State v. MacK

715 So. 2d 126, 1998 WL 340424
CourtLouisiana Court of Appeal
DecidedJune 24, 1998
Docket30832-KA
StatusPublished
Cited by12 cases

This text of 715 So. 2d 126 (State v. MacK) 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. MacK, 715 So. 2d 126, 1998 WL 340424 (La. Ct. App. 1998).

Opinion

715 So.2d 126 (1998)

STATE of Louisiana, Appellee,
v.
Judy Ann MACK, Appellant.

No. 30832-KA.

Court of Appeal of Louisiana, Second Circuit.

June 24, 1998.

*127 Indigent Defender Office by David R. McClatchey, for Appellant.

Louisiana Appellate Project by Amy C. Ellender, Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Eron J. Brainard, Tommy J. Johnson, Assistant District Attorneys, for Appellee.

Before MARVIN, C.J., and NORRIS and WILLIAMS, JJ.

MARVIN, Chief Judge.

After being convicted of simple burglary of an inhabited dwelling, Judy Ann Mack appeals her conviction and sentence to two years at hard labor, with one year suspended. La. R.S. 14:62.2 requires at least one year imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Mack was also placed on two years supervised probation and ordered to pay $20 per month to Probation and Parole and $10 per month to the Indigent Defender Board while on probation, or in default thereof, to serve 30 days in the parish jail concurrent with her hard labor sentence.

Mack complains that the evidence is insufficient to support her conviction, her sentence is excessive and the trial court erred in requiring her as an indigent defendant to serve jail time in default of paying court costs.

We affirm the conviction. Because the sentence is not the minimum mandatory sentence and was not imposed in accord with La.C.Cr.P. art. 894.1, we vacate the sentence and remand to the district court for resentencing.

FACTS

On September 27, 1995, a 29-year-old Mack burglarized the home of Mrs. Jessie May Dudley Thomas on Plum Street in Shreveport. Mrs. Thomas was hospitalized at the time. Her nephew had been in the home the night before the burglary and had found everything to be in order. Mack concedes that a burglary was committed, but by a man she named as "Curtis Jones." She had earlier told "Jones" of Thomas's absence from the house. Mrs. Thomas returned to her home the day after the burglary to discover the back door had been forcibly opened and that her lawnmower and new television had been stolen.

Joel Johnson, also a resident of Plum Street, was awakened that morning by the sound of his dogs barking. Going outside to investigate, he observed Mack and a male he could not identify ["Jones"] walking down the street and then stopping at Thomas's house. "Jones" went into Thomas's yard, walked up to her porch, opened a screen door and entered the porch. Although Mack had momentarily been in the yard, she began walking back and forth in front of the house while looking up and down the street.

"Jones" removed a flower pot from the porch and took it to the corner of the street. Knowing Thomas was in the hospital, Johnson became suspicious and called the police. A patrol car arrived and shined a light on the house, but soon departed when nothing appeared amiss. Mack and "Jones" then returned to the scene. As "Jones" went to the back of the house, Mack remained in front of the house, walking up and down the street while looking in all directions. "Jones" kicked open the back door of Thomas's house and removed the lawnmower and television.

Another Plum Street resident, Francis Stinson, called the police around 7:30 that morning. Corporal R.R. Washington of the Shreveport Police Department responded to the call. Washington observed that the back door of the home had been kicked open, the lock on the door broken, and saw a footprint on the door. Washington also noticed that several items of clothing had been thrown on the floor, that a bed had been turned up as if someone had been looking underneath it, and a television was turned over in the living room. Washington also found the flower pot taken from the home at the corner of the street.

*128 Shreveport Police Corporal Riley Young, Jr. interviewed Mack on October 10, 1995 about her involvement in the burglary. This interview was recorded and the recording played at trial. Young told Mack that she would be released on her own recognizance if she cooperated. Mack told Young that she did not go in the house, but admitted she "was the lookout."

Following the prosecution's presentation of its evidence, the defense moved for a directed verdict, which was denied. Mack then elected to testify on her own behalf. Mack said at trial that she had left her boyfriend's home about 2:30 a.m. the date of the burglary and was going to the home of her mother, who lived across the street from Thomas, when she saw "Jones" coming from the back of Thomas's house carrying a lawnmower. Mack said she told "Jones" to return it, then continued home. She did not call the police because she felt it was none of her business. Mack also testified that what she meant when she told Cpl. Young that she was a "lookout" was that:

I was looking at him coming out of her house. I stood up on the corner looking at him coming out of her house with her stuff. That's what I meant. I wasn't his lookout... I just was standing up there looking at him taking that woman's stuff out of her house.
(Record, p. 84)

Mack initially testified that the evening of the burglary was the first time she had ever met "Jones." However, she later testified that she had first met him a week earlier, and at that time told him Thomas was in the hospital.

Mack was arrested on October 10, 1995 for simple burglary of an inhabited dwelling and was found guilty after a bench trial held August 25, 1997.

DISCUSSION

Sufficiency of Evidence

To gain review in the trial court of the sufficiency of the evidence to convict, a defendant "may move for a post verdict judgment of acquittal." La.C.Cr.P. art. 821. The post-verdict motion in the trial court is not, however, a prerequisite to obtain the sufficiency review in the appellate court. The assignment of error of the sufficiency of evidence to convict mandates appellate review exercises his Art. 821 option in the trial court. La.C.Cr.P. art. 920. State v. Green, 28,994 (La.App.2d Cir. 2/26/97), 691 So.2d 1273, J. Hightower concurring.

Here Mack raises the sufficiency of the evidence to convict in her assignments of error to mandate our review. We review the sufficiency assignment before other assignments because acquittal on that assignment makes it unnecessary for us to consider other assignments. The issue is framed whether 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 light most favorable to the prosecution, could reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. See State v. Hearold, 603 So.2d 731 (La.1992).

The Jackson standard of review applies to direct and circumstantial evidence. State v. Wright, 445 So.2d 1198 (La.1984); State v. Neeley, 30,008 (La.App.2d Cir. 12/23/97), 704 So.2d 443. The rule for circumstantial evidence is: Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in direct evidence by viewing the direct evidence in light most favorable to the prosecution.

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Bluebook (online)
715 So. 2d 126, 1998 WL 340424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mack-lactapp-1998.