State v. Untereiner

82 So. 3d 425, 11 La.App. 5 Cir. 402, 2011 WL 6413810, 2011 La. App. LEXIS 1521
CourtLouisiana Court of Appeal
DecidedDecember 13, 2011
DocketNo. 11-KA-402
StatusPublished
Cited by3 cases

This text of 82 So. 3d 425 (State v. Untereiner) 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. Untereiner, 82 So. 3d 425, 11 La.App. 5 Cir. 402, 2011 WL 6413810, 2011 La. App. LEXIS 1521 (La. Ct. App. 2011).

Opinion

MARC E. JOHNSON, Judge.

| ¡¿Defendant appeals his conviction for attempted simply burglary from the 24th Judicial District Court, Division “I”. For the following reasons, we affirm the conviction.

STATEMENT OF THE CASE

On March 22, 2010, the Jefferson Parish District Attorney’s Office filed a bill of information charging Defendant, Rodney Untereiner, with one count of simple burglary, a violation of LSA-R.S. 14:62. Defendant pleaded not guilty at arraignment. On May 13, 2010, Defendant filed various pre-trial motions including a Motion to Suppress the Statement(s), Motion to Suppress the Evidence, Rand Motion to Suppress the Identification. On December 1, 2010, the trial court heard and denied Defendant’s Motion to Suppress Identification.1

Defendant proceeded to trial on December 2, 2010 and was found guilty by a six-person jury of attempted simply burglary pursuant to LSA-R.S. 14:27 and 14:62, which is a responsive verdict to the crime of simple burglary. The trial court sentenced Defendant on December 16, 2010, to imprisonment at hard labor for five years. On that same date, the State filed a habitual offender bill of information alleging Defendant was a second felony offender. Defendant stipulated to the second felony offender status. The trial court vacated the underlying sentence and sentenced Defendant as a habitual offender to serve five years without the benefit of probation or suspension of sentence. Defendant also received credit for time served. Defendant filed a timely motion for appeal.

FACTS

The State’s key witness at trial was Mark McCullough, Jr. McCullough testified that on January 80, 2010, he was employed by Bayou Electric. As an employee, Mr. McCullough testified that one of his job duties included conducting a security check of his employer’s Chemtura Plant. McCullough explained to the jury that on the morning of January 30, 2010, he arrived at the Chemtura Plant (“the Plant”) located at Fourth Street, in Harvey, Louisiana, to perform a check of the Plant and bring a box containing a large breaker to the site. McCullough testified the entirety of the Plant property is surrounded by a large gate. Upon unlocking the gate, McCullough proceeded to back his pick-up truck to the loading dock located at the corner of the warehouse. Once parked, McCullough retrieved 14the breaker box and walked inside the Plant’s warehouse where he heard unexpected voices.

[428]*428McCullough further testified that it was around 9:00 a.m. in the morning and, although there was no electrical lighting in the Plant, he could see pretty well because of the daylight shining through the open door. At first McCullough stood still listening to the voices and then turned around to find two white males, approximately 20 feet away, standing in the Plant’s warehouse. The man in the front was wearing a khaki-colored jacket with blue jeans, while the man in the back was wearing a blue jean jacket with blue jeans. McCullough noticed that the man who wore the khaki-colored jacket had a reel of copper wire in his hand. McCullough did not recognize these two males. McCullough attempted to scare the men off by slamming the box he had in his hands on the ground. It was at this time that the two men looked up, threw the copper wire down, and ran through the warehouse’s side exit. McCullough then went back to his truck and began to follow the men along the Plant’s fence line.

According to McCullough, the two men went outside of the warehouse and began walking along the inside of the fence while McCullough followed along the outside of the fence in his truck. While in his truck, McCullough called his supervisor, Brian Newberry, to report the incident. McCullough confirmed that the two males he saw inside the building were the same men he was following along the fence line. McCullough testified that he had a good visual of the two men because the fence was a chain-link fence. He then proceeded to follow the two men until they climbed through a hole that had been cut in the fence. At this time, McCullough parked his truck, got out, and waited for the men to come through the ditch so he could confront them on top of the railroad tracks.

|5When the two men came up to the railroad tracks, McCullough asked them to identify themselves and demanded they state their purpose for being at the Plant. The men responded they had been sleeping at the Plant and did not do anything wrong. The two men began walking toward Maple Street, and McCullough followed them on foot. While following the men, McCullough continued to question them about their presence at the Plant to which he received no response. Once on Maple Street, the two men began to approach a house which Defendant claimed was their residence. When asked why he was sleeping at the Plant if he had a home, Defendant attempted to punch McCullough and push him away.

While in front of the house, McCullough decided to call 911 to advise them of his location. While waiting for the police officers to arrive, McCullough followed Defendant from the front yard of the house to the back yard, while the second male stood on the front porch. It was at this time that McCullough lost sight of the second male; however, McCullough testified that he never lost sight of Defendant. McCullough stayed on the phone with the 911 dispatcher until the police arrived.

Prior to the police’s arrival, McCullough testified Defendant jumped a three-foot-tall fence which lead out to Fairmont Street, the street behind Maple. Because the fence was only three feet tall, McCullough was able to maintain a visual on Defendant at all times. Once the police arrived, the responding police officer was able to arrest Defendant on Fairmont Street. McCullough further testified that the second male he had seen with Defendant inside the Plant was never found. However, McCullough did provide the police officers with a description of the second male, which included his approximate [429]*429age, ethnicity, and a description of the clothing he was wearing.

After arresting Defendant, the officer drove him back to the Plant.

| fiMcCullough met the officer back at the Plant with Newberry. While at the Plant, McCullough provided a voluntary statement concerning the incident and also positively identified Defendant as the man he saw in the Plant holding the copper wire. McCullough then testified that, while walking through the Plant with the police officers, a rolled up copper wire left behind by Defendant was found in the exact location where he dropped the wire. Upon further investigation of the building, they also found broken panels, a set of hand tools, a conduit that had been taken off of the wall with the wire stripped out, and a second roll of copper wire upstairs. McCullough stated that when he left the building the night before, the copper wire had not been removed, and the tools were not present. McCullough further testified that, although the copper wiring was never removed from the premises, Defendant was in the Plant on January 30, 2010, without permission, had the copper wiring in his hand, and dropped it when he noticed McCullough in the warehouse.

Brian Newberry, owner of Bayou'Electric and maintenance supervisor of the Plant, also testified on behalf of the State. On January 30, 2010, Newberry received a call from his employee, McCullough, regarding the incident in question. Newber-ry called 911 to report the incident and proceeded to drive to the Plant to assess the situation.

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Cite This Page — Counsel Stack

Bluebook (online)
82 So. 3d 425, 11 La.App. 5 Cir. 402, 2011 WL 6413810, 2011 La. App. LEXIS 1521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-untereiner-lactapp-2011.