover all of their stolen property.

As to the aggravated flight from an officer, we consider the fact that

defendant involved his girlfriend in the chase endangering her as he drove well

over the speed limit and ignored several stop signs. Anytime an individual chooses

to flee from the police and leads officers on a high-speed pursuit, it is dangerous

and potentially life-threatening conduct. See State v. Williams, 55,290 (La. App. 2

Cir. 9/27/23), 2023 WL 6279944. Further, testimony at trial indicated that

defendant exited his moving vehicle and left it running so that it would cross paths

with the pursuing officer’s vehicle.12 Such an act appears to have increased the

danger to the officer and any nearby persons or property.

Regarding the nature and background of the offender, we note that the

defendant was approximately thirty years old and that he had an extensive criminal

Additionally, State’s Exhibit 82, which is an arrest register for defendant, described that some residents 12

were walking their dogs at the time of the aggravated flight.

22-KA-373 23 history, including several convictions for similar offenses. The judge at sentencing

described defendant as a career criminal whom he believed would recidivate.

Additionally, the trial judge at sentencing observed that defendant continued to

deny any involvement in the charged offenses and did not show any remorse. Lack

of remorse is a permissible consideration for sentencing determinations by a trial

court. State v. Leach, 22-194 (La. App. 5 Cir. 12/28/22), 356 So.3d 531, 546.

Finally, we look to similar sentences imposed for similar crimes by this

Court and other courts. As to the counts of simple burglary of an inhabited

dwelling, we find that a six-year sentence has been upheld in another case. In State

v. Thomas, 18-981 (La. App. 3 Cir. 6/5/19), 2019 WL 2373898 (unpublished

opinion; not designated for publication), writ denied, 19-1014 (La. 12/10/19), 285

So.3d 487, the defendant pled guilty to a reduced charge of simple burglary of an

inhabited dwelling. The court reviewed the six-year sentence for excessiveness

and affirmed it. Additionally, harsher sentences for simple burglary of an

inhabited dwelling have been upheld.13

Considering that the underlying statute for aggravated flight from an officer

and the multiple offender statute have changed several times and that there are no

cases that match the circumstances of this case, we turn to the following for

guidance. In State v. Hampton, 50,561 (La. App. 2 Cir. 5/18/16), 195 So.3d 548,

writ denied, 16-1181 (La. 5/26/17), 221 So.3d 854, the second circuit upheld a

13 See the following cases where the defendants argued that their sentences were excessive and the courts upheld those sentences. State v. Herrington, 49,323 (La. App. 2 Cir. 11/19/14), 152 So.3d 202 (twelve years imprisonment for simple burglary of an inhabited dwelling); State v. Henderson, 48,806 (La. App. 2 Cir. 2/26/14), 136 So.3d 299, writ denied, 14-687 (La. 10/31/14), 152 So.3d 151 (ten-year sentences for simple burglary of an inhabited dwelling); Jacobs, supra (ten-year sentence for simple burglary of an inhabited dwelling); State v. Howard, 09-281 (La. App. 3 Cir. 11/4/09), 2009 WL 3637065 (unpublished opinion; not designated for publication), writ denied, 09-2531 (5/7/10), 34 So.3d 859 (seven years at hard labor for two counts of simple burglary of an inhabited dwelling); State v. Baker, 08-898 (La. App. 3 Cir. 2/4/09), 3 So.3d 666 (ten-year sentences for simple burglary of an inhabited dwelling); State v. Durham, 43,558 (La. App. 2 Cir. 10/15/08), 996 So.2d 642 (nine-year sentence for burglary of an inhabited dwelling); State v. Alsup, 42,636 (La. App. 2 Cir. 10/24/07), 968 So.2d 1152, writ denied, 07-2252 (La. 4/25/08), 978 So.2d 363 (eight-year sentence for simple burglary of an inhabited dwelling).

22-KA-373 24 sentence of thirty years where the range faced by the defendant was twenty years

to life imprisonment. The court concluded that considering his long criminal

history, the sentence neither shocked its sense of justice, nor was it

disproportionate considering the number of past offenses committed. The court

further explained that although several of the offenses were minor motorist

violations, the defendant demonstrated a continuing, flagrant disregard for law his

entire adult life.

