State v. Mitchell

466 So. 2d 514
CourtLouisiana Court of Appeal
DecidedMarch 6, 1985
DocketCR 84-279
StatusPublished
Cited by8 cases

This text of 466 So. 2d 514 (State v. Mitchell) 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. Mitchell, 466 So. 2d 514 (La. Ct. App. 1985).

Opinion

466 So.2d 514 (1985)

STATE of Louisiana,
v.
Grady MITCHELL.

No. CR 84-279.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1985.
Rehearing Denied April 16, 1985.
Writ Denied April 19, 1985.

*515 Linda Veazey, Abbeville, for defendant-appellant.

Louis G. Garrot, Asst. Dist. Atty., Abbeville, for plaintiff-appellee.

Before GUIDRY, FORET and STOKER, JJ.

GUIDRY, Judge.

Defendant, Grady Mitchell, was charged by bill of information with the crime of aggravated burglary, a violation of La.R.S. 14:60. Defendant was tried by a twelve member jury and found guilty as charged by unanimous verdict. On November 21, 1983, defendant was sentenced to fifteen (15) years at hard labor. This sentence was later changed to eighteen (18) years at hard labor after the trial judge questioned defendant as to his prior criminal record. On January 25, 1984, the trial judge found defendant's original sentence to be illegal since the pre-sentence investigation report had been overlooked. After considering the report, defendant was resentenced to serve eighteen (18) years at hard labor. Defendant has appealed his conviction on the basis of six assignments of error.

FACTS

During the early morning hours of August 18, 1982, Mr. and Mrs. Robert Darby, their two minor daughters, and Mrs. Darby's daughter from a previous marriage, were asleep in their home on North Lamar Street in Abbeville. At around one o'clock in the morning, Mrs. Darby was awakened and saw a naked person standing in front of her daughter's bed in the next room. At first, Mrs. Darby thought it was one of her daughters. When the person turned to the side, Mrs. Darby observed that it was, in fact, a man. At this point, Mrs. Darby saw that the man was masturbating with one hand and rubbing her five-year-old daughter with his other hand. Mrs. Darby's thirteen-year-old daughter was asleep in the same bed as the five-year-old. Both girls slept through the entire incident. Mrs. Darby recognized the man as the defendant by his profile. The bathroom light had been left on that night and was shining directly into the bedroom. Mrs. Darby then yelled at the intruder, calling him by defendant's name. The man turned around and directly faced Mrs. Darby and then fled to the living room where he jumped out of a window. Mr. Darby woke up when he heard his wife scream. Mrs. Darby turned to her husband and stated, "that's Ole Grady Mitchell in there playing on Kim." Mr. Darby jumped out of bed and started to run after the man. While doing so, he tripped over a floor fan and was unable to catch or even get a glimpse of the intruder.

Adreama Roach, Mrs. Darby's 17 year old daughter, also identified the intruder as the defendant, Grady Mitchell. When Adreama heard her mother scream, she turned on her bedroom light. As she did so, the man ran straight through her bedroom and into the living room, where she saw him jump through an open window. Mrs. Darby thereafter telephoned the police and reported what had transpired.

Appellant perfected the following assignments of error:

1. The trial court erred in that the State failed to prove beyond a reasonable doubt that the defendant entered the residence with the intent to commit a felony or theft;
*516 2. The trial court erred in that the State failed to prove beyond a reasonable doubt that the defendant committed a battery after entering the residence, as required to justify a conviction of aggravated burglary;
3. The trial court erred in that the State failed to prove beyond a reasonable doubt that the defendant was present in the residence on the night of the alleged burglary;
4. The trial court erred in failing to allow defense counsel to call Adreama Roach, a state witness under cross-examination, and to impeach her prior testimony on direct examination;
5. The trial court erred in failing to adequately consider the sentencing guidelines established by the legislature, and erred in resentencing the defendant to a term longer than that originally imposed by the trial court; and,
6. The trial judge presiding at the preliminary examination erred in re-opening testimony after the matter was argued and submitted.

The defendant has failed to either brief or argue assignment of error number 6. It is therefore deemed abandoned. State v. Washington, 430 So.2d 641 (La. 1983); State v. Simpson, 371 So.2d 733 (La.1979).

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

In his first three assignments of error, defendant contends that the State failed to prove beyond a reasonable doubt certain elements of the offense of aggravated burglary.

La.R.S. 14:60 defines aggravated burglary as follows:

"Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place."

Defendant claims that the State failed to prove that defendant was present at the Darby home on the night of the alleged burglary. At trial, the State presented two eye-witnesses, Mrs. Darby and her 17-year old daughter, Adreama. Both testified that in the early morning hours of August 18, 1982, they saw defendant, Grady Mitchell, in their home. Mrs. Darby recognized him first by his profile and again when he turned and directly faced her before he fled from the house. She testified that she was able to clearly see the defendant due to the fact that the bathroom light was shining directly into her young daughter's bedroom. Adreama testified that she recognized defendant when he ran through her room on his way to the living room. She testified that they almost collided with each other as she was getting out of her bed to investigate her mother's scream. Both Mrs. Darby and Adreama testified that they had known the defendant for about three to four years. He had eaten at their house on several occasions and had mowed their lawn just three days prior to the incident in question.

Defendant had three alibi witnesses testify on his behalf at trial. His grandmother, aunt and girlfriend all testified that defendant was at the grandmother's home all night on August 18, 1982. We have no reason to question the testimony of these three witnesses. But their testimony is totally irrelevant to the case at hand since the crime did not occur on the night of August 18, 1982, but rather during the early morning hours of August 18, 1982. There was absolutely no evidence presented at trial as to defendant's whereabouts at the time the crime was committed.

The standard of review as to the sufficiency of the evidence is whether viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable *517 doubt proof of each element of the crime. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984).

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Bluebook (online)
466 So. 2d 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mitchell-lactapp-1985.