STATE OF LOUISIANA v. WAYNE NORMAN
NO. 20-KA-142
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
December 30, 2020
MARC E. JOHNSON, JUDGE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-7454, DIVISION “I” HONORABLE NANCY A. MILLER, JUDGE PRESIDING. Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson.
REVERSED AND VACATED, IN PART;
JUDGMENT OF ACQUITTAL RENDERED ON COUNT TWO
MEJ
SMC
FHW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand
Joshua K. Vanderhooft
Rachel L. Africk
COUNSEL FOR DEFENDANT/APPELLANT,
WAYNE NORMAN
Prentice L. White
Defendant, Wayne Norman, appeals his conviction for illegal possession of stolen things valued at less than $1,000 from the 24th Judicial District Court, Division “I“. For the following reasons, we affirm Defendant‘s convictions as to counts one and three. Furthermore, we reverse and vacate Defendant‘s conviction on count two, and enter a judgment of acquittal on count two.
FACTS AND PROCEDURAL HISTORY
On January 18, 2019, the Jefferson Parish District Attorney filed a bill of information charging Defendant with armed robbery of Leonard Richard in violation of
On February 11, 2019, Defendant filed a motion for the appointment of a sanity commission, which was granted by the trial court on February 19, 2019. On April 10, 2019, the trial court held a competency hearing, and Defendant was found incompetent to proceed. On August 28, 2019, another competency hearing was held, after which the trial court found Defendant competent to proceed to trial.2 On October 10, 2019, the trial court heard Defendant‘s motion to suppress evidence and statement, and the motions were denied on that same date.
On October 29, 2019, trial commenced before a 12-person jury and concluded the following day. At trial, Darell Johnson, a mechanic, testified that he was the owner of a 2002 black Ford Escape, bearing Louisiana license plate 242-AYI. Mr. Johnson identified several photographs of his vehicle. He confirmed that his vehicle was stolen on November 14, 2018. At around 7:00 a.m. that day, Mr. Johnson went outside to start his vehicle to allow the car to “warm up” due to the cold weather. When he returned to check on his vehicle, Mr. Johnson discovered that his vehicle was missing.3 Once his vehicle was returned, Mr. Johnson found damage that cost approximately $500 to repair. He estimated that he purchased the car for “between fifteen hundred and two thousand dollars.”4 Mr. Johnson explained that he purchased the vehicle for less than its value because the car “needed some mechanical repairs.” Mr. Johnson testified that the vehicle‘s actual value was more than $5,000.
Deputy Kyle Miller with the Jefferson Parish Sheriff‘s Office (JPSO) testified that he and Deputy Eric Glorioso were involved in a high-speed chase on November 15, 2018. On that day, the officers responded to an alert regarding a stolen vehicle at “Ames and Barataria.”5 Deputy Miller recalled that the vehicle was a black Ford Escape, and they came into contact with it in the afternoon. He initially witnessed the vehicle “traveling south down Ames,” after going through an intersection at “Barataria and Ames.” Deputy Miller verified that the vehicle‘s license plate number matched that of the stolen black Ford Escape.6 At around 11:35 a.m., in a
After traveling on several streets, the vehicle turned at “Eastview,” drove onto a “wet and muddy” canal bank, and subsequently crashed.8 Deputy Miller testified that the vehicle was immovable after the driver lost control of the car and struck a telephone pole. At that point, the suspect, later identified as Defendant, opened the door, stepped out of the car, turned and looked at the deputies, and fled on foot.
During the chase, Deputy Miller observed the vehicle strike another car, drive in the opposite lane of traffic on several occasions, and travel over the speed limit.9 At some point, Deputy Miller also observed a black male reaching under the seat of the vehicle.10 Deputy Miller recalled that the suspect was wearing a white shirt under a “black hoodie,” jeans that were “too big for him,” and a “gym short” under his pants.
