State v. Moreau

735 So. 2d 717, 1999 WL 174846
Louisiana Court of Appeal·Decided March 31, 1999·No. 31,879-KA·Published·Cited by 4 cases

Opinion

735 So.2d 717 (1999)

STATE of Louisiana, Appellee,
v.
Jason L. MOREAU, Appellant.

No. 31,879-KA.

Court of Appeal of Louisiana, Second Circuit.

March 31, 1999.

*719 Louisiana Appellate Project by Amy C. Ellender, Mer Rouge, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Brian King, Tommy J. Johnson, Assistant District Attorneys, Counsel for Appellee.

Before WILLIAMS, PEATROSS & KOSTELKA, JJ.

PEATROSS, J.

On July 9, 1998, Defendant, Jason L. Moreau ("Defendant"), was convicted, by a unanimous jury, of criminal damage to property over $500. On July 13, 1998, Defendant filed a motion for post-verdict judgment of acquittal, which was denied by the trial court on July 14, 1998. On that same date, Defendant was sentenced to one year at hard labor; that term was suspended and he was placed on supervised probation for one year. The trial court imposed the special conditions that Defendant serve four days in the parish jail, with credit for time served, and pay $850 in restitution. The trial court also assessed Defendant a $500 fine plus court costs, and in the default thereof, to serve 90 days in jail. For the reasons stated herein, we affirm Defendant's conviction and remand to the trial court for resentencing in accordance with this opinion.

FACTS

On December 26, 1997, at approximately 5:30 a.m., Newton Gillespie ("Mr.Gillespie"), a security guard with Hurrah's casino, observed a male dressed in a dark shirt or jacket throwing neon bulbs off the Texas Street Bridge. Mr. Gillespie was too far away to identify any other features of the perpetrator; but Mr. Gillespie testified that when the perpetrator became aware that he was watching him, the man began walking east on the bridge, toward Bossier City. Mr. Gillespie did not observe anyone else on the bridge. He immediately called the Shreveport Police who were on the bridge within 1½ minutes of the call. Officer J.R. Curtis spotted Defendant walking east, toward Bossier City. Officer Curtis stopped Defendant and questioned him regarding the incident. Officer Curtis testified that Defendant indicated at that time that he had been at Brick Town, a night club in downtown Shreveport, playing pool and that he was walking home, to Haughton. Although he was able to walk, Defendant was visibly intoxicated, with bloodshot eyes and slurred speech. He denied climbing on the bridge and breaking the lights. A few minutes later, Shreveport policeman Corporal C.K. Taylor arrived at the scene to find Defendant already in custody and in the back of Officer Curtis' patrol car.

The officers investigated the area on the bridge and discovered pieces of glass in the vicinity. After arresting Defendant, the officers drove down to the parking lot and investigated the area where the bulbs fell. They discovered several broken neon bulbs on the ground around a vehicle, below the area where the individual was seen throwing the bulbs from the bridge.

Officer Curtis noted in his report that Defendant was wearing a black sweatshirt, blue jeans and work boots that were covered in areas by a gray residue. Testimony at trial was that the gray residue matched the paint on the bridge girders. In addition to the residue, small fragments of glass were found on Defendant's clothing. *720 Photos of Defendant and his clothing, depicting the gray residue, were taken at the City Jail and were introduced by the State at trial. Neither Mr. Gillespie nor Officers Curtis and Taylor could positively identify Defendant as the individual who had been seen throwing the neon bulbs from the bridge.

Sandra Wilemon, of the Shreveport Regional Arts Council, testified that she was in charge of the maintenance of the lights on the bridge. Ms. Wilemon stated that the last time she had inspected the bridge, prior to this incident, she found no broken lights. After learning that some of the bulbs had been broken, Ms. Wilemon inspected the bridge and found several broken lights. She then called Super Neon to inspect and replace the broken bulbs. Her uncontroverted testimony at trial was that the cost of replacing the bulbs, including charges for installation, totaled $844.53.

Defendant testified in his own defense, denying that he had thrown any neon lights from the bridge. He testified that he had been drinking and playing pool all night at Brick Town. Defendant denied that the material on his clothing was from the bridge but, instead, insisted that it was from working on Christmas Day installing and repairing garage doors and from playing pool. Defendant claims he was just in the wrong place at the wrong time.

DISCUSSION

Defendant presents two assignments of error: (1) that there was insufficient evidence to support the jury's verdict, and (2) that the trial court erred in sentencing him, an indigent defendant, to serve jail time in default of paying the ordered fine and costs of $500 and in making payment of restitution a condition of probation.

Sufficiency of the evidence

Defendant was convicted of violating La. R.S. 14:56, which reads in pertinent part:

A. Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.

In his first assignment of error, Defendant asserts that the circumstantial evidence presented at trial was insufficient to prove beyond a reasonable doubt that he was, in fact, the individual who damaged the neon bulbs. Defendant further argues that the State failed to prove that the damages sustained were in excess of $500. We find Defendant's arguments to be without merit on both counts.

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. See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. Circumstantial evidence consists 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. Lilly, 468 So.2d 1154 (La.1985); State v. Turner, 591 So.2d 391 (La.App. 2d Cir.1991), writ denied, 597 So.2d 1027 (1992).

In all cases where an essential element of the crime is not proven by direct evidence, La. R.S. 15:438 applies. As an evidentiary rule, it restrains the fact finder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, *721 431 So.2d 372 (La.1982); State v. Hammontree, 363 So.2d 1364 (La.1978).

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State v. Moreau, 735 So. 2d 717, 1999 WL 174846 (La. Ct. App. 1999).

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