State v. Canova

541 So. 2d 273, 1989 La. App. LEXIS 394, 1989 WL 23222
CourtLouisiana Court of Appeal
DecidedMarch 14, 1989
DocketNo. 88-KA-1101
StatusPublished
Cited by1 cases

This text of 541 So. 2d 273 (State v. Canova) 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. Canova, 541 So. 2d 273, 1989 La. App. LEXIS 394, 1989 WL 23222 (La. Ct. App. 1989).

Opinion

BECKER, Judge.

Mikeal W. Conova, the defendant was charged by bill of information with Illegal possession of stolen things, a violation of L.S.A.-R.S. 14:69. On November 19, 1987, the defendant, having waived his right to trial by jury, was found guilty as charged by the judge. He received a five year sentence which was suspended. He was placed on five years probation, the first year active, the remaining years inactive and to pay a fine of $1,000.00, costs, and other special conditions of probation. From this conviction and sentence the defendant appeals alleging sixteen assignments of error.

FACTS:

On November 8, 1986 a sixteen foot aluminum flat boat with a trolling motor and a 140 horsepower motor belonging to Anthony R. Madere was stolen from his back yard in Donaldsonville, Louisiana. He immediately reported the theft to the Ascension Parish Sheriff’s Office. The next time he saw the boat was in the defendant’s yard in Belle Chasse on January 5, 1987. He called Sheriff Dan Falcon of the Ascension Parish Sheriff’s Office to report his discovery. Falcon contacted Plaquemines Parish Detective James W. Bridges, who interviewed Madere. Bridges and Madere drove by the defendant’s house where Mad-ere pointed out his boat to Bridges. Bridges then returned to the Plaquemines Parish Sheriff’s Office where he made out a search warrant. Madere, Bridges, and two other sheriffs returned to execute the warrant. Madere positively identified the boat as his own based upon various features unique to the boat including a cracked windshield, a trailer scar on the driver’s side, the presence in the boat of his son’s life jacket, which had three snaps instead of the customary two, and the fact that the electrical socket on the bow for the trolling motor had been put in crooked. Interestingly, the serial number on the trolling motor had been scratched out and the boat registration number did not match the number on Madere’s registration card issued to him by the Louisiana Wildlife and Fisheries Department. When questioned about the registration number, the defendant stated that he had put the numbers from a friends boat on his boat. The serial number on the 140 horsepower motor had not been scratched out and was later found to match the number given by Madere to the Sheriff’s Department when the boat was originally stolen and the number of the Bill of Sale of the motor, which Madere gave to the Sheriff after the seizure. The defendant, during the search, said only that he had gotten the boat from his father, Sam Canova. The defendant was arrested and the boat taken into custody. The next day numerous pictures of the boat were taken and the boat returned to Madere.

The defense denied that the boat at issue was the boat stolen from Madere. It contended that the boat belonged to the defendant’s father, Sam Canova, who had loaned it to the defendant. Sam Canova had allegedly acquired ownership of the boat when he took possession of the estate of one John Jones, his business acquaintance. The defense presented several witnesses that testified that the boat at issue looked like the boat that had been on the Jones’ [276]*276property prior to his death. However, these witnesses could not give the type of detailed description of the boat as was given by Madere. Moreover, Canova did not produce any Bill of Sale or other document that would match the registration number or motor serial number of the Jones’ boat to the boat found in the defendant’s yard.

Assignment of Error Number 1

The defendant contends that the trial court erred in refusing to allow him to withdraw his waiver of trial by jury under C.Cr.P. art. 780.

On the morning of trial, after the jury venire had already been brought into the courtroom, the defendant waived his right to trial by jury, ostensibly because all of his witnesses were in court and, if a jury was picked, the jury selection would last all day; consequently, the witnesses would not be called to testify until the second day and they might not be available.

The State, who had thought that the case was to be tried by jury and that jury selection would take up the better part of the day, had its witnesses on stand-by. They were not at the courthouse, so the State moved for a recess until 9:30 a.m. the next day. This motion was strongly contested by the defense. The court granted the recess but ordered the trial to begin at 1:00 p.m. the same day. When the parties convened at 1:00 p.m. the defense informed the court that the defendant had changed his mind and now wanted a jury trial. The defense thus moved to withdraw its previously made waiver of the jury trial. The trial court denied the motion, noting that the jury venire had already been brought to court earlier only to have the defendant waive his right to trial by jury.

C.Cr.P. art. 780(C) provides:

C. The defendant may withdraw a waiver of trial by jury unless the court finds that withdrawal of the waiver would result in interference with the administration of justice, unnecessary delay, unnecessary inconvenience to the witnesses, or prejudice to the state.

It is within the sound discretion of the trial court to determine if the withdrawal will interfere with the administration of justice, cause unnecessary delay, inconvenience the witnesses or prejudice the State.

In this case, the defendant waited until after the jury venire had already been brought into the courtroom to waive his right to trial by jury. He then changed his mind immediately before trial began and after the original venire had been discharged. To allow the withdrawal at that point, would unnecessarily have delayed the trial and inconvenienced the witnesses. The trial court did not, under those circumstances, abuse its discretion. This assignment of error is therefore without merit.

Assignment of Error Number 2

It is alleged in this assignment that there was insufficient evidence to support the conviction.

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). In addition, when circumstantial evidence partly forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1983). The elements must be proven such that every reasonable hypothesis of innocence is excluded. R.S. 15:438. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, supra. The elements [277]*277which must be proven to support a conviction for possession of stolen things is set forth in La.R.S. 14:69 which provides:

A.

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Cite This Page — Counsel Stack

Bluebook (online)
541 So. 2d 273, 1989 La. App. LEXIS 394, 1989 WL 23222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-canova-lactapp-1989.