In State v. Tyrney, 22-949 (La. App. 1 Cir. 3/16/23), 363 So.3d 550, writ

denied, 23-552 (La. 11/21/23), 373 So.3d 460, under the multiple offender statute

in effect at the time, the defendant received the mandatory enhanced sentence of

twenty years imprisonment as a fourth-felony offender for aggravated flight from

an officer. In considering whether the sentence was excessive, the first circuit

found the sentence was not grossly disproportionate to the severity of the offense,

stating, “It is of no moment that the defendant’s four prior convictions were not for

crimes of violence.”

Here, in light of the foregoing, we find that the trial judge did not abuse his

discretion in imposing the sentences and that this assignment of error lacks merit.

Denial of Motion for New Trial: Erroneous Admission of 404(b) Evidence

In this assignment of error, defendant argues that he should have been

granted a new trial because the La. C.E. art. 404(b) evidence presented during trial

was improperly admitted, and that evidence led the jurors to declare guilt on a

ground different from proof specific to the offenses charged.14 On appeal,

defendant argues that the evidence of the burglaries with Johnson and the

14 Pro se Assignment of Error Number Two.

22-KA-373 25 burglaries in Baton Rouge with Ernst should not have been admitted at trial and

admission of that evidence was not harmless.

On April 3, 2019, the State filed State’s Notice of Intent to Use Other

Crimes Evidence Pursuant to Louisiana Code of Evidence Article 404(B) and/or

the Res Gestae Doctrine. The State explained that it wanted to present evidence of

“prior burglaries, crimes committed contemporaneously with the charged

burglaries, crimes committed in advance of the charged burglaries (which were

committed to effect the charged burglaries), and domestic abuse perpetrated by the

defendant.” The State then detailed the numerous acts. This included charges of

four burglaries in June and July of 2015 committed with Johnson, two car

burglaries committed in February 2016, and one carjacking, unauthorized use of a

motor vehicle, and six burglaries in Baton Rouge between March and April of

2016. In response, defendant filed a pro se Motion in Opposition to State’s Notice

of Intent to Use Other Crimes Evidence Pursuant to Louisiana Code of Evidence

Article 404(B) and/or the Res Gestae Doctrine. Defendant argued that the

evidence sought to be introduced by the State was not relevant and that the

probative value was substantially outweighed by the danger of unfair prejudice,

confusion of the issue, or misleading the jury. He suggested that admitting the

evidence would result in “numerous trials inside the current trial.” The State’s

notice was addressed on June 10, 2019. Regarding contemporaneous crime and/or

acts, the trial court ruled that evidence of such crimes and/or acts would be

admitted, subject to cross-examination.

The fundamental rule in Louisiana governing the use of evidence of other

crimes, wrongs, or acts is that such evidence is not admissible to prove that the

accused committed the charged crime because the defendant has committed other

such crimes in the past. State v. Williams, 09-48 (La. App. 5 Cir. 10/27/09), 28

22-KA-373 26 So.3d 357, 363, writ denied, 09-2565 (La. 5/7/10), 34 So.3d 860. See also La. C.E.

art. 404(B)(1). Generally, evidence of other crimes, wrongs, or acts is inadmissible

because of the “substantial risk of grave prejudice to the defendant.” State v. Ard,

20-221 (La. App. 5 Cir. 4/28/21), 347 So.3d 1046, 1055.

However, evidence of prior crimes may be admitted if the State establishes

an independent relevance aside from proving the defendant’s criminal character.

State v. Brown, 17-348 (La. App. 5 Cir. 12/20/17), 235 So.3d 1314, 1323, writ

denied, 18-158 (La. 11/5/18), 256 So.3d 276, cert. denied, -- U.S. --, 139 S.Ct.

2033, 204 L.Ed.2d 233 (2019). Evidence of prior crimes, wrongs, or acts is

admissible res gestae evidence when they are so nearly connected to the charged

offense that the State could not accurately present its case without reference to

them. State v. Maize, 16-575 (La. App. 5 Cir. 6/15/17), 223 So.3d 633, 648, writ

denied, 17-1265 (La. 4/27/18), 241 So.3d 306. Additionally, Louisiana

jurisprudence has long sanctioned the use of other crimes evidence to show modus

operandi, where the prior crime is so distinctively similar to the one charged,

especially in terms of time, place, and manner of commission, that one may

reasonably infer that the same person is the perpetrator in both instances. State v.

