State v. Winzer

537 So. 2d 765, 1989 La. App. LEXIS 39, 1989 WL 4312
CourtLouisiana Court of Appeal
DecidedJanuary 18, 1989
DocketNo. 20081-KA
StatusPublished

This text of 537 So. 2d 765 (State v. Winzer) 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. Winzer, 537 So. 2d 765, 1989 La. App. LEXIS 39, 1989 WL 4312 (La. Ct. App. 1989).

Opinion

SEXTON, Judge.

The defendant, Arthur Winzer, was charged with three counts of simple burglary. He was convicted following a jury trial and was thereafter given a 24-year sentence as a multiple offender.

Defendant now appeals, setting forth six assignments of error. Finding merit to defendant’s claim of lack of sufficient evidence to convict, we reverse defendant’s conviction.

On October 14, 1986, vehicles belonging to Christy Joseph, Kenneth Snead, and Grayson Keith were burglarized while the vehicles were parked on the business premises of Stone Container in Arcadia, Louisiana. At the time of the burglaries, the owners of the vehicles were on the job at Stone Container.

Mr. Joseph had a .12 gauge shotgun and a .22 caliber semi-automatic rifle stolen from his truck; Mr. Snead had speakers stolen from his vehicle; and Mr. Keith had a Winchester Model 1400 shotgun stolen from his vehicle.

Defendant Arthur Winzer and a co-defendant, Roy Tobin, were arrested and charged with these burglaries. Roy Tobin subsequently pled guilty and was sentenced. He testified at trial on behalf of the defendant.

Laverne Foster, the defendant’s first cousin, testified that the defendant and To-bin came to her house on the night of the burglary at around 10:30 p.m. Ms. Foster testified that she removed a splinter from [766]*766the defendant’s knee and that his leg was scratched. Ms. Foster was outside of her house with Michael “B.B.” Williams when the defendant and Tobin arrived. She further testified that B.B. Williams went to work that night, a fact which was contradicted by other testimony.

On rebuttal, Ms. Foster testified that (contrary to the testimony of other witnesses) the defendant was not at her house playing cards on the evening of the burglaries, and neither was the defendant’s girlfriend. Additionally, Ms. Foster stated that B.B. Williams went to work that night at around 11:30 p.m. Further, she testified that B.B. Williams did not leave the house that night before going to work. Ms. Foster stated that Mr. Williams never spoke to her about any guns, but did mention something to her about going to Bossier to sell some guns on one occasion.

B.B. Williams, Ms. Foster’s boyfriend, testified that he was at Laverne Foster’s house on October 14, 1986, the night of the burglaries, and indicated that this is where he stays most of the time. His testimony implicated Roy Tobin, the previously-pled co-defendant, more than anyone else. He testified that he did not leave home that day, although he may have made a quick trip to the store. He further testified that he did not leave the house on the night of the burglary in the company of Roy Tobin or Arthur Winzer.

Mr. Williams testified that he saw Roy Tobin and Arthur Winzer between 9:30 and 10:00 that night and that they came to Laverne Foster’s house together on foot. He did not, however, see Ernestine Townsend, the defendant’s girlfriend, nor did he see Betty Winzer, the defendant’s mother. (This testimony contradicts testimony from other witnesses.)

Mr. Williams denied any involvement in the burglaries and testified that he worked on the evening of the burglaries. Williams testified that Tobin said that he had gotten the guns out of some trucks by the chicken plant and asked him if he knew anyone who could buy some guns. The defendant was merely standing next to Tobin at the time. He testified that Mr. Tobin asked him to take him to Bossier in order to sell the guns. He said that the defendant was with Tobin, but Mr. Tobin was doing all of the talking. He further testified that it was Tobin who told him where to drive in order to retrieve the stolen articles to take them to sell. At that place, Tobin and the defendant went behind a house, and when they returned Tobin was carrying the guns and the defendant was carrying a small tool box. (None of the victims testified that a tool box was one of the items taken from their vehicle in the instant offenses.)

This group then proceeded to Bossier City, where they picked up someone named “Squirrel.” Squirrel directed them to a trailer in the Tony Lewis Trailer Park, where Tobin and Squirrel exited the vehicle and made contact with a heavyset white male. Tobin, Squirrel, and the heavyset male came out of the trailer and went to the trunk of the vehicle where they reviewed the goods. The white male gave $70 to Tobin for the items. After the sale, Tobin distributed money to everyone in the car.

Mr. Williams indicated he received $15 that was to pay for his gasoline for the trip. He further testified that the defendant received approximately $10, and that the others in the vehicle received varying amounts.

The defendant denied any involvement in the burglary and claimed to have been home with his girlfriend on the night of the burglaries. He acknowledged going with the others when the guns were sold, but that he did not speak with Roy Tobin or B.B. Williams about selling the guns and knew nothing about the guns being stolen. Defendant acknowledged that he received $10 from the sale of the guns and said he thought that they were sold for a total of $70.

Roy Tobin, the previously-pled defendant in the same crimes, testified that the defendant was not present at the time of the burglary or when it was planned, and that Tobin and B.B. Williams, the prosecution’s chief witness, actually committed the burglary. Most of his testimony consisted of a [767]*767description of the events on the evening of the burglaries.

Tobin admitted to being the same Roy Tobin that pled guilty to a prior simple burglary of an inhabited dwelling and also to the three counts of simple burglary for which the defendant was being tried.

Tobin also testified that B.B. Williams worked at ConAgra, a chicken processing plant across from Stone Container (the site of the burglaries) and was on vacation at the time that the burglaries were committed. This testimony was in direct contradiction to that of Williams, who testified that he went to work on the evening that the burglaries were committed.

A substantial amount of the testimony focused upon the scenario on the evening of the burglaries, specifically who was gathered at whose house. There are many inconsistencies and discrepancies between the various accounts of who was at various houses playing cards or drinking. Most of these accounts are irreconcilable.

Relevant to the morning that the individuals went to Bossier City to sell the guns, Tobin’s testimony was substantially in agreement with all of the other testimony. However, Tobin testified that the defendant was not present when the swag was sold.

Raymond Gaudet, the personnel director at ConAgra, the employer of B.B. Williams, testified that Williams was on vacation the week of the crime. B.B. Williams’s time-card, Exhibit D-l, substantiated Mr. Gau-det’s testimony. Mr. Gaudet further testified that B.B. Williams did not work at ConAgra while on vacation because his ti-mecard would show that, and it did not.

The defendant assigns six errors, which may be broken down into three categories: sufficiency of the evidence, errors patent, and the excessiveness of the sentence. Because of the result we reach, we only consider the question of the sufficiency of the evidence.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia,

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. Captville
448 So. 2d 676 (Supreme Court of Louisiana, 1984)
State v. Austin
399 So. 2d 158 (Supreme Court of Louisiana, 1981)
State v. Chism
436 So. 2d 464 (Supreme Court of Louisiana, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
537 So. 2d 765, 1989 La. App. LEXIS 39, 1989 WL 4312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-winzer-lactapp-1989.