State v. Hunt

797 So. 2d 138, 2001 WL 1131662
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2001
Docket34,945-KA
StatusPublished
Cited by7 cases

This text of 797 So. 2d 138 (State v. Hunt) 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. Hunt, 797 So. 2d 138, 2001 WL 1131662 (La. Ct. App. 2001).

Opinion

797 So.2d 138 (2001)

STATE of Louisiana, Appellee,
v.
Eric HUNT, Appellant.

No. 34,945-KA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 2001.
Rehearing Denied October 25, 2001.

*140 John M. Lawrence, Shreveport, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler and William J. Edwards, Assistant District Attorneys, Counsel for Appellee.

Before NORRIS, GASKINS and PEATROSS, JJ.

NORRIS, Chief Judge.

Eric Hunt appeals his conviction of simple burglary and sentence as a second felony offender of ten years at hard labor without benefit of probation or suspension of sentence from the First Judicial District Court, Parish of Caddo. For the reasons set forth below, we affirm the conviction and sentence.

Facts

In broad daylight on Saturday, December 12, 1998, Hunt and an associate, broke into a car owned by Sandra McKinney and stole from it several items including a portable CD player. These events occurred in Shreveport, Louisiana, outside of the Hamilton Branch of the Shreve Memorial Library at 2604 Hillcrest Street, shortly before noon. McKinney saw Hunt in the car and watched him remove the CD player. A witness, Steven Nunsant, chased Hunt and watched the police arrest him. McKinney then identified Hunt as the perpetrator.

*141 Defendant appeals and asserts the following assignments of error: the evidence was insufficient, hearsay and opinion evidence were improperly admitted at trial, an excessive sentence was imposed, and his trial counsel was constitutionally ineffective.

Discussion—Sufficiency of the Evidence

Hunt argues as an assignment of error that the trial court erred in not granting his Motion for New Trial and Motion for Post Verdict Judgment of Acquittal or Modification of Verdict. In brief he argues that consideration be given to his medical condition, and that the evidence is only sufficient to maintain a verdict of guilty of attempted simple burglary of a vehicle.

Defendant made a motion for new trial under La. C.Cr.P. art. 851(1), which provides that the court shall grant a motion for new trial whenever the verdict is contrary to the law and the evidence, i.e., that the evidence was insufficient to sustain the conviction. Under this article the trial judge has wide discretion to determine the weight of the evidence. The refusal to grant such a motion is subject to appellate review, only for error of law. State v. Mitchell, 26,070 (La.App.2d Cir.6/22/94), 639 So.2d 391, writ denied, 94-1981 (La.12/16/94), 648 So.2d 387, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

Defendant also made a motion for post verdict judgment of acquittal, which raises the question of sufficiency of the evidence and shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty. La.C.Cr.P. art. 821(B); State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000). In the same motion, defendant suggested in the alternative that the verdict should be amended to a finding of guilty of attempted simple burglary.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La. App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

To convict the defendant of simple burglary, the state had to prove beyond a reasonable doubt that he entered a vehicle without authority and that he did so with the intent to commit a theft or any felony therein. La. R.S. 14:62.

The victim, Sandra McKinney, testified that on the date in question when she went to work at the Hamilton Branch Library her car had no broken windows. When she went out for lunch, she saw the driver's side window was broken, the door was open, and Hunt was leaning across the front seat going through the car's glove compartment. Several items which belonged to McKinney were already on the ground outside the car when she watched Hunt take a Sony Walkman CD player from the car. When Hunt and an associate began to flee the scene, McKinney watched Steven Nunsant run after them. Shortly thereafter, she identified Hunt and *142 his companion at the scene when the police brought them back after a short chase. At trial she testified that Hunt was the person she had seen in her car and that he was there without her authority.

Steven Nunsant testified that, upon arriving at the scene, he saw two persons breaking into McKinney's car. They broke a window on the car and, shortly thereafter, when they fled, Nunsant chased them. Nunsant recognized Hunt, whom he identified by name, because they attend the same church. Nunsant saw the police arrest defendant, and he saw McKinney identify Hunt as the person who broke into her car.

Shreveport Police Officer S.W. Plunkett testified that when he responded to the radio notification of the burglary, Nunsant flagged him down and pointed to where the suspects had run. Plunkett apprehended both men and, with the aid of Detective S.L. Brown, arrested them. Upon returning to the scene, McKinney identified Hunt as the man who had been in her car. Both Plunkett and Brown identified him in court.

The evidence shows Hunt entered the victim's car without authority, intended to steal property from it, and did so. The evidence is sufficient, beyond a reasonable doubt, to support the verdict of guilty of simple burglary. The district court did not err in denying the motions for new trial and for post verdict judgment of acquittal. The assignment of error is without merit.

Hearsay

Hunt argues as an assignment of error that the trial court erred by overruling his objection to hearsay testimony. Specifically, he complains that Sandra McKinney was permitted to refer to a 911 call without the state having established a hearsay exception under La. C.E. art. 803.

The challenged statement was made by Ms. McKinney when she testified that, as she watched the defendant run from her car, someone in the library said they had "911 folks" on the phone. The statement does not contain a statement of fact other than that a 911 operator was on the phone. There was no statement of what the operator said.

The State said it offered the statement not to prove the truth of the matter asserted, but only to show the course of action Ms. McKinney took. The statement also lays the foundation for why the arresting officers arrived at the scene.

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Cite This Page — Counsel Stack

Bluebook (online)
797 So. 2d 138, 2001 WL 1131662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hunt-lactapp-2001.