State v. Holts

525 So. 2d 1241, 1988 WL 49465
CourtLouisiana Court of Appeal
DecidedMay 17, 1988
Docket87 KA 1409
StatusPublished
Cited by42 cases

This text of 525 So. 2d 1241 (State v. Holts) 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. Holts, 525 So. 2d 1241, 1988 WL 49465 (La. Ct. App. 1988).

Opinion

525 So.2d 1241 (1988)

STATE of Louisiana
v.
James Bernard HOLTS.

No. 87 KA 1409.

Court of Appeal of Louisiana, First Circuit.

May 17, 1988.

*1242 Thomas J. Ford, Franklinton, William Campbell, New Orleans, for plaintiff-appellee.

James Looney, Covington, for defendant-appellant.

Before WATKINS, CARTER and FOIL, JJ.

WATKINS, Judge.

James Bernard Holts was charged in a single bill of information with one count of simple burglary, in violation of LSA-R.S. 14:62, and one count of theft of property having a value in excess of $500.00, in violation of LSA-R.S. 14:67. He was tried by a jury, which convicted him as charged on each count. Thereafter, the state filed a bill of information charging that defendant was a multiple offender. After a hearing, the trial court found that defendant was a second felony offender and sentenced him *1243 to serve concurrent terms of ten years at hard labor for the conviction of simple burglary and five years at hard labor for the conviction of theft. Defendant appealed, alleging three assignments of error, as follows:

1. The evidence was insufficient to sustain the conviction.

2. The sentences are excessive.

3. The convictions must be reversed because of error patent on the face of the record.

FACTS

Both offenses occurred on the same evening in Bogalusa, Louisiana. Defendant was charged with the theft of a 1984 Chevrolet Silverado truck belonging to Everett Jenkins and the burglary of an automobile belonging to Shirley Brooks.

Mr. Jenkins testified that, shortly after 10:00 p.m., he parked his truck outside of a lounge named Polo Capo's and went inside to drink a beer. He left the keys inside the truck; possibly, the door was open as well. A shotgun and a box of shells were in the truck. When he returned about ten minutes later, he discovered the truck was missing. After a brief search, the owner of the lounge called the Bogalusa City Police. A description of the stolen truck, including the license plate number, was broadcast to the officers on patrol.

Shirley Brooks testified that she parked her car outside of Graham's Cafe at approximately 2:00 a.m. and went inside for a cup of coffee. When she left the cafe, she was accompanied by two women, Jeanette Starnes and Angela Jones. As she walked out of the cafe, Ms. Brooks saw a medium-sized black male near her car. He jumped up and ran away as the women approached.

Ms. Starnes testified that Angela Jones walked out of the cafe slightly ahead of her. She heard Ms. Jones shout something and saw a black male, who had been at the side of Ms. Brooks's car, jump up and run away. She testified that the man wore dark clothes and a white hat and shoes.

Ms. Jones testified that she saw a light on inside of Ms. Brooks's car and shouted to the others. She related that, after she shouted to the others, a black male jumped up, slammed the car door shut, and ran away. She confirmed Jeanette Starnes's description of the man's attire, adding that the shirt was a short-sleeved tee shirt, possibly dark blue.

Ms. Brooks reported the incident to the police, and Officer Gene Crosby responded to a call. Ms. Brooks told him that a jacket and a carton of cigarettes had been taken from her car. She described the jacket as a maroon windbreaker with a cigarette burn on the left sleeve.

Sgt. Willis Yarbrough testified that he was the officer who responded to the call concerning Mr. Jenkins's truck. Approximately four and one-half hours later (shortly before 3:00 a.m.), he saw the truck parked outside of Graham's Cafe. He notified other officers and parked his patrol car where he could watch the stolen truck. About twenty minutes later, he saw a black male enter the truck. As the man drove off, Sgt. Yarbrough called for assistance, turned on his signal lights, and began to follow the truck. The driver ignored the signal to stop and increased his speed.

Several other officers joined the pursuit. Officer Gene Crosby testified that he followed the stolen truck down a side street after the driver turned off to avoid another police car that was blocking his path. The driver eventually stopped the truck, jumped out, and fled on foot across a vacant lot. Officer Crosby chased the driver, a black male wearing dark clothing and white tennis shoes, across the lot. Officer Crosby related that he shouted at the man to stop, but the man continued his flight. Officer Crosby heard Lt. Denver Penton order the suspect to stop; and he heard two warning shots after the order. He arrived at the scene to find Lt. Penton standing over a black male who was lying on the ground. The man was dressed in the same manner as the person who had jumped out of the stolen truck.

Lt. Denver Penton testified that the suspect surrendered after the warning shots were fired. He identified defendant as that person and further testified that he *1244 had been acquainted with defendant for several years.

Patrol Captain Wayne Kemp searched defendant and found three shotgun shells (similar to those that had been left by Jenkins in the cab of his truck) in defendant's left front pocket. Officers Crosby and Yarbrough searched the truck after it had been towed to the police department's impounding lot. Inside the cab, they found a maroon jacket with a cigarette burn on the left sleeve.

SUFFICIENCY OF THE EVIDENCE

By assignment of error number one, defendant submits that the evidence is not sufficient to sustain the verdict. Defendant admits that the state proved the occurrence of a burglary and a theft. He contends, however, that the state failed to establish that he was the perpetrator.

The proper method to raise the issue of insufficient evidence is by motion for post verdict judgment of acquittal pursuant to LSA-C.Cr.P. art. 821. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). The record does not reflect that defendant made such a motion. Nevertheless, a reviewing court, in spite of defendant's failure to proceed properly, must consider the evidence to determine whether or not it meets the constitutional standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), now codified in art. 821, when the issue is briefed pursuant to a formal assignment of error. State v. Bell, 442 So.2d 715 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1244 (La.1984). The standard set forth in Article 821 is whether or not, 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 beyond a reasonable doubt. State v. Walker, 447 So.2d 54 (La.App. 1st Cir.1984). Where the key issue is a defendant's identity as the perpetrator, rather than whether or not the crimes were committed, the state is required to negate any reasonable probability of misidentification. State v. Richardson, 459 So.2d 31 (La.App. 1st Cir.1984).

Defendant contends that the evidence was insufficient to prove that he committed the burglary of Ms. Brooks's car because none of the witnesses testified that the man they saw running away from the car carried the items taken from inside the car. He claims, therefore, that it is possible that the women simply startled someone who had been standing near the car and, thus, there was no proof that this man was the same person who had committed the burglary. This argument has no merit. Angela Jones testified that she saw that the light was on inside Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
525 So. 2d 1241, 1988 WL 49465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holts-lactapp-1988.