Rodney, 19-195 (La. App. 5 Cir. 10/23/19), 282 So.3d 395, 403. Further, evidence

of other crimes may be admissible if the evidence is relevant to show motive, i.e.,

to show that the defendant had a reason to commit the crime with which he is

charged. State v. Leday, 11-1022 (La. App. 5 Cir. 6/28/12), 97 So.3d 501, 506, writ

denied, 12-1765 (La. 3/1/13), 108 So.3d 788.

Even when admissible under La. C.E. art. 404(B)(1), the other crimes

evidence must tend to prove a material fact at issue or to rebut a defendant’s

defense. Ard, supra. That probative value must outweigh its prejudicial effect. La.

C.E. art. 403; Maize, supra. In as much as any inculpatory evidence is prejudicial,

22-KA-373 27 introduction of probative evidence of prior misconduct is limited only when it is

unduly and unfairly prejudicial. Rodgers, 202 So.3d at 1201. The term “unfair

prejudice,” as to a criminal defendant, speaks to the capacity of some concededly

relevant evidence to lure the fact-finder into declaring guilt on a ground different

from proof specific to the offense charged. State v. Thomas, 19-582 (La. App. 5

Cir. 7/29/20), 300 So.3d 517, 528, writ denied, 20-1503 (La. 3/2/21), 311 So.3d

1053.

The burden is on the defendant to show that he was unfairly prejudiced by

the admission of other crimes evidence. Gatson, 334 So.3d at 1038. A trial court’s

ruling on admissibility of evidence pursuant to La. C.E. art. 404(B)(1) will not be

disturbed unless it is found to be an abuse of discretion. Id.

If the trial court has been found to abuse its discretion in allowing other

crimes evidence, the erroneous admission is subject to a harmless error analysis.

Gatson, 334 So.3d at 1039. Analysis of harmless error requires a determination as

to whether the guilty verdict actually rendered in the trial was surely unattributable

to the error. State v. Massey, 11-358 (La. App. 5 Cir. 3/27/12), 97 So.3d 13, 29,

writ denied sub nom. State ex rel. Massey v. State, 12-993 (La. 9/21/12), 98 So.3d

332.

On appeal, defendant argues that the judge only permitted the evidence of

other crimes or wrongs because the State represented that it would call detectives

as witnesses subject to cross-examination by the defendant. Defendant also argues

that the Baton Rouge incident and the burglaries committed with Johnson were not

sufficiently similar to the charged burglaries as to warrant their admission.

In review of the record, even if there was an error in admitting the evidence,

it was harmless. Evidence of defendant’s guilt for the crimes of burglary, theft,

and aggravated flight from an officer was not enhanced by admitting evidence of

22-KA-373 28 his roles in other crimes. Ernst testified to committing the burglaries with

defendant. Malbrough testified that her brother, Ernst, and defendant committed

burglaries together and that defendant kept items taken from the burglaries in their

house. She also testified to being with defendant as they fled from law

enforcement. Additionally, items from the burglaries were found by law

enforcement in Ernst’s and defendant’s homes. Moreover, the jury was given a

limiting instruction as to the other crimes evidence admitted. Based on the

foregoing, we find that the verdict was surely unattributable to admission of the

other crimes evidence. Therefore, we find that this assignment lacks merit.

Incomplete Transcript: Violation of Constitutional Rights

In this assignment of error, defendant argues that the missing portions of the

trial transcript are in violation of his constitutional right to a complete trial

transcript where prosecutorial misconduct has been omitted. 15 Defendant argues

that the transcript of the State’s rebuttal closing argument was altered. Citing his

own statements at sentencing as support, defendant contends that an accurate

transcript would have shown prosecutorial misconduct and ineffective assistance of

counsel. Defendant further contends that the State instructed the jury to disregard

evidence that was not favorable to the State and that contradicted trial testimony.

