State v. Seal

615 So. 2d 939, 1993 La. App. LEXIS 995, 1993 WL 64442
CourtLouisiana Court of Appeal
DecidedMarch 5, 1993
DocketNo. 92 KA 0557
StatusPublished

This text of 615 So. 2d 939 (State v. Seal) 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. Seal, 615 So. 2d 939, 1993 La. App. LEXIS 995, 1993 WL 64442 (La. Ct. App. 1993).

Opinion

LeBLANC, Judge.

Defendants, Louis O. Seal and Clemel Hatcher, were charged by bill of information with taking fish by electric shock (Count 1) and possessing an instrument used in shocking fish (Count 2), in violation of La. R.S. 56:320 C. They pled not guilty; and, after trial by jury, both defendants were found guilty as charged on both counts. For their convictions of taking fish by electric shock (Count 1), both defendants received sentences of ten months in the parish jail. The trial court suspended two months of each sentence and placed defendants on two years supervised probation with general and special conditions of probation. For their convictions of possessing an instrument used in shocking fish (Count 2), each defendant received a sentence identical to the sentence imposed for the conviction of taking fish by electric shock; and the trial court ordered the sentences to run concurrently.1 The defendants have appealed, alleging two assignments of error, as follows:

1. The evidence was insufficient to support the instant convictions.
2. The trial court erred in imposing excessive sentences.

FACTS

Hardy Thomas was employed by the L & L Hunting Club to patrol the hunting lease. This club is located along the Pearl River in Washington Parish. Shortly before dark on the evening of October 21, 1990, Thomas was investigating a strange pickup truck at Mayfield Boat Landing when he heard a boat proceeding up Mayfield Creek. Thomas went down to the area where the boat was parked and observed two men hiding on the bank of the creek behind a large cypress tree. He approached the men, one of whom he recognized as Louis Seal. Thomas had known Seal for approximately twenty years. The other man with Seal was later identified as Clemel Hatcher. On the ground beside Seal and Hatcher was a bucket containing a fish shocking device. Thomas asked the two men what they were doing; but upon looking in the boat and observing several hundred pounds of catfish, he felt he knew the answer. Thomas called to a companion, Willie J. Crain, who remained at the scene and watched the defendants, while Thomas summoned a game warden. Before Thomas left, Seal asked him to let Hatcher go because Hatch-er did not know what he was doing and had never been “telephoning” before. Seal offered to “take the whole blame”, but Thomas refused and left to summon the authorities. Thomas drove a short distance to Merl Carrier’s camp, and Carrier contacted Department of Wildlife & Fisheries agent Wayne Morris.

When Agent Morris arrived at the scene, he took several photographs of the boat and the catfish (State Exhibit 3 in globo), before the fish were released. Agent Morris arrested the defendants and transported [941]*941them to the Bogahisa Jail. Those fish which were already dead were given to charity by Agent Morris and Agent Relton Sumrall.

Subsequently, Mark McElroy, a Wildlife & Fisheries biologist, successfully tested the shocking device at Toledo Bend Fish Hatchery and at the Mississippi River. On both occasions, he used the fish shocking device and battery (State Exhibits 1 and 2) to shock-fish to the surface.

At the trial, Thomas related how he first encountered the defendants on the bank of Mayfield Creek; and he explained the circumstances which led to their arrest. Agents Morris and Sumrall also related their involvement in the arrest of the defendants, the photographing and release of the catfish, and the disposal of the dead fish. Thomas, Morris, and Sumrall testified that the catfish had no holes, scrapes, scratches, marks, or other injuries indicating that they had been caught by legal means. McElroy explained how he successfully tested the fish shocking device on two occasions.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, defendants contend the evidence was insufficient to support their convictions. We note that, in order to challenge these convictions on the basis of insufficiency of the evidence, the defendants should have proceeded by way of a motion for post-verdict judgment of acquittal. See La.C.Cr.P. art. 821. Nevertheless, we will consider a claim of insufficiency of the evidence which has been briefed pursuant to a formal assignment of error. See State v. Tate, 506 So.2d 546, 551 (La.App. 1st Cir.), writ denied, 511 So.2d 1152 (1987).

The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La.C.Cr.P. art. 821; State v. King, 563 So.2d 449, 456 (La.App. 1st Cir.), writ denied, 567 So.2d 610 (1990). The Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. McLean, 525 So.2d 1251, 1255 (La.App. 1st Cir.), writ denied, 532 So.2d 130 (1988).

La.R.S. 56:320 C provides, in pertinent part:

No person shall take fish by means of ... electricity, or any instrument or device capable of producing an electric current used in shocking said fish; ... It shall be unlawful to possess any of the prohibited instruments, weapons, substances, or devices set out hereinabove with the intent to take fish in violation of the provisions of this Section.

In their brief to this Court, the defendants note that no one saw them catching the catfish found in the boat, nor was any proof introduced to establish the ownership of the boat. These assertions are correct. However, we note that defendants also misstate a key fact in their brief. They contend that the exact location of the shocking device was never established because Hardy Thomas could not recall whether it was in the boat or in the bucket on the bank of Mayfield Creek. This assertion is incorrect. While Thomas could not recall whether the battery was inside the boat or the bucket, he testified that the shocking device was inside the bucket, which was on the bank of Mayfield Creek behind a large cypress tree. Defendants were standing behind this cypress tree, and the bucket, was at their feet.

Mark McElroy, a Wildlife & Fisheries biologist, testified that the shocking device was operational. While testing the device, he successfully used it to shock fish to the surface both at the Toledo Bend Fish Hatchery and the Mississippi River.

[942]*942Although this shocking device was made from an electric fence charger, which is by itself a legal device used to produce an electric current in a fence for the purpose of keeping cattle, horses, and other domestic animals away from the fence, State Exhibit 1 clearly was modified for the illegal purpose of taking fish by electric shock, as established by the fact that metal weights were attached to it and it was powered by a marine battery.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Watkins
532 So. 2d 1182 (Louisiana Court of Appeal, 1988)
State v. Greer
572 So. 2d 1166 (Louisiana Court of Appeal, 1990)
State v. Herrin
562 So. 2d 1 (Louisiana Court of Appeal, 1990)
State v. King
563 So. 2d 449 (Louisiana Court of Appeal, 1990)
State v. Latiolais
563 So. 2d 469 (Louisiana Court of Appeal, 1990)
State v. Sepulvado
367 So. 2d 762 (Supreme Court of Louisiana, 1979)
State v. Tate
506 So. 2d 546 (Louisiana Court of Appeal, 1987)
State v. Fraser
484 So. 2d 122 (Supreme Court of Louisiana, 1986)
State v. McLean
525 So. 2d 1251 (Louisiana Court of Appeal, 1988)

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Bluebook (online)
615 So. 2d 939, 1993 La. App. LEXIS 995, 1993 WL 64442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-seal-lactapp-1993.