State v. Foster

647 So. 2d 1224, 1994 WL 687397
Louisiana Court of Appeal·Decided December 9, 1994·No. 26143-KA·Published·Cited by 15 cases

Opinion

647 So.2d 1224 (1994)

STATE of Louisiana, Appellee,
v.
Joseph FOSTER, Jr., Appellant.

No. 26143-KA.

Court of Appeal of Louisiana, Second Circuit.

December 9, 1994.
Rehearing Denied January 19, 1995.

*1226 Joseph Foster, Jr., in pro. per.

Richard Ieyoub, Atty. Gen., Baton Rouge, James M. Bullers, Dist. Atty., Minden, for appellee.

Before SEXTON and NORRIS, JJ., and PRICE, J. Pro Tem.

PRICE, Judge Pro Tem.

The defendant, Joseph Foster, Jr., was charged with one count each of armed robbery, second degree kidnapping and aggravated kidnapping, violations of LSA-R.S. 14:64, 14:44.1 and 14:44 respectively. After a jury trial in which he represented himself, he was found guilty as charged. The trial court then sentenced him to life imprisonment for the aggravated kidnapping offense, fifty years imprisonment for the armed robbery offense, and forty years imprisonment for the second degree kidnapping offense. The defendant, pro se, appealed both his conviction and sentence. We affirm.

The defendant assigns one hundred and eight assignments of error as the basis of this appeal. In the published portion of this opinion, we address the assignments of error relating to the sufficiency of the evidence and pre-trial disclosure of alibi witnesses. In an unpublished appendix which comprises part of the official record in this case, we address the defendant's other assignments of error, which, in our opinion, do not merit publication because they involve legal issues governed by established principles of law.

FACTS

On July 20, 1992, at approximately 12:30 a.m., a man wearing a ski mask and gloves robbed the Exacta Inn Motel in Minden, Louisiana, at gunpoint. At the time, Walter Kilgore was on duty as the motel's night manager. After forcing Kilgore to give him money from the cash register, the man forced Kilgore to leave the motel with him and walk toward Interstate 20. After they walked a short distance, the man released Kilgore. Kilgore then walked back to the motel, called the police, and gave them a description of his assailant.

Within minutes after Kilgore called the police, Officers Hank Haynes and Harold Robinson arrived at the scene. They immediately began searching the area, and Officer Robinson noticed a man fitting the robber's description walking across Highway 7. The two officers then drove toward the man, and, as he began fleeing across a field, they ordered him to stop. They shined bright lights on him, and, as he crossed a fence to escape into some woods, he looked back at the officers. He was not wearing a ski mask, and Officer Robinson saw his face. Once he disappeared into the woods, Officers Haynes and Robinson waited for a team of bloodhounds before beginning a manhunt.

At approximately 5:45 a.m. that same morning, Delbert McCrary was parked in Hamburger Happiness' parking lot which is located in Dixie Inn, Webster Parish, Louisiana, approximately three miles from the Exacta Inn Motel. McCrary was sitting in the driver's seat of his truck waiting for his car pool. His door was open. Without warning, a man appeared and stuck a gun to McCrary's side and told him to move over. *1227 McCrary identified that man as the defendant.

The defendant then drove McCrary to a wooded area in Bossier Parish, Louisiana. He assured McCrary that as long as he cooperated, he would not get hurt. He ordered McCrary out of the truck and told him that he had to tie him up so he would have enough time to escape. The defendant used the victim's shoe strings, a long-sleeved shirt and the truck's seat belts to tie McCrary's hands and feet. Then, while standing behind McCrary and gagging McCrary's mouth with a piece of the shirt, the defendant stabbed McCrary in the back. After that, the defendant got into the truck and attempted to run over McCrary. When the truck hit McCrary, it allowed him to free one of his legs. McCrary then escaped to a nearby home and called the police.

At approximately 9:00 a.m., a fresh team of bloodhounds was called out to the Bossier Parish area to continue the manhunt. Two hours later, they found the defendant hiding in a densely wooded area. He had partially covered himself with pine straw. A gun was found lying by his side.

DISCUSSION

SUFFICIENCY OF THE EVIDENCE

Assignment of Error No. 10:

First, we address the defendant's sufficiency of the evidence claim. State v. Hearold, 603 So.2d 731 (La.1992). He claims the state did not present sufficient evidence to support his conviction, and, thus, the trial court erred in denying his motion for post verdict judgment of acquittal.

LSA-C.Cr.P. Art. 821 B provides that a motion for post verdict judgment of acquittal shall be granted only if the court finds the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty. That is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App.2d Cir.), writ denied, 604 So.2d 973 (La.1992).

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of 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. State v. Bellamy, 599 So.2d 326 (La. App.2d Cir.), writ denied, 605 So.2d 1089 (La.1992).

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 the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Lott, 535 So.2d 963 (La.App.2d Cir.1988).

In the instant case, the defendant was convicted for the armed robbery of Walter Kilgore at the Exacta Inn Motel, the second degree kidnapping of Walter Kilgore, and the aggravated kidnapping of Delbert McCrary. Regarding the armed robbery and second degree kidnapping convictions, those two crimes occurred at the same time and place. Therefore, we review those offenses for sufficiency of the evidence together.

Armed Robbery and Second Degree Kidnapping Convictions

The state can prove the defendant committed an act of armed robbery by showing that he took something of value belonging to another from the person of another or that was in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. State v. Brown, 618 So.2d 629, 636 (La.App.2d Cir.), writ denied, 624 So.2d 1222 (La.1993); LSA-R.S. 14:64. Also, the state can prove the defendant committed an act of second degree kidnapping by showing that he forcibly seized and carried a person from one place to another, while armed with a dangerous weapon. LSA-R.S. 14:44.1 A(5) and B(1). See *1228 State v. Arbuthnot, 625 So.2d 1377, 1383-84 (La.App. 1st Cir.1993).

At trial, the Exacta Inn Motel's night manager, Walter D. Kilgore, testified that a masked man

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