State v. Thomas

948 So. 2d 1151, 2007 WL 163064
Louisiana Court of Appeal·Decided January 24, 2007·No. 41,734-KA·Published·Cited by 21 cases

Opinion

948 So.2d 1151 (2007)

STATE of Louisiana, Appellee
v.
Ricky Wayne THOMAS, Appellant.

No. 41,734-KA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 2007.

*1152 Ricky Wayne Thomas, pro se.

*1153 Louisiana Appellate Project by Laura M. Pavy, for Appellant.

Paul J. Carmouche, District Attorney, for Appellee.

Before BROWN, WILLIAMS and LOLLEY, JJ.

LOLLEY, J.

This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Ricky Wayne Thomas, was convicted of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2. He was sentenced as a fourth felony offender to life imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence. Thomas appeals his conviction and sentence, which we affirm for the following reasons.

FACTS

Thomas was charged by bill of information for simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2. At the trial of the matter, the following facts were adduced.

On the morning of April 15, 2002, Hugo and Angela Bellamy and a friend, Jimmy Moore, returned to the Bellamys' home, and when Hugo entered the house, he noticed a glare coming from a back bedroom. He hollered to his wife, who had remained outside, that someone was in the house. Hugo then encountered an intruder coming out of the back bedroom wearing Hugo's hat on his head. Hugo attempted to grab the intruder; however, he was unable to hold onto him due to an injured left hand. During this time, Angela was standing behind her husband and was able to observe the intruder.

When Hugo and Moore tried to corner the intruder, he claimed to be on drugs and dangerous. Concerned for their safety, the victims decided to let the intruder go. He ran out of and around the house, over a fence and disappeared. Upon searching the house, the Bellamys determined that the intruder had stolen several rings, a necklace, two watches, a gold coin collection and some silver dollars.

The Bellamys made a police report to Officer David Crye of the Vivian Police Department. According to the report, the Bellamys described the perpetrator as a black male of dark complexion, in his early 20's, of stocky build and weighing approximately 200 pounds wearing a red shirt and a ball cap. Officer Crye took the Bellamys' statement and made a list of the items allegedly taken. His investigation did not include dusting for fingerprints.

Approximately one week later, on April 22, 2002, the Bellamys were driving along when Hugo spotted Thomas walking on the street and recognized him as the intruder. He dropped his wife off to keep an eye on Thomas and drove to the police department to report the sighting.

When he returned with Officer Crye, Angela pointed them in the direction which Thomas had walked. Hugo got in Officer Crye's patrol car and they drove around until they spotted Thomas walking down a driveway into a trailer park. Officer Crye stopped Thomas, and while he was doing an initial pat-down of Thomas, Hugo opened the door of the patrol unit and said, "That is him." At this point Thomas struggled free from Officer Crye and ran away. Subsequently, Thomas was arrested by Sergeant Ryan Nelson and K-9 Officer James Rose of the Vivian Police Department.

As stated, Thomas was charged by bill of information with one count of simple burglary of an inhabited dwelling. Following the jury trial, Thomas was found guilty as charged by unanimous verdict. Thereafter, the state filed a bill of information *1154 alleging that this last conviction was Thomas' eighth felony conviction and requested that he be sentenced as a fourth felony habitual offender. The adjudication hearing, adjudication, and sentencing all took place on January 19, 2006. At the beginning of that hearing, the defense filed a motion for post-verdict judgment of acquittal. After brief argument, the motion was denied.

During the habitual offender proceeding, the state presented the following evidence:

• Proof of guilty plea actually taken on February 5, 1992, to an October 16, 1991, simple burglary (Docket # 156,733 of the First JDC), relative to which Exhibit S-2 contains the bill of information with fingerprints of the defendant therein and court minutes;
• Proof of guilty plea taken on September 26, 1994, to an April 16, 1994, simple robbery (Docket # 169,374 of the First JDC), as reflected by Exhibit S-3 containing the bill of information with fingerprints of the defendant therein, court minutes and transcript;
• Proof of guilty plea taken on February 9, 1996, to simple robbery committed on August 17, 1995 (Docket # 176,637 of the First JDC), as reflected by Exhibit S-4 containing the bill of information with fingerprints of the defendant therein, court minutes and transcript;
• Proof of guilty plea taken on August 10, 1999, to simple burglary of an inhabited dwelling committed on July 9, 1999 (Docket # 203,124 of the First JDC), as reflected by Exhibit S-5 containing the bill of information with fingerprints of the defendant therein and court minutes; and
• Fingerprints of Thomas taken in court in the instant matter.

The state presented the testimony of an expert in fingerprint analysis who after comparing the prints on the bills of information from the predicate offenses and comparing them to those of Thomas given in court in this matter concluded that all fingerprints were taken from the same person, i.e., Thomas. The state then requested that the trial court take judicial notice of the conviction of the instant offense of simple burglary of an inhabited dwelling.

The trial court subsequently found Thomas to be a fourth felony habitual offender, sentencing him to serve the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Thomas' timely-filed motion to reconsider sentence was denied, and this appeal ensued.

DISCUSSION

In his first assignment of error, Thomas argues that the evidence of his identification as the perpetrator of the burglary was insufficient to support a conviction for two reasons: (1) the Bellamys' description of the intruder given to the police in the immediate aftermath of the crime lacked particularity; and, (2) the police failed to dust for fingerprints to which Thomas' prints could have been compared. We disagree.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, XXXX-XXXX (La.02/28/96), 668 So.2d 1132. It is the role of the fact finder to weigh the respective credibility of the witnesses and, therefore, an appellate court accords great deference to a jury's decision to accept or *1155 reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App.2d Cir.08/30/02), 827 So.2d 508, writ denied, XXXX-XXXX (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with other evidence, one witness' testimony, if believ

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State v. Thomas, 948 So. 2d 1151, 2007 WL 163064 (La. Ct. App. 2007).

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