State v. Thompson

123 So. 3d 360, 13 La.App. 3 Cir. 194, 2013 WL 5539319, 2013 La. App. LEXIS 2049
Louisiana Court of Appeal·Decided October 9, 2013·No. No. 13-194·Published·Cited by 2 cases

Opinion

PICKETT, Judge.

| ¡FACTS

Late in the evening on October 3, 2010, the defendant, Dennis Weldon Thompson, and co-defendant, Gregory Collier, knocked on Rufus and Neva Kelly’s kitchen door. One of the men said that his car had broken down, and he required help. When Mr. Kelly opened the door, one man produced a gun. The two men then forced their way into the house and threatened to harm the couple unless they complied. The two men ransacked the house and took money, Ms. Kelly’s cell phone, and [362]*362Mr. Kelly’s hat. After tying the couple up, they fled the scene.

On December 9, 2010, the defendant was charged by a bill of information with one count of armed robbery, a violation of La. R.S. 14:64, and one count of home invasion, a violation of La.R.S. 14:62.8. A jury trial commenced on August 28, 2012, and on August 29, 2012, the jury returned a guilty verdict of first degree robbery, a violation of La.R.S. 14:64.1, and home invasion.

The defendant was sentenced on December 18, 2012, to forty years at hard labor without the benefit of parole, probation, or suspension of sentence on the conviction for first degree robbery, and twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence on the conviction for home invasion. The sentences were ordered to be served consecutively. Defense counsel filed a Motion to Reconsider Sentence alleging that the sentences were excessive considering the circumstances of the case. The motion was denied without written reasons.

The defendant has perfected a timely appeal, alleging insufficient evidence to sustain the convictions and excessive sentences.

| .ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that there was no direct evidence connecting him with the home invasion and first degree robbery of the Kellys. He points out that neither Mr. Kelly nor Mrs. Kelly identified him as the robber prior to or during the trial. The convictions are based solely on circumstantial evidence. He further asserts that the credibility of two of the state’s witnesses is questionable. Accordingly, the defendant asserts that the evidence was insufficient to sustain the convictions.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

The credibility of a witness is a matter of weight of the evidence, not sufficiency, and determination of the credibility is left to the finder of fact’s sound | (¡discretion and will not be re-weighed on appeal. State v. F.B.A., 07-1526 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, writ denied, 08-1464 (La.3/27/09), 5 So.3d 138.

[363]*363At trial, the following witnesses testified:

Rufus Kelly testified that he was seventy-four years old at the time of the incident. He lived on Kelly Road, in Sabine Parish, about a mile away from BJ’s Grocery on Highway 6. At approximately 11:30 p.m., there was a knock at Mr. Kelly’s kitchen door. Mrs. Kelly had already retired to the bedroom. A man stood outside and, through the door, told Mr. Kelly that his car was broken down in a ditch. When Mr. Kelly opened the door the man charged up the steps, pulled a gun, and shouldered his way into the kitchen. The man jammed the gun under Mr. Kelly’s chin and asked if there was anyone else in the house. He told the man only his wife, who was in the bedroom. He described the man as a dark-skinned black male, and not wearing a mask. The man then pushed him towards the bedroom. When they entered the room, Mrs. Kelly was standing beside the bed with a .22 rifle. The man “got excited and jammed the gun up harder and said, uh, put that gun down, put it down, I’ll kill him, I’ll kill him.” Mrs. Kelly put the gun down.

Mr. Kelly testified that at this point another man came into the bedroom wearing a ski mask and gloves. The first man gave the gun to the masked man. The masked man told the first man to put his mask on, which he did at that time. The two men then marched the couple around the house looking for money. They took Mr. Kelly’s wallet. The first man demanded more money, stating that “I need some ice.” Additional money was taken from a bedroom drawer. They took over two hundred fifty dollars and Mrs. Kelly’s cell phone. The two men tied the couple up with duct tape and fled the house. Mr. Kelly testified that after the men went outdoors, he heard “one say, hey, and that’s when the driver pulls up. You can hear |4the vehicle and they got in it and left.” Mr. Kelly stated that he was never shown a photographic lineup or identified the men for the police. He did not identify the two men at trial as the individuals who perpetrated these offenses.

Mrs. Neva Kelly also testified. Her testimony corroborated her husband’s testimony. She also stated she was never shown a photograph lineup or identified the two robbers. She said she never saw their faces.

The couple was eventually able to free themselves. Upon discovering that their house phone was inoperable, they drove to the sheriffs office to report the robbery.

David Self, a lieutenant with the Sabine Parish Sheriffs Office, investigated the case. He stated that they collected the duct tape used to tie the victims to look for DNA evidence. Lieutenant Self explained that “ice” was the street term for methamphetamine. He also testified that eleven days after the robbery, he was contacted by Chris Miller, a distant neighbor of the Kellys, who told him that he had found Mrs. Kelly’s cellphone alongside the road about one-half mile from the Kellys’ house. He told Mr. Miller to stay right where he was and immediately drove to the location. Lieutenant Self stated that near where the cellphone was found, he located several items that were apparently tossed toward the wooded area: a ski mask, a pillow case, a blue hoodie, and some scrap material. These items were collected to be tested for DNA evidence.

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State v. Thompson, 123 So. 3d 360, 13 La.App. 3 Cir. 194, 2013 WL 5539319, 2013 La. App. LEXIS 2049 (La. Ct. App. 2013).

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