Louisiana Constitution Article I, § 19 guarantees defendants a right of

appeal based upon a complete record of all evidence upon which the judgment is

based. In felony cases, the clerk or court stenographer shall record all the

proceedings, including the examination of witnesses, statements, rulings, orders

and charges by the court, and objections, questions, statements, and arguments of

counsel. La. C.Cr.P. art. 843; State v. Sly, 23-60 (La. App. 5 Cir. 11/2/23), 2023

WL 7211074. The trial judge is duty-bound to see that the court reporter makes a

15 Pro se Assignment of Error Number Three.

22-KA-373 29 true, complete, and accurate record of the trial. State v. Smith, 54,510 (La. App. 2

Cir. 11/8/23), 2023 WL 7370893. The Article 843 reference to “objections” and

“arguments” generally only applies to objections made in open court and the

arguments of counsel in closing because only those objections and arguments rise

to a level of materiality sufficient to invoke Article 843. Id. Also, Louisiana

Revised Statute R.S. 13:961(C) states, in part, that in criminal cases tried in the

judicial districts, the court reporter “shall record all portions of the proceedings

required by law or the court and shall, when required by law or the court,

transcribe those portions of the proceedings required, which shall be filed with the

clerk of court in the parish where the case is being tried.”

In the instant matter, we find that defendant’s allegations are not supported

in the record. He only refers to his own arguments at the time of his sentencing as

supporting this assignment. We note that each transcript in the case, including the

transcript of closing arguments, bore the certification of the court reporter that a

true and correct transcript of proceedings was made. The transcript of the rebuttal

closing argument flowed in a continuous, normal manner. Nothing in the record

supports defendant’s assertion that the rebuttal closing argument transcript was

altered. As such, we find that this assignment of error lacks merit.

Denial of New Trial: Ineffective Assistance of Trial Counsel

In this assignment of error, the defendant argues that he should be granted a

new trial because his constitutional rights were violated through the ineffective

assistance of trial counsel.16 Defendant specifies five reasons his counsel was

ineffective. First, he asserts counsel was ineffective for not impeaching Malbrough

regarding whether the siren was active despite the defense’s strategy being to

16 Pro Se Assignment of Error Number Four.

22-KA-373 30 prove that the siren was not activated. He argues that in her recorded statement,

she said only the lights were activated. Next, defendant contends that counsel

failed to subpoena a Baton Rouge detective regarding the Baton Rouge burglaries

and that this violated the confrontation clause. He explains that the State said it

would call Baton Rouge detectives to testify but did not. Counsel attempted to

issue an instanter subpoena three days after the trial started. He argues that the

Baton Rouge detective would have testified that the physical evidence contradicted

Ernst’s testimony and explained why the charges were dismissed. He provides that

there was only one suspect in the Baton Rouge burglaries and that because Ernst

confessed, only he committed them.

Further, defendant alleges that counsel was ineffective for failing to produce

defendant’s cell phone or its contents, which he asserts would have produced alibi

evidence. He argues that counsel failed to investigate the evidence. Additionally,

defendant avers that counsel was ineffective for failing to call expert witnesses

concerning the DNA lab reports and findings. He provides that counsel did not

call the reporting scientist regarding the glove found at the house on Ridgeway or

the latent print examiner regarding the print at the house on Marseilles. He argues

that the expert witnesses’ testimony would have exonerated him as the second

suspect because Ernst had already confessed. Finally, defendant contends that

counsel was ineffective by failing to object to Detective DeRoche’s testimony, to

comments made by the prosecutor about the detective’s truthfulness and failing to

have the judge instruct the jury regarding the perjury. He alleges that the detective

also committed perjury at the preliminary examination and lied in the arrest

warrant.

A defendant is entitled to effective assistance of counsel under the Sixth

Amendment to the United States Constitution and Article I, § 13 of the Louisiana

22-KA-373 31 Constitution of 1974. State v. Karim, 19-133 (La. App. 5 Cir. 9/9/20), 302 So.3d

1200, writ denied, 20-1185 (La. 1/12/21), 308 So.3d 713. Under the standard for

ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a conviction must be reversed if the

defendant proves: (1) that counsel’s performance fell below an objective standard

of reasonableness under prevailing professional norms; and (2) counsel’s

inadequate performance prejudiced defendant to the extent that the trial was

rendered unfair and the verdict suspect. Id.

