State v. Burns

32 So. 3d 261, 2010 La. App. LEXIS 127, 2010 WL 364215
CourtLouisiana Court of Appeal
DecidedFebruary 2, 2010
Docket44,937-KA
StatusPublished
Cited by13 cases

This text of 32 So. 3d 261 (State v. Burns) 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. Burns, 32 So. 3d 261, 2010 La. App. LEXIS 127, 2010 WL 364215 (La. Ct. App. 2010).

Opinion

WILLIAMS, J.

liThe defendant, Charles Oliver Burns, was charged by bill of information with two counts of simple burglary, in violation of LSA-R.S. 14:62, and one count of attempted simple burglary, in violation of LSA-R.S. 14:62 and 14:27. Following a jury trial, he was convicted of one count of simple burglary and two counts of attempted simple burglary. The defendant was sentenced to serve twelve years in prison at hard labor for the simple burglary conviction and six years at hard labor for each of the attempted simple burglary convictions. The sentences were ordered to be served consecutively. The defendant now appeals. For the reasons set forth herein, we affirm.

FACTS

On September 7, 2007, at approximately 12:15 a.m., Teresa Thomas, the manager of the Valero convenience store located at 8800 Jewella Avenue in Shreveport, Louisiana, was notified that the store had been burglarized. Thomas arrived at the store and noticed that the window of the store had been broken and a tray of cigarettes had been taken. Thomas had the store window temporarily covered with plywood and left. The video surveillance tape showed a red or maroon Ford Escort drive up to the store and glass was heard shattering. A black male, wearing a long sleeved white shirt, gray and black vest, dark pants, dark shoes, a watch on his left *266 wrist and a dark cloth or t-shirt tied over his face, was seen entering the store, running behind the counter, removing a tray of cigarettes and leaving the store with the tray.

At approximately 4:10 a.m., on the same date, an attempted burglary |2was committed at another Valero gas station, located at 5454 West 70th Street in Shreveport. Carla Evans, the assistant manager of that location, responded to the call and found that the outer pane of glass was broken but the inner, bullet-proof glass remained intact. No entry had been made. The surveillance video showed a red/maroon Ford Escort and an individual wearing the same clothing shown in the video of the burglary that had occurred at the Jewella Avenue store.

At approximately 4:20 a.m., Thomas was called back to the Jewella Avenue store in reference to another burglary. Thomas reviewed the video surveillance tape and observed a red/maroon Ford Escort drive up outside the entrance. The person entered the store and grabbed another tray of cigarettes. The video of the second burglary showed the offender in the same ear, wearing the same clothes and mask. The person moved away from the view of the cameras and a “crashing” sound was heard.

The Shreveport Police Department (“SPD”) issued a “be on the lookout order” (“BOLO”) for the red/maroon Ford Escort. Approximately four hours after the last burglary, Deputy David Emberton of the Shreveport City Marshal’s office observed a red/maroon Ford Escort. The deputy unsuccessfully attempted to stop the vehicle, and a low-speed chase ensued, ending at the residence of the defendant’s mother. There, the defendant was placed under arrest.

On October 17, 2008, the defendant was charged by bill of information with two counts of simple burglary and one count of attempted simple burglary. Following a jury trial, he was convicted of one count of ^simple burglary and two counts of attempted burglary. The trial court denied the defendant’s motions for new trial and post-verdict judgment of acquittal. The court sentenced the defendant to serve twelve years in prison at hard labor for the simple burglary conviction and six years at hard labor for each of the attempted simple burglary convictions. The sentences were ordered to be served consecutively. Thereafter, the court denied the defendant’s motion to reconsider sentence. The defendant now appeals his convictions and sentences.

DISCUSSION

Sufficiency of the Evidence

The defendant contends the evidence was insufficient to prove, beyond a reasonable doubt, that he committed the offenses. He argues that the state failed to present any physical evidence to connect him to the crimes.

The standard of appellate review for a sufficiency of the evidence claim 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 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03) 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, |4does not provide the appellate court "with a vehicle to substitute its own *267 appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/13/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So.3d 582; State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497.

In cases involving a defendant’s claim that he was not the person who committed the crime, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,-981 (La.App. 2d Cir.5/9/07), 956 So.2d 769.

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Cite This Page — Counsel Stack

Bluebook (online)
32 So. 3d 261, 2010 La. App. LEXIS 127, 2010 WL 364215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burns-lactapp-2010.