State v. BlackState v. Black
Lee Cizer Black was found guilty as charged of simple burglary of an inhabitеd dwelling, and sentenced as a second felony offender to eight years at hard labor. On appeal he complains that the evidence adduced at trial was insufficient to support a conviction and that the trial court erred in issuing sentence. For the reasons given, we affirm the conviction, vacate the sentence, and remand for resentencing.
FACTS
During the early morning hours of October 2, 1992, Anna Mae Richardson‘s barking dogs drew her attention to a neighboring home at 7226 Liberty Street, Shreveport, Louisiana. Upon investigating, she noticed three men lurking around a shed in the backyard of the home. She also noticed that the three men crouched down, аs if trying to hide, when an oncoming automobile shined its lights upon them. After the car passed, two of the men left, carrying either a sack or another object which Richardson could not clearly identify.
Richardson, who lived at 7222 Liberty Street, was a personal acquaintance of Sandra Law, who was renting the home at 7226 Liberty Street and was in the process of moving out. Upon observing the suspicious activity at the residence, Richardson reached Law at her mother‘s house by telephone. Law informed Richardson that no one was supposed to be in the house. At Law‘s request, Richardson called the Shreveport Police Department to report thе incident.
When Richardson returned from making the telephone calls, the lights in the kitchen at 7226 Liberty Street, which had previously been off, were on; and she saw a black man removing curtains from the kitchen window.
Shortly thereafter, the police arrived. After conducting a search of the house, they found the defendant, Lee Cizer Black, lying on the floor in a back bedroom acting as if he were asleep. He was arrested and charged with simple burglary of an inhabited dwelling. After trial, a jury convicted the defendant as charged.
The defendant filed a motion for Post-Verdict Judgment of Acquittal, which was denied by the trial court. Therein, the defendant claimed that his conviction should be set aside because the evidence was insufficient to prove beyond a reasonable doubt that: (1) the house at 7226 Liberty Street was inhabited at the time of the incident; (2) the defendant‘s entry into the house was unauthorized; and (3) at the time of entry, the defendant intended to commit either a felony or a theft.
After a sentenсing hearing, the defendant was found guilty of being a second felony
Defendant appeals, complaining that the trial court erred in denying the Motion for Post-Verdict Judgmеnt of Acquittal and the Motion to Reconsider Sentence.
DISCUSSION
SUFFICIENCY OF THE EVIDENCE
In the Motion for Post-Verdict Judgment of Acquittal, the defendant alleged that the prosecution did not present evidence sufficient to support the conviction. The standard of appellate review for a sufficiency of the evidence claim is whether, aftеr 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); and State v. Washington, 606 So.2d 838, 841 (La.App. 2d Cir.1992), writ denied, 612 So.2d 56 (La. 1993). The Jackson standard, now codified as part of
To satisfy the unauthorized entry element, the prosecution must show that the defendant did not have permission to enter the house. Law testified, unequivocally, that she did not give the defendant permission to enter her house, and that she did not give anyone permission to remove things from her house. She clearly still hаd control of the premises. The unauthorized entry element has been satisfied.
To satisfy the intent element, the prosecution must show that the defendant had the specific intent to commit a felony or theft at the time of his unauthorized entry. Specific intent, being subjective in character, need not be proven as a fact аnd may be inferred from the circumstances of the transaction. State v. Burns, 471 So.2d 949, 953 (La.App. 2d Cir.1985). Using an inference to prove an essential element of the crime triggers the use of the circumstantial evidence rule of
The circumstantial evidence rule of
Richardson recalled seeing three men lurking near the neighbor‘s shed, and stated that one of the men appeared to be trying to break into the shed. After telephoning Law and the Shreveport Police Department, which she estimated took approximately five to ten minutes, Richardson saw a man in the house taking down curtains. The other two men walked away, and one of them was carrying a sack or other object. Law testified that property was missing from the house, and that no one was authorized to enter the house. It is reasonable to infer from these circumstances that the man seen in the house taking down the curtains intended to steal them, and that this was his intent when he entered the house.
Shreveport police officers arrived fifteen to twenty minutes after Richardson telephoned the department. They discovered the defendant in a baсk bedroom acting as if he were sleeping. In light of the short period of time between Richardson‘s initial observation of the three men lurking near the shed and the discovery of the defendant lying in the back bedroom, the jury could have reasonably inferred that the defendant was the man that Richardson saw removing the curtains in the kitchen. It is highly unlikely that the house at 7226 Liberty Street would have been the subject of two separate unauthorized entries, by the defendant and another man, on the same night, at the same time.