Generally, an ineffective assistance of counsel claim is most appropriately

addressed through an application for post-conviction relief filed in the district

court, where a full evidentiary hearing can be conducted, if necessary, rather than

by direct appeal. State v. Ledet, 20-258 (La. App. 5 Cir. 1/27/21), 310 So.3d 810,

822. This Court has held that ineffectiveness of counsel, relating to trial strategy,

cannot be determined by review of the record on appeal, but rather such a claim

must be asserted by an application for post-conviction relief where the issue can be

considered through an evidentiary hearing, if necessary, to determine, among other

things, the defense strategy and whether the defendant himself was aware of the

strategy and acquiesced in it. State v. Starks, 20-429 (La. App. 5 Cir. 11/3/21), 330

So.3d 1192, 1199.

In the instant case, defendant’s claims raise the issue of counsel’s trial

strategy. Therefore, we decline to address this assignment of error on appeal and

find the matter would be more properly addressed in an application for post-

conviction relief requesting an evidentiary hearing, if warranted.

Denial of Motion for New Trial: Right to Present a Defense Denied

In this assignment of error, defendant argues that he should be granted a new

trial because his right to present a defense was denied when Verizon wireless was

22-KA-373 32 not allowed to authenticate their cell phone records.17 Defendant appears to argue

that the record for his phone shows that his phone was not with Malbrough or at

the burglaries. He contends that the phone records reflect when Malbrough was at

work and when she was home. He states that the phone record is inconsistent with

her testimony that she could pick up work shifts.

Defense counsel argued to the trial court that Malbrough’s Verizon wireless

records were alibi information. The prosecutor interjected that if it was, the

defense did not provide official notice written in the record and that he could not

now call the witness at trial. The judge agreed that the State was not given notice

of an alibi.

Under Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4), the Court may

consider as abandoned any assignment of error or issue for review which has not

been briefed. See also Diaz, supra. Restating an assigned error in brief without

argument or citation of authority does not constitute briefing. Id. (citing State v.

Marie, 07-397 (La. App. 5 Cir. 11/27/07), 973 So.2d 780, 781). As to this

assignment of error, we find that the defendant does not present legal argument and

fails to cite to any legal authority in support of his allegation. Accordingly, we

consider this pro se assignment abandoned.

Denial for Motion for New Trial: Suppression of Exculpatory and Impeachment Evidence

In this assignment of error, defendant argues that he should be granted a new

trial because the State suppressed exculpatory and impeachment evidence.18

Specifically, defendant alleges the State suppressed evidence of Ernst’s 2021 arrest

for possession and criminal trespass, Detective DiGiovanni’s dispatch records and

17 Pro Se Assignment of Error Number Five. 18 Pro Se Assignment of Error Number Six.

22-KA-373 33 reports relating to the aggravated flight, and two cell phones, all of which he

argues are exculpatory and impeachment evidence. Suppression of this evidence,

defendant asserts, violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963), and prevented him from receiving a fair trial.

Defendant filed a pro se Memorandum In Support of Motion for New Trial

nearly one year after his convictions. He argued that new and material evidence

discovered after the trial would probably have changed the verdict. He asserted

that the prosecution intentionally and in bad faith suppressed defense evidence

which exculpated him and would have impeached the testimony of Ernst and

Malbrough, which violated his due process rights and that the judge should grant

him a new trial.

When a motion for new trial pursuant to La. C.Cr.P. art. 851(B)(3) is based

on newly discovered evidence, four requisites must be met: (1) the evidence must

have been discovered since the trial; (2) the failure to learn of the evidence at the

time of trial was not due to defendant’s lack of diligence; (3) the evidence must be

material to the issues at trial; and (4) the evidence must be of such a nature that it

would probably produce an acquittal in the event of a retrial. State v. Nelson, 09-

807 (La. App. 5 Cir. 3/23/10), 39 So.3d 658, 665. Newly discovered evidence

affecting only a witness’ credibility as it is “merely cumulative or impeaching” is

not an adequate basis for the grant of a new trial. See State v. Lyles, 03-141 (La.

App. 5 Cir. 9/16/03), 858 So.2d 35, 52.

On February 15, 2023, the trial judge denied the motion for new trial.

