State v. Cole

649 So. 2d 1214, 1995 WL 36284
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1995
DocketCR 94-1070
StatusPublished
Cited by4 cases

This text of 649 So. 2d 1214 (State v. Cole) 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. Cole, 649 So. 2d 1214, 1995 WL 36284 (La. Ct. App. 1995).

Opinion

649 So.2d 1214 (1995)

STATE of Louisiana, Appellee,
v.
Richard Allen COLE, Sr., Defendant-Appellant.

No. CR 94-1070.

Court of Appeal of Louisiana, Third Circuit.

February 1, 1995.
Rehearing Denied March 17, 1994.

*1216 Monique Yvette Metoyer, Alexandria, for State.

Joseph Richard Kutch, Pineville, for Richard Allen Cole Sr.

Before DOUCET, C.J., and THIBODEAUX and SULLIVAN, JJ.

DOUCET, Chief Judge.

PROCEDURAL HISTORY

On September 14, 1993, defendant was charged by bill of information with one count of theft over five hundred dollars and one count of possession of stolen goods over five hundred dollars. On September 24, 1993, defendant entered a plea of not guilty to all charges. The theft charge was dropped by the state on January 11, 1994. The first trial on the possession of stolen goods charge began on February 22, 1994, with a mistrial based on a hung jury being declared the next day. A new trial was held and on May 18, 1994; the jury found the defendant guilty. Finally, on June 17, 1994, defendant was tried and adjudged a second habitual offender. Defendant was then sentenced to seventy-two months at hard labor without benefit of probation or suspension of sentence. Defendant now appeals alleging three assignments of error.

FACTS:

Defendant Richard Cole and victim Louise Landry met in mid-September of 1992. Subsequent to that meeting, an intimate relationship developed between the two. According to Louise, the relationship became a friendship two weeks after the initial meeting. Richard went to Louise's home on various occasions following the initial meeting. Richard's brother, Clifford, accompanied Richard to Louise's on two or three occasions. Within days or hours following some of the visits, Louise found various items missing from her home, including two rings, some silverware, a handgun, tools and a toolbox. The items became missing at different times over a period of several months. Louise wrote Richard a letter asking him to return the rings and the pistol; one of the rings was then mailed to her. The pistol was returned to her by being placed under a bush outside her house. The silverware and the tools were never retrieved.

ERRORS PATENT:

La.C.Cr.P. art. 920 provides as follows:

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

A review of the record reveals one error patent. It concerns defendant's habitual offender hearing. Defendant admitted his guilt as a habitual offender. Under La. R.S. 15:529.1(D)(1) and State v. Walker, 432 So.2d 1057 (La.App. 3 Cir.1983), he should have been informed of his right to remain silent and have the state prove its case. In Walker, supra, the trial court's failure to comply with La.R.S. 15:529.1(D)(1) resulted in this court's remand of the case for another multiple offender hearing. The trial judge failed to do so in this case.

However, the transcript of the hearing reveals that when the court began the habitual offender hearing, the defendant's own attorney inquired of the defendant if he had any objection to admitting that he was the same Richard Cole, Sr. in the prior proceedings which formed the basis of his "habitual offender" status. The defendant stated that he had no objection to such admission.

Moreover, if evidence is introduced to establish the prior convictions, the error is not reversible. State v. Mallett, 552 So.2d 28 (La.App. 3 Cir.1989), writs denied 556 So.2d 1258 and 558 So.2d 567 (La.1990). In the case sub judice, evidence was introduced of Cole's prior convictions. The state introduced certified copies of various convictions, and the court accepted one from Catahoula Parish. Defense did not object to the validity of the conviction. Because evidence was introduced to establish the prior conviction, the trial court's failure to comply with La. R.S. 15:529.1(D)(1) does not require remand of the case. Defendant was properly sentenced *1217 after being correctly adjudged a multiple offender.

ASSIGNMENT OF ERROR NO. 1:

By defendant's first assignment of error, he claims insufficiency of the evidence. As to appellant's argument that the verdict is not supported by the evidence adduced, it is well settled that when the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, supra, citing State v. Richardson, 425 So.2d 1228 (La. 1983).

In order for the state to obtain a conviction, it must prove all the elements of the crime beyond a reasonable doubt. Defendant was charged with possession of stolen goods over five hundred dollars, a violation of La.R.S. 14:69(A) and (B)(1), which read:

A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. [and]
B. (1) Whoever commits the crime of illegal possession of stolen things, when the value of the things is five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

The elements of the crime are: 1) intentional possessing, procuring, receiving or concealing, of 2) anything of value, 3) which has been the subject of any robbery or theft, 4) where circumstances indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses and 5) the value of the items stolen exceeds five hundred dollars. Defendant claims the evidence was lacking to satisfy most of the elements. Our review of the trial transcript, including the various witnesses' testimonies indicates otherwise.

Detective Keith Perkins of the Rapides Parish Sheriff's Office testified he interviewed the victim Louise Landry and Clifford Cole, brother of the defendant Richard Cole. Perkins said that both of them were sober and were able to readily answer questions posed to them.

Clifford Cole, who was called by the state, identified the defendant as his brother, Richard Cole. Clifford stated that he went to Louise Landry's home on only two or three occasions, and that he was with his brother Richard on all of the visits. Clifford testified that while he had access to all the rooms in her house during visits, he only went into the den, the bathroom and the spa.

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Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 1214, 1995 WL 36284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cole-lactapp-1995.