State v. Bailey

115 So. 3d 739, 2013 WL 1976262, 2013 La. App. LEXIS 933
CourtLouisiana Court of Appeal
DecidedMay 15, 2013
DocketNo. 48,042-KA
StatusPublished
Cited by2 cases

This text of 115 So. 3d 739 (State v. Bailey) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bailey, 115 So. 3d 739, 2013 WL 1976262, 2013 La. App. LEXIS 933 (La. Ct. App. 2013).

Opinion

PITMAN, J.

| defendant, Gary Anthony Bailey, Jr., was found guilty by a jury of simple bur[742]*742glary, a violation of La. R.S. 14:62. A presentence investigation was ordered and Defendant was sentenced to serve ten years at hard labor with credit for time served. This appeal followed. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

Defendant was charged by bill of information with the September 23, 2011 simple burglary of a vacant mobile home owned by David Horton (“Horton”), located in Pecan Valley Mobile Home Park on Barks-dale Boulevard in Bossier City. There were two eyewitnesses to the crime and Defendant was apprehended in a nearby field by K-9 search shortly after the incident.

At trial, Tracy Bailey (“Tracy”) (no relation to Defendant) testified first on behalf of the state. Tracy and his girlfriend, Kristine Doss (“Kristine”), live in the mobile home park where the burglary took place and were coming home from a friend’s house shortly before midnight on September 23, 2011. Tracy testified that, as they drove into the park, he saw a person walking down the street and toward the vacant mobile home. He and Kristine watched the individual from their front porch. The individual was wearing dark pants or long shorts and a white tank top. Tracy watched the person trying to break the window air conditioning unit out of the front window of the mobile home. He testified that he heard glass breaking and saw the window unit fall into the mobile home. The person then climbed in through the window and, a few minutes later, exited the mobile home through the front door, carrying the window unit. Tracy maintained that the individual entered the mobile home through the window and that he could hear “shifting” while he was inside. According to Tracy, the person was not wearing a shirt when he came out of the mobile home. During this time, Tracy went into his |2mobile home to retrieve his phone to call the police. He came back outside and continued to watch the incident with Kristine.

Tracy further testified that the area close to the mobile home is dark, but there is a street light about 80 feet away. He testified that he saw the person apprehended by police that night. At trial, he positively identified Defendant as the person who stole the window unit.

On cross-examination, Tracy stated that he did not recall seeing any tattoos on the person who committed the burglary.

Kristine corroborated Tracy’s testimony, also positively identifying Defendant as the person she saw steal the window unit. Kristine testified that Defendant was stumbling down the street toward the vacant mobile home. She observed him “messing with” the window unit and she walked to the middle of the street in an attempt to distract him and let him know someone was watching him. Kristine testified that Defendant was unaffected by her presence and she returned to her front porch and told Tracy to call the police. Kristine testified that she saw Defendant push the window unit into the mobile home and crawl inside through the window. She heard a noise from inside the mobile home and then saw Defendant stumble out of the front door carrying the window unit. Kristine described | .-¡Defendant as wearing dark colored pants that were short or very long shorts. She also testified that she observed Defendant after he was arrested that night and she had “no doubt at all. I’m sure it was him.”

On cross-examination, Kristine testified that she saw a second individual, but did not see him interact with Defendant in any way. She also did not notice any tattoos on Defendant.

[743]*743Officer Justin Dunn of the Bossier Parish Sheriffs Office testified regarding the apprehension of Defendant. Officer Dunn was the K-9 handler who responded to the scene with his dog, Tigo. Officer Dunn gave a verbal warning that the dog was going to be released and waited for Defendant to surrender. After several seconds, Tigo was “put on the ground” and Tigo tracked Defendant through a hole in a fence and into a nearby pasture, where Defendant was lying on the ground. Tigo bit Defendant. Officer Dunn and his partner, Officer Eric Sproles, apprehended Defendant and returned with him to the mobile home park.

Tigo then tracked Defendant’s scent to a shed behind a mobile home in the park. Officer Dunn did not search the shed at that time, but made contact with Defendant’s mother, who owned the shed. Officer Dunn testified that Defendant’s mother advised him that Defendant stays in her shed when he is in town and that she signed a consent to search form for the shed. Officer Dunn gave the consent to search form to Sergeant Kenneth Johnson, also with the Bossier Parish Sheriffs Office.

Sgt. Johnson testified that he supervised the officers at the scene and the collecting of evidence. Sgt. Johnson stated that the window unit was |4found in the shed on Defendant’s mother’s property. Sgt. Johnson further testified that Horton was notified and that he spoke with Horton when he arrived at the scene. Horton identified the window unit as his since he recognized some plastic he had left on the cord of the unit.

During the investigation, Officer Sproles acted as Officer Dunn’s backup partner while Officer Dunn handled the K-9. Officer Sproles was the first to see the window unit in the shed following Defendant’s arrest. He testified that Defendant was wearing camouflage pants and no shirt when he was apprehended. Officer Sproles stated that Defendant had numerous tattoos on his arms and body.

Horton provided testimony regarding the window unit and the mobile home. He testified that the mobile home was vacant at the time of the burglary, but had been rented and was to be occupied in “a couple of days.” He had been in the mobile home earlier in the day getting it ready for occupancy and had left at approximately 2:00 p.m. Horton testified that, when he left the mobile home, he locked the deadbolt and the doorknob. When he entered the mobile home after the window unit was stolen, the deadbolt was unlocked, but the doorknob was locked. Horton explained that the deadbolt had a turn lock on the inside and a keyed lock on the outside. The doorknob was self-locking. If it was locked from the inside and the door was then closed, one would be locked out. He also testified that the refrigerator had been pulled out from the wall and turned slightly.

|¡;On cross-examination, Horton testified that there was broken glass around the window, but he did not find any blood around the window or in the mobile home.

The only witness for the defense at trial was Defendant. Defendant described his background and that he had an abusive, alcoholic father and “good old lady” mother. He grew up on Lake Bistineau and dropped out of high school. When asked what he did after high school, he answered, “I went to prison.” Defendant was 43 years old at the time of this offense and described his lengthy felony criminal history, which began when he was 17 years old. He testified that, in 2007, he was convicted of molestation of a juvenile and has a previous conviction for burglary of an inhabited dwelling and an attempted burglary.

[744]*744Regarding the current offense, Defendant admitted that he took the window unit and had the intent to steal it. He testified that he stays in his mother’s shed when he is in town because it bothers her when he drinks. He testified that he knew the former tenants had moved out and he had thought about stealing the window unit earlier in the day.

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Related

State of Louisiana v. Monteco K. Frost
Louisiana Court of Appeal, 2020
State v. Bailey
152 So. 3d 1056 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
115 So. 3d 739, 2013 WL 1976262, 2013 La. App. LEXIS 933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bailey-lactapp-2013.