Addressing Ernst’s 2021 offense, the trial judge found that defendant failed to meet

his burden of proof that the information was withheld. The trial judge further

explained that defendant failed to establish materiality of the evidence as the jury

heard testimony of Ernst’s lengthy criminal record. As to Ernst’s 2022 alleged

22-KA-373 34 offense, the trial judge explained that an offense occurring after trial could not

have been impeachment material. As to defendant’s argument about the cell

phones, the judge found that defendant provided no proof and failed to state in

what specific way exculpatory evidence existed. The judge specified that

defendant did not “indicate the technology (text, voice mail, email) or any

approximation of dates of allegedly exculpatory evidence” and that he did not

provide transcripts or extracts of data from the phones. The judge concluded that

the requirements of La. C.Cr.P. art. 851 were not met and that the defendant was

not entitled to a new trial.

A trial court’s ruling on a new trial motion will not be disturbed on appeal

absent a clear showing of an abuse of discretion. Diaz, 331 So.3d at 526. In Brady

v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1196-97, the United States Supreme Court

held that the suppression by the State of evidence favorable to the accused after it

receives a request for it violates a defendant’s due process rights where the

evidence is material to either the guilt or punishment, without regard to the good or

bad faith of the prosecutors. Diaz, 331 So.3d at 528. The State’s due process duty

to disclose applies to both exculpatory and impeachment evidence. Id.

Furthermore, it extends to both late disclosure and/or non-disclosure of favorable

evidence that significantly impacts the defendant’s opportunity to effectively

present the evidence or compromises the trial’s fundamental fairness. State v.

Brown, 16-998 (La. 1/28/22), 347 So.3d 745, 834, cert. denied, -- U.S. --, 143 S.Ct.

886, 215 L.Ed.2d 404 (2023). In order to comply with Brady, “the individual

prosecutor has a duty to learn of any favorable evidence known to the others acting

on the government’s behalf in this case, including the police.” State v. Chester, 19-

363 (La. App. 5 Cir. 2/3/21), 314 So.3d 914, 969, writ denied, 21-350 (La. 6/8/21),

317 So.3d 321.

22-KA-373 35 Nevertheless, not every violation of the broad duty of disclosure constitutes

a Brady violation. Id. Brady and its progeny do not establish a general rule of

discoverability: the prosecutor does not breach the constitutional duty to disclose

favorable evidence “unless his omission is of sufficient significance to result in the

denial of the defendant’s right to a fair trial.” Id. In Strickler v. Greene, 527 U.S.

263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court laid out the three

components of a true Brady violation: “The evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued.” Brown, 16-998, supra.

Such evidence is material “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” State v. Williams, 18-112 (La. App. 5 Cir. 11/7/18), 259 So.3d

563, 575, writ denied, 18-2038 (La. 4/22/19), 268 So.3d 295. A “reasonable

probability” is a probability sufficient to undermine confidence in the outcome. Id.

In Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the

United States Supreme Court made clear that materiality is not determined item by

item but by the cumulation of the suppressed evidence. Thus, even if each item by

itself would not warrant a new trial, the accumulation may. State v. Mangerchine,

11-599 (La. App. 5 Cir. 2/14/12), 88 So.3d 621, 626.

As to defendant’s argument regarding the U.S. Marshal dispatch recording,

he appears to raise this issue for the first time on appeal. Brady challenges, like the

one asserted in defendant’s pro se brief, present fact-based judgments that cannot

be adequately first made on appellate review. State v. Moore, 16-644 (La. App. 5

Cir. 3/15/17), 215 So.3d 951, 966, writ not considered, 18-495 (La. 11/14/18), 256

So.3d 283. Brady challenges must be brought to the trial court’s attention,

22-KA-373 36 winnowed by the trial judge, and made part of the record through a motion for new

trial. Id. Therefore, as to the alleged dispatch records, we find that defendant did

not raise this issue at the trial court level and that, therefore, it has not been

preserved for appellate review.

In review of the record, we find the judge did not abuse his discretion in

denying defendant’s motion for new trial. This assignment of error is without

merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent according to La. C.Cr.P. art.

920;19 State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556

So.2d 175 (La. App. 5 Cir. 1990).

Restriction of Benefits as to Count Five

Having determined that the evidence was sufficient as to count five,

defendant’s sentence on count five for theft is illegal. At the time of the offense,

La. R.S. 14:67(B)(2) stated that when the misappropriation or taking amounts to a

value of five thousand dollars or more, but less than a value of twenty-five

thousand dollars, “the offender shall be imprisoned, with or without hard labor, for

not more than ten years, or may be fined not more than ten thousand dollars, or

both.” Here, as to count five for theft, defendant was sentenced to eight years

imprisonment at hard labor, the first year to be served without the benefit of parole,

probation, or suspension of sentence. The trial judge improperly restricted benefits

and the sentence must be amended.

