State v. Fontenot

618 So. 2d 915, 1993 WL 146153
Louisiana Court of Appeal·Decided April 23, 1993·No. 92 KA 0861·Published·Cited by 12 cases

Opinion

618 So.2d 915 (1993)

STATE of Louisiana,
v.
Vernon L. FONTENOT.

No. 92 KA 0861.

Court of Appeal of Louisiana, First Circuit.

April 23, 1993.

*917 John Schoonenberg, Asst. Dist. Atty., Houma, for plaintiff and appellee, State of LA.

William H. Dunchelman, Office of Indigent Defenders, Houma, for defendant and appellant, Vernon L. Fontenot.

Vernon Fontenot, pro se.

Before WATKINS, CRAIN and GONZALES, JJ.

WATKINS, Judge.

Vernon L. Fontenot was charged by bill of information with two counts of armed robbery, violations of LSA-R.S. 14:64. He pled not guilty and, after trial by jury, was convicted as charged. The court sentenced him on each count to serve a concurrent term of thirty-five years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, and with credit for time served. Defendant has appealed, urging five assignments of error.

FACTS

On September 23, 1988, defendant, Frederick Lewis, and Van Wolfe, III, robbed the employees of two convenience stores in Houma, Louisiana. Prior to planning the robberies, the three men went to Mr. Wolfe's mother's house for Mr. Wolfe to eat supper. Defendant remained in the car. When Mr. Wolfe returned to the car, he showed defendant and Mr. Lewis a gun. Defendant then encouraged the two men (both of whom were still teenagers) to commit a robbery. He told the men, "As *918 young as you all is you all go rob a few stores...." With defendant as the driver, the men rode around until Mr. Wolfe selected a Time Saver store to rob.

At approximately 7:30 p.m., Mr. Lewis and Mr. Wolfe went into the store and played video games. After the other customers left the store, Mr. Lewis walked to the counter. He pointed Mr. Wolfe's gun at the sales clerk and demanded that she give him all the money. The store manager told the clerk to comply with the order. The clerk estimated she gave Mr. Lewis approximately $35.00. During the robbery, Mr. Wolfe stood back and watched. After receiving the money, Mr. Lewis and Mr. Wolfe quickly left the store, ran around the block, and jumped into the car that defendant had waiting for them. The men split the money three ways.

Later, the men decided to commit another robbery. At approximately 9:00 p.m., they went to a different Time Saver. Again Mr. Wolfe and Mr. Lewis went into the store, while defendant waited in the car. After Mr. Wolfe and Mr. Lewis played video games and waited for the other customers to leave the store, Mr. Wolfe pointed the gun at the manager's head and demanded all the money in the cash register. The manager estimated he gave the men approximately $47.00. The men also stole about five or six cartons of cigarettes. As the men ran from the store, Mr. Wolfe fired a shot from the pistol. Mr. Wolfe and Mr. Lewis then ran to a nearby apartment complex as planned, where they escaped by car with defendant as the driver. The license plate number of the getaway vehicle was secured by a passerby who was suspicious that a robbery had occurred. The vehicle was registered to Renetta Fontenot from Jennings, Louisiana. Defendant later was arrested in Jennings.

INTRODUCTION OF OTHER CRIMES EVIDENCE

In assignment of error number one, defendant asserts error occurred when the state questioned Mr. Lewis concerning defendant's use of cocaine and alcohol on the date of the offenses. Defendant admits his trial counsel did not object to the testimony, and he argues counsel was ineffective for failing to object to the testimony.

Frederick Lewis testified as a witness for the state. During his testimony, the state attempted to establish the activities of defendant prior to the robberies, in particular to establish defendant's attempts to convince Mr. Lewis and Mr. Wolfe to commit the offenses. After explaining how the three men got together that day, Mr. Lewis testified that, prior to the robberies, the three men went to a game room and then drove to a particular area of Houma for Mr. Wolfe to purchase some drugs. At about 5:00 p.m., Mr. Wolfe bought cocaine. When the prosecutor asked Mr. Lewis what happened to the cocaine, Mr. Lewis responded that defendant snorted the cocaine. An additional reference to cocaine usage occurred when Mr. Lewis explained the activities of the trio after the first robbery. After splitting the money three ways, the men returned to the game room. Mr. Wolfe bought some more cocaine, which defendant used while in his car.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. McDermitt, 406 So.2d 195, 200 (La.1981). Citing LSA-C.E. art. 404B(1), the state argues defendant's cocaine usage was admissible as an integral part of the offenses and to establish the chain of events which occurred prior to the robberies.

Article 404B(1) of the Code of Evidence authorizes the admission of evidence of other crimes, wrongs, or acts when the evidence "relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." In State v. Brewington, 601 So.2d 656 (La.1992) (per curiam), the Louisiana Supreme Court indicated its approval of the admission of other crimes evidence (under this portion of article 404(B)(1)) "when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it." 601 So.2d *919 at 657. See State v. Dorsey, 593 So.2d 1372, 1375 (La.App. 5th Cir.1992) ("continuous, unbroken sequence"); State v. Prater, 583 So.2d 520, 522-23 (La.App. 3d Cir.1991) ("so nearly connected to the charged offense that the prosecution could not accurately present its case without reference to them"). See also State v. Bland, 419 So.2d 1227, 1230 (La.1982) ("continuous criminal transaction"); State v. Schwartz, 354 So.2d 1332, 1334 (La.1978) ("so closely connected that the indictment or information as to the instant crime is deemed to carry with it notice as to the other crime as well") (quoting G. Pugh & J. McClelland, Evidence, 35 La.L.Rev. 525, 527 (1975)); G. Pugh, et al, Handbook on Louisiana Evidence Law, p. 268, authors' notes no. 6 (1992 ed.).

Under the facts of this case, it is doubtful whether defendant's cocaine usage, especially the usage which occurred prior to the robberies, was an "integral part of the act or transaction." Although Mr. Lewis testified extensively concerning the plans for the robberies, his testimony does not support finding any connection between defendant's cocaine usage and the offenses, other than the events' occurring on the same day. He was not asked if the robberies were committed to secure additional money to purchase cocaine; and his testimony did not imply the robberies were committed for that reason.

However, for the following reasons, we reject the assignment of error. To preserve the right to appeal an erroneous trial court ruling which admits evidence, the objecting party must make a timely objection and state the specific ground of objection. LSA-C.E. art. 103A(1). See also LSA-C.Cr.P. art. 841; State v. Sosa, 328 So.2d 889, 892 (La.1976). Defense counsel did not object to the testimony. Accordingly, defendant is barred procedurally from advancing his claim that the evidence was improperly admitted.

Defendant's argument that trial counsel was ineffective for failing to object also is barred procedurally. The issue of the effectiveness of counsel was not assigned as error.

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