Deputy Miller and Deputy Glorioso chased the suspect on foot but lost sight of him after he jumped fences in between Paige Jeanette and Lynnbrook Drive. Afterwards, a perimeter was established in the immediate area. Deputy Miller and other detectives later responded to a 9-1-1 call which was placed from 2485 Lynnbrook Drive. The suspect was located at this residence in an upstairs closet and was detained by the officers. The deputies discovered cash and a clear plastic bag containing “two hearing tools along with a hearing aid battery” in the suspect‘s front pocket. Deputy Miller identified Defendant in open court as the same suspect from earlier that day.11
Deputy Mark Pennison, a former commander in the K-9 division, testified that he was working as a K-9 officer on November 15, 2018. Deputy Pennison testified that he went to a scene in the Woodmere neighborhood after learning that a suspect had fled from a vehicle. Deputy Pennison and his dog began tracking the suspect from the crash site of the vehicle. He entered the back yard of a residence after his dog alerted to a fence at the rear of the Lynnbrook area. Deputy Pennison identified photographs taken of the residence. He noted that there was a “sweater type hat” located in the yard. Deputy Pennison explained that his dog showed interest in a locked sliding glass door at the home. He indicated that the suspect was later apprehended inside of this residence.
JPSO Deputy Damian Laport testified that on November 15, 2018, he was dispatched to the Woodmere area after a suspect fled from the police. After looking over a fence in the area, Deputy Laport
Taijuana Harris testified that on November 15, 2018, she called her fiancé and informed him that someone might be in their home. At around 10:30 a.m. or 11:00 a.m., Ms. Harris noticed that someone might be inside her residence because she heard noises. After learning her fiancé was not home, Ms. Harris checked the bedrooms and opened doors but did not find anyone.13 Her fiancé called 9-1-1 when she continued to hear noises in her home. Ms. Harris testified that the police located a “guy” in her daughter‘s bedroom. She stated that she had not seen the individual before and he did not have permission to be in her home. Ms. Harris confirmed that various items were discovered inside of her family‘s backyard shed and did not belong to them. Ms. Harris later contacted law enforcement because her fiancé‘s pine-green Nike shoes were missing, and an unknown pair of shoes were found in a downstairs closet. It was later discovered that these shoes belonged to Defendant. At the time of the incident, Ms. Harris had nine dogs inside of the home, and she explained that the dogs did not bark. She testified that her fiancé left the back door unlocked after letting their dogs outside.
Kenneth Jefferson testified that on November 15, 2018, he lived with Ms. Harris and their children at 4367 Lynnbrook Drive in Harvey. Mr. Jefferson largely corroborated Ms. Harris’ testimony regarding the events leading him to place the 9-1-1 call.14 He also corroborated her account of discovering his missing shoes and finding an unknown pair of blue shoes in their closet. After looking at his security cameras, Mr. Jefferson verified that the suspect was wearing his shoes when he left the residence.15 Mr. Jefferson testified that the back door was locked before he left the house.
Michael Aicklen, a JPSO crime scene investigator, testified that he was involved in the investigation of different crime scenes on November 15, 2018. Mr. Aicklen testified that he collected a “black hoodie” and a pair of “blue jean shorts” from inside a shed, a “black knit cap” from the back yard, and a pair of blue shoes from inside of the residence.16 He maintained that a loaded firearm was collected at another
At the conclusion of the trial, the jury found Defendant guilty as charged on counts one and three. As to count two, Defendant was found guilty of the lesser and included offense of illegal possession of stolen things with a value of less than one thousand dollars.18,19 On November 4, 2019, the trial court sentenced Defendant as follows: 75 years at hard labor without the benefit of parole, probation, or suspension of sentence as to count one, six months in the Jefferson Parish Correctional Center as to count two, and five years at hard labor as to count three. The court further ordered that all of Defendant‘s sentences be served concurrently. Thereafter, on that same date, the State filed a habitual offender bill of information as to count one, alleging Defendant to be a third-felony offender.20 Defendant denied the habitual offender bill allegations, and the trial court set the habitual offender bill hearing.