When a sentencing error involves the imposition of restrictions beyond what

the legislature has authorized in the sentencing statute, the Louisiana Supreme

19 La. C.Cr.P. art. 920(2) states that an error patent is “[a]n error that is discoverable by an inspection of the pleadings and proceedings and without inspection of the evidence.”

22-KA-373 37 Court has ruled that the appellate courts “should not rely on La. R.S. 15:301.1(A)

to correct the error as a matter of law but should correct the sentence on its own

authority under La. C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’”

State v. Thompson, 18-273 (La. App. 5 Cir. 11/28/18), 259 So.3d 1257, 1273, writ

denied, 18-2077 (La. 9/6/19), 278 So.3d 372 (quoting State v. Sanders, 04-17 (La.

5/14/04), 876 So.2d 42 (per curiam)).

Therefore, we amend defendant’s sentence on count five to eliminate the

restriction of parole, probation, or suspension of sentence. Further, we direct the

Clerk of Court for the 24th Judicial District Court to transmit the original of the

corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art.

892(B)(2) and the Department of Corrections’ legal department. See Thompson,

supra; State v. Brown, 17-346 (La. App. 5 Cir. 12/13/17), 234 So.3d 1134, 1137.

Restriction of Parole as to the Enhanced Sentence for Count Ten

Our review also reveals that the trial judge improperly restricted parole as to

the enhanced sentence for count ten. La. R.S. 14:108.1(E)(1) provided at the time

of the offense, “Whoever commits aggravated flight from an officer shall be

imprisoned at hard labor for not more than five years and may be fined not more

than two thousand dollars.” The statue did not call for a restriction of benefits.

Defendant stipulated to being a fourth-felony offender as to count ten. At the time

of the underlying offense, La. R.S. 15:529.1(G) stated that any sentence imposed

under the provisions of this section shall be at hard labor without the benefit of

probation or suspension of sentence. When a defendant is sentenced as a multiple

offender, it is the penalty provision for the underlying offense, La. R.S. 14:108.1 in

this case, that imposes a parole restriction. See State v. Gustave, 22-139 (La. App.

5 Cir. 12/28/22), 355 So.3d 704, 714, writ denied, 23-149 (La. 12/19/23), 2023 WL

22-KA-373 38 8731639. In this case, the underlying offense does not provide for a restriction of

parole.

Therefore, we amend the sentence to delete the restriction on parole in the

enhanced sentence and remand this matter for the correction of the UCO and to

direct the Clerk of Court for the 24th Judicial District Court to transmit the original

of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P.

art. 892(B)(2) and the Department of Corrections’ legal department. See State v.

Burl, 18-698 (La. App. 5 Cir. 10/2/19), 282 So.3d 316, 323, writ denied, 19-1948

(La. 7/2/20), 297 So.3d 764.

Post-Conviction Relief Advisal

The sentencing minute entry for February 7, 2022 reflects that “the Court

informed the defendant he has … two (2) years after judgment of conviction and

sentence has become final to seek post-conviction relief.” The nunc pro tunc

February 10, 2022 sentencing minute entry reflects the same. The transcript does

not show such an advisal.

If a trial court fails to advise, or provides an incomplete advisal, pursuant to

La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the

defendant of the applicable prescriptive period for post-conviction relief by means

of its opinion. State v. Britton, 22-476 (La. App. 5 Cir. 5/10/23), 366 So.3d 652,

665. Accordingly, we hereby advise defendant that no application for post-

conviction relief, including applications which seek an out-of-time appeal, shall be

considered if it is filed more than two years after the judgment of conviction and

sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See

State v. Barnett, 18-254 (La. App. 5 Cir. 4/3/19), 267 So.3d 209, 235.

22-KA-373 39 DECREE

For the foregoing reasons, defendant’s convictions and sentences are

affirmed, except that defendant’s sentences are amended as to count five and count

ten, and the matter is remanded to the trial court for further proceedings.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS FIVE AND TEN AMENDED; REMAINING SENTENCES AFFIRMED; REMANDED

22-KA-373 40 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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