State v. Nelson

518 So. 2d 518, 1987 WL 1250
CourtLouisiana Court of Appeal
DecidedNovember 4, 1987
DocketCR 87-281, CR 87-282
StatusPublished
Cited by4 cases

This text of 518 So. 2d 518 (State v. Nelson) 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. Nelson, 518 So. 2d 518, 1987 WL 1250 (La. Ct. App. 1987).

Opinion

518 So.2d 518 (1987)

STATE of Louisiana
v.
Carl Ray NELSON.

Nos. CR 87-281, CR 87-282.

Court of Appeal of Louisiana, Third Circuit.

November 4, 1987.
Rehearing Denied February 4, 1988.

*520 Richard A. Morton, Nichols & Morton, DeRidder, for defendant-appellant.

William C. Pegues, III, Dist. Atty., DeRidder, for plaintiff-appellee.

Before DOMENGEAUX, DOUCET and LABORDE, JJ.

DOMENGEAUX, Judge.

On September 16, 1986, in criminal proceeding No. CR 87-281, the defendant, Carl Ray Nelson, was convicted of attempted first degree robbery, a violation of La.R.S. 14:27 and 14:64.1. Defendant was subsequently adjudicated as an habitual offender in criminal proceeding No. CR87-282. On January 15, 1987, defendant was sentenced to serve twenty-five years at hard labor, without benefit of parole, probation, or suspension of sentence.

FACTS

On May 5, 1986, at about 10:00 P.M., in DeRidder, Louisiana, defendant, Carl Ray Nelson, entered the Skipper Motel and threatened to shoot Mr. J.S. Patel, the motel's owner and manager, if he did not give him money. Mr. Patel thought the defendant had a gun and was afraid for his life. Mr. Patel described the defendant as wearing shorts and a shirt, and holding something under his shirt which defendant indicated to be a gun. Mr. Patel darted behind a doorway and the defendant left the premises and headed off in the direction of a nearby Charter Food Store. Mr. Patel picked defendant's picture out of a photographic lineup the next day.

Ms. Lou Ellen Taylor, a cashier at the Charter Food Store, testified that at about 10:45 P.M. on May 5, 1986, the defendant entered the Charter Food Store. Ms. Taylor testified that the defendant was wearing shorts and a shirt, made representations like he had a gun under his shirt, and threatened to shoot her if she did not give him money. Defendant was later apprehended and charged by bill of information with three counts of attempted first degree robbery. Two counts were dismissed and defendant was prosecuted for, and convicted of, the attempted first degree robbery of Mr. Patel.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant contends that the trial court erred in admitting evidence of other crimes for which he was not on trial. Defendant argues that the testimony of Ms. Lou Ellen Taylor, regarding the robbery occurring at the Charter Food Store, was immaterial and overly prejudicial.

Ms. Taylor testified that she was a cashier at the Charter Food Store, and that at 10:45 P.M. on May 5, 1986, a black man tried to rob her. Ms. Taylor testified that the robber came into the store, demanded money, and threatened to shoot her if she did not comply. She stated that the robber had his hand under his shirt and she believed he had a gun. Ms. Taylor identified defendant as the robber, and stated that on the night of the crime, defendant wore cut-off jeans or shorts, and a shirt. Finally, Ms. Taylor stated that the Charter Food Store was located just down the block from the Skipper Motel, the scene of the charged crime.

The court held that evidence of this other crime was admissible under La.R.S. 15:446 to prove identity.

La.R.S. 15:446 provides that:
"When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity *521 of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged."

Additionally, in order to be admissible, other crimes evidence must be material to a real and genuine issue, and its probative value must not be outweighed by its prejudicial effect. State v. Prieur, 277 So. 2d 126 (La.1973).

In State v. Ester, 436 So.2d 543 (La. 1983), the defendant was originally charged with two counts of distribution of a controlled dangerous substance, one crime occurring on July 11th and the other on July 17th. The two charges were severed for trial. The defendant gave notice of an alibi defense. The State then gave notice of its intention to introduce evidence of the second offense in order to prove identity and rebut the defendant's alibi. The trial court ruled that this was permissible. After this ruling, the defendant did not present his alibi defense and, on appeal, contended that the evidence of the other crime deprived him of a fair trial.

In determining that evidence of the other crime was admissible, the court stated:

"... when the pattern of two offenses is so identical, the system exception applies if identity of the defendant as the perpetrator is a crucial issue. State v. Banks, 307 So.2d 594 (La.1975). Identity of George Ester was conceded to be the only real issue ... Where identity is genuinely at issue, system evidence has relevance independent of the defendant's criminal propensity and should be admitted with the other test of admissibility. State v. Hatcher, 372 So.2d 1024 (La. 1979)."

Therefore, under Ester, supra, other crimes evidence is admissible to prove identity under La.R.S. 15:446 if identity is an issue, and if the probative value of the other crime outweighs its prejudicial effect.

In this case, like Ester, supra, the defendant was originally charged with multiple robberies. The State dismissed two counts and prosecuted the remaining count, the case at bar. Mr. Patel, the victim of the charged crime testified concerning the identity of the perpetrator. Mr. Patel identified his assailant as a black man in shorts and a shirt who came into his store with what appeared to be a gun under his shirt, and demanded money. Although Mr. Patel picked defendant's photo out of a lineup, at trial he did not identify that photo to be the defendant. On cross examination, Mr. Patel admitted that it took him three or four minutes to pick out the photo, and that he had trouble recalling what his assailant looked like because he had only had a quick look. Therefore, Mr. Patel's testimony did not clearly establish the identity of the robber.

The testimony of Ms. Taylor concerning the attempted robbery of the Charter Food Store, detailed a system of criminal activity almost identical to the attempted robbery of the Skipper Motel. Ms. Taylor stated that her assailant wore shorts and a shirt, held his hand under his shirt, demanded money, and threatened to shoot her if she failed to comply. The Charter Food Store attempted robbery occurred within minutes of the Skipper Motel attempted robbery, and was just a short distance away. Unlike Mr. Patel, Ms. Taylor had no problem identifying the defendant as the perpetrator of the Charter Food Store attempted robbery.

The other crimes evidence here was relevant to the critical issue of the identity of the perpetrator of the crime. The probative value of this evidence outweighed its prejudicial effect.

This assignment of error has no merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, AND 4

By these assignments of error defendant contends that the State presented insufficient evidence to support his conviction because (1) the defendant was never identified in court by the victim of the crime, (2) the State failed to show the victim reasonably believed defendant was armed, and (3) the jury used the other crimes evidence for more than the limited purposes for which it was offered.

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Related

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Cite This Page — Counsel Stack

Bluebook (online)
518 So. 2d 518, 1987 WL 1250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-lactapp-1987.