State v. George

829 So. 2d 440, 2001 La.App. 4 Cir. 1061, 2002 La. App. LEXIS 819, 2002 WL 393956
CourtLouisiana Court of Appeal
DecidedMarch 13, 2002
DocketNo. 2001-KA-1061
StatusPublished
Cited by1 cases

This text of 829 So. 2d 440 (State v. George) 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. George, 829 So. 2d 440, 2001 La.App. 4 Cir. 1061, 2002 La. App. LEXIS 819, 2002 WL 393956 (La. Ct. App. 2002).

Opinion

L STEVEN R. PLOTKIN, Judge.

The defendant’s appeal is based on four assignments of error. The first is whether the evidence presented at trial was insufficient to support the conviction. The next issue is whether the defendant received ineffective assistance of counsel. Another issue is whether the trial court erred in finding the defendant to be a fourth felony offender. The final issue is whether the sentence imposed was excessive. For the reasons that follow, we affirm the decision of the trial court.

PROCEDURAL HISTORY

Michael George was charged by bill of information with two counts of simple burglary. La. R.S. 14:62. He pled not guilty. A six member jury found him guilty as charged as to count one and not guilty as to count two. The State filed a multiple bill to which the defendant pled not guilty. The trial court denied a motion for new trial. The trial court found the defendant to be a fourth offender and sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant filed a motion for reconsideration of sentence which was denied.

STATEMENT OF FACTS

Sergeant Jeffery Vapie testified that on December 18, 1997, at about 11:00 p.m., he was leaving the scene of an unrelated investigation when he heard a | ^burglar alarm go off at a grocery story. Vapie and two other officers stopped and exited their cars. Vapie saw the defendant exiting the [443]*443rear of the Kwik Stop & Save convenience store through a window. Vapie ordered the defendant to stop. The defendant dropped some items, climbed out of the window, got on the roof of a building and ran along the roof to a rear shed. The officers were able to catch the defendant. A red gym bag, a VCR and other items were recovered from the ground where the defendant had dropped the things he had been carrying. Inside the bag were a screwdriver and a cigar box containing $99.65 in coins. The officers also recovered a crowbar that was still attached to the window where the defendant had exited.

Guong Tran, the owner of Kwik Stop & Save, said she had not given the defendant permission to enter the store. She said that a VCR and money were missing from the store. She also stated that a television set and a door had been broken. Tran said this incident was the second time that someone had broken into store.

Sergeant Michael Fejka stated that he was walking his dog at the time of the crime. He saw the defendant in the back of the police car, and identified him as the same man he had seen burglarize the store the previous June. During the incident in June, Sergeant Fejka had struggled with the defendant, but the defendant had escaped.1

ERRORS PATENT

A review of the record shows no errors patent.

| oASSIGNMENT OF ERROR 1

The defendant contends that the evidence was insufficient 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 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.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentia-ry 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.

Simple burglary is the unauthorized entering of any structure with the intent to commit a felony or any theft therein. La. R.S. 14:62. Specific intent may be inferred from circumstances and the defendant’s actions. State v. Smith, 9A-2588 (La.App. 4 Cir. 3/27/96), 672 So.2d 1034. Credibility determinations are within the discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Ves sell, 450 So.2d 938, 943 (La.1984).

|4In the instant case the defendant was seen by the police exiting a store [444]*444through a window that had been broken, carrying items taken from the store. The defendant fled upon seeing the uniformed officer but was quickly apprehended. The evidence was sufficient to support the conviction.

ASSIGNMENT OF ERROR 2

In this assignment of error, the defendant argues that his counsel at trial was ineffective. As noted in State v. Brauner, 99-1954, p. 16 (La.App. 4 Cir. 2/21/01), 782 So.2d 52, 63:

Generally, the issue of ineffective assistance of counsel is a matter more properly raised in an application for post-conviction relief to be filed in the trial court where an evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Sparrow, 612 So.2d 191 (La.App. 4 Cir.1992). Only when the record contains the necessary evidence to evaluate the merits of the claim can it be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Kelly, 92-2446 (La. App.4Cir.7/8/94), 639 So.2d 888, writ denied 94-2087 (La.1/6/95), 648 So.2d 921. The present record is sufficient to evaluate the merits of defendant’s claim.
Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that his counsel’s performance was deficient and that deficient performance prejudiced him. With regard to counsel’s performance, the defendant must show that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed by the Sixth Amendment. As to prejudice, the defendant must show that counsel’s errors were so serious as to deprive the defendant of a fair trial, i.e. a trial whose result is reliable. Id., 466 U.S. at 687, 104 S.Ct. 2064. Both showings must be made before it can be found that the defendant’s conviction resulted from a breakdown in the adversarial process that rendered the trial result unreliable. Id. A claim of ineffective assistance may be disposed of on the finding that either of the Strickland criteria has not been met. State v. James, 555 So.2d 519 (LaApp. 4th Cir. 1989), writ denied 559 So.2d 1374 (La. 1990). If the claim fails to establish either prong, the reviewing court need not address the other. Murray v. Mag-gio, 736 F.2d 279 (5th Cir.1984).

If an error falls within the ambit of trial strategy, it does not establish ineffective assistance of counsel. State v. Bienemy, 483 So.2d 1105 (La.App.

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Bluebook (online)
829 So. 2d 440, 2001 La.App. 4 Cir. 1061, 2002 La. App. LEXIS 819, 2002 WL 393956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-george-lactapp-2002.