On November 6, 2019, a habitual offender bill hearing was held, after which the trial court found that the State presented competent evidence that Defendant was a third-felony offender under
On November 8, 2019, the trial court issued written reasons for judgment regarding
ASSIGNMENT OF ERROR
On appeal, Defendant‘s sole assignment of error alleges the trial court committed reversible error in validating the jury‘s 9-3 verdict on the conviction for count two.
LAW AND ANALYSIS
Jurisdiction of the Court
Defendant seeks to appeal his misdemeanor conviction as to count two for illegal possession of stolen things valued at less than $1,000, in violation of
In the instant matter, Defendant was charged in the same bill of information with armed robbery (count one); illegal possession of stolen things valued at between $5,000 to $24,999 (count two); and aggravated flight from an officer in (count three). Trial commenced before a 12-person jury on October 28, 2019, and concluded the following day. Even though this case involves a misdemeanor conviction, we find that the matter is appealable because Defendant‘s charge as to count two was a felony that was “triable by a jury.” See State v. Armant, 02-907 (La. App. 5 Cir. 1/28/03); 839 So.2d 271, 273 (where this Court noted that although the case involved the defendant‘s misdemeanor convictions, the matter was still appealable because it was triable by a jury); State v. Gaubert, 15-774 (La. App. 4 Cir. 12/9/15); 179 So.3d 982, 987, writ denied, 16-122 (La. 1/23/17); 215 So.3d 681 (the Louisiana Fourth Circuit noted that it had jurisdiction over the defendant‘s appeal from her misdemeanor conviction because the defendant was charged and tried for a felony that was “triable by jury“).
Based on the foregoing, this Court has jurisdiction over the instant appeal from a misdemeanor conviction as to count two.
Sufficiency of the Evidence
Defendant alleges that he was convicted by an unconstitutional 9-3 jury verdict as to count two. Defendant maintains that the trial court “improperly interpreted” the 9-3 jury verdict and subsequently found Defendant guilty of a misdemeanor offense. As to count two, Defendant was charged with illegal possession of stolen things valued at “between $5,000 to $24,999” and was convicted of illegal possession of stolen things with a value of less than one thousand dollars. On appeal, he did not challenge the sufficiency of the evidence used to convict him of the lesser and included offense. However, the Louisiana Supreme Court and this Court have recognized insufficiency of evidence to support a reversal, even where the defendant fails to raise the issue on appeal. State v. Raymo, 419 So.2d 858, 861 (La. 1982); State v. Jackson, 99-1256 (La. App. 5 Cir. 7/25/00); 767 So.2d 848, 852, writ denied, 00-2528 (La. 10/5/01); 798 So.2d 960. In Raymo, the supreme court held that “[b]ecause the state‘s case was devoid of evidence of an essential element of the charged offense. . . defendant‘s conviction and sentence must be set aside . . . regardless of how the error is brought to the attention of the reviewing court.” Raymo, 419 So.2d at 861.
The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the
The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.
It is the role of the fact-finder to weigh the credibility of the witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluation under the Jackson standard of review. Id. at 199-200 (citing, State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04); 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04); 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005)). It is not the function of the appellate court to assess the credibility of witnesses or re-weigh the evidence. Id. at 200 (citing, State v. Marcantel, 00-1629 (La. 4/3/02); 815 So.2d 50, 56; Bailey, supra).
In the instant case, Defendant was charged with armed robbery (count one), illegal possession of stolen things valued at “between $5,000 to $24,999” (count two), and aggravated flight from an officer (count three). Defendant was found guilty as charged on counts one and three, and convicted of the lesser and included offense of illegal possession of stolen things with a value of less than $1,000 as to count two. The record indicates that the initial jury concurrence on counts one and three were unanimous, while count two was 9-3. After further jury deliberations, Defendant was found guilty as charged on counts one and three and guilty of the lesser included offense of illegal possession of stolen things with a value of less than $1,000 on count two. However, defense counsel did not request that the jury be polled, and the trial court stated that “the verdict of the jury is ordered legal and recorded.”
A. Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of a robbery
or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. ***
B.(4) When the value of the stolen things is less than one thousand dollars, the offender shall be imprisoned for not more than six months or may be fined not more than one thousand dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction, he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
There are four essential elements for the crime of possession of stolen things: (1) the item was stolen; (2) the item was of value; (3) the defendant knew or should have known that the property was stolen; and (4) the defendant intentionally possessed, procured, received, or concealed the property.
At trial, Mr. Johnson testified as to his accounts of the morning of November 15, 2018. He further testified as to how he acquired the 2002 black Ford Escape that was stolen from him on that morning and how much he paid for the vehicle. When being questioned about the value of the vehicle, the following exchange occurred:
Q. Okay. Okay. So, Mr. Johnson, with your knowledge of the deal that you were getting and the transaction that you were making, was the value of that car five thousand dollars?
MR. BONIN:
Objection. Opinion testimony. It‘s opinion to the ultimate issue.
THE COURT:
Overruled.
BY MR. VANDERHOOFT:
Q. Do you want me to repeat that, Mr. Johnson?
A. Yeah. Repeat it.
Q. Yes. Since it was your transaction for the vehicle and you knew what deal you were getting and you were going to do the work on the vehicle yourself, right?
A. Yes.
Q. And did you know that the vehicle was worth over five thousand dollars?
A. Yes. That‘s why I bought it.
Q. That‘s why you bought it.
A. Yes.
When the degree of the crime is based on the value of the stolen property possessed, the testimony of the owner is sufficient to establish the value of the stolen property, if it is clear and uncontradicted. State v. Stock, 16-552 (La. App. 5 Cir. 2/22/17); 212 So.3d 1268, appeal after remand, 17-340 (La. App. 5 Cir. 12/13/17); 234 So.3d 1128, citing
Here, Mr. Johnson, the owner of the vehicle, testified generally that the vehicle was worth over $5,000. However, there was no evidence provided to prove the actual value of the vehicle as of the day it was stolen. Thus, the value of the stolen property is not clear in the record. See, Stock, supra. Accordingly, we find that the State failed to present evidence of the value of the stolen property sufficient to prove that Defendant was guilty of illegal possession of stolen things valued at less than $1,000 beyond a reasonable doubt. Therefore, we reverse and vacate the conviction and sentence on count two.
For the foregoing reasons, Defendant‘s conviction and sentence for count two, illegal possession of stolen things valued at less than $1,000, are reversed and vacated, and we enter a judgment of acquittal on count two. Additionally, we affirm Defendant‘s convictions as to counts one and three.
REVERSED AND VACATED, IN PART;
JUDGMENT OF ACQUITTAL RENDERED ON COUNT TWO
SUSAN M. CHEHARDY
CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON
STEPHEN J. WINDHORST
HANS J. LILJEBERG
JOHN J. MOLAISON, JR.
JUDGES
CURTIS B. PURSELL
CLERK OF COURT
NANCY F. VEGA
CHIEF DEPUTY CLERK
SUSAN BUCHHOLZ
FIRST DEPUTY CLERK
MELISSA C. LEDET
DIRECTOR OF CENTRAL STAFF
(504) 376-1400
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
20-KA-142
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 30, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
CURTIS B. PURSELL
CLERK OF COURT
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLEE)
THOMAS J. BUTLER (APPELLEE)
PRENTICE L. WHITE (APPELLANT)
GRANT L. WILLIS (APPELLEE)
MAILED
HONORABLE PAUL D. CONNICK, JR. (APPELLEE)
DISTRICT ATTORNEY
JOSHUA K. VANDERHOOFT (APPELLEE)
RACHEL L. AFRICK (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053
HONORABLE JEFFREY M. LANDRY (APPELLEE)
ATTORNEY GENERAL
LOUISIANA DEPARTMENT OF JUSTICE
1885 NORTH 3RD STREET
6TH FLOOR, LIVINGSTON BUILDING
BATON ROUGE, LA 70802