Defendant claims the evidence fails to exclude a reasonable hypothesis of innocence, namely that he entered the house to seek refuge and to sleep. Relying on Jacobs, supra, he argues that mere presence and hiding are insufficient to indicate an intent to steal. The case at bar is distinct from Jacobs in that there is additional direct evidence that the man in the house was taking down curtains which did not belong to him. Defendant also cites State v. Jones, 426 So.2d 1323 (La.1983), wherein the court found a reasonablе hypothesis of innocence when a “drunk” or “sick” intruder claimed he entered a house to get help for his illness. Again, the case before us is different in that there was no evidence presented to reasonably show that defendant was in the house due to illness or intoxication, or the need to sleep-off any intoxicatiоn. Finally, defendant relies upon State v. Marcello, 385 So.2d 244 (La.1980), wherein the defendant entered a public building to use soap and water to clean up. The court found no proof of intent to steal or commit another felony; however, nothing was missing, except soap and paper towels. In this case, clothing and curtains were missing.
The defendant‘s hypothesis of innocence, that he was seeking refuge and sleep, is not sufficiently reasonable and strong under these circumstances to have led the jury to entertain a reasonable doubt about guilt. Based upon the direct and circumstantial evidence presented, we find that the intent element has been satisfied.
To satisfy thе inhabitation requirement, it is not necessary that a person be present in the dwelling at the time of the unauthorized entry; however, it must be proven that someone was actually “living” in the house at that time. State v. Powers, 344 So.2d 1049 (La.1977); and State v. Hicks, 286 So.2d 331 (La.1973). A house that is lived in only part of the time may be classified as inhabited. See State v. Conn, 420 So.2d 1123 (La.1982); and State v. Mayeux, 556 So.2d 142 (La.App. 5th Cir.1990). Further, a house may be classified as inhabited even though thе person living there does not intend to remain. See Conn, supra; and State v. Surtain, 529 So.2d 1375 (La.App. 5th Cir.1988). To determine whether the house was “lived in” at the time of the unauthorized entry, it is proper to consider whether the occupant deemed the house to be her place of abode and whether she treated it as such. See Conn, supra.
The record shows that on the date оf this incident, the house at 7226 Liberty Street was still under Law‘s custody and control, and that she considered it to be her place of abode. Law testified that on October 2, 1992, she was in the process of moving out of the Liberty Street home. She stated that she began moving her things in September
On October 2, 1992, Law‘s relationship with the house was still that of residing tenant. From her testimony it is apparent that she perсeived herself as a resident of the house, and she was also considered to be a resident by neighbors and the police officers that responded to the incident. This is evidenced by the fact that Richardson did not contact the owner of the house when she observed the suspicious activity; rather, she contacted Law. Further, Officers Glover and Toby Scott Meeler, with the Shreveport Police Department, each testified that when they arrived on the scene Law was the person that gave them access to the house by unlocking the carport door with her key.
Law testified that she was not spending the nights at the Liberty Street address when the incident occurred. However, this alone is not determinative of whether the house was inhabited. It is not uncommon for people to have two places of abode, and for both of them to be deemed inhabited for purposes of
We affirm the conviction, finding the evidence adduced to be sufficient to satisfy the elements of simple burglary оf an inhabited dwelling, as set forth in
SENTENCING
The defendant claimed in the Motion to Reconsider Sentence that: (1) the sentence was excessive; (2) the aggravating circumstances, employed by the trial court to justify a departure from the guidelines, were improper; and (3) the trial court failed to consider certain mitigating circumstances.
The Felony Sentencing Guidelines are applicable in this case because the defendant was sentenced on April 6, 1993. Acts 1991, No. 22 § 27, effective January 1, 1992; State v. Tracey, 612 So.2d 984, 985 (La.App. 2d Cir.1993). The guidelines are advisory to the sentencing judge, and no sentence shall be declared unlawful, inadequate, or excessive solely due to the failure of the judge to impose a sentence in conformity with the sentencing guidelines. La.S.G. § 103(J);
Section 309 of the sentencing guidelines provides for sentencing in an habitual offender setting. Any person convicted of a felony and adjudged as an habitual offender shall receive an enhanced penalty as provided by
The sentencing court must state for the record the reasons for departure which shall specify the aggravating and/or mitigating circumstances and the factual basis therefore. La.S.G. § 209(A)(4)(b); State v. Perow, 607 So.2d 888 (La.App. 2d Cir.1992). One aggravating circumstance is sufficient to justify departure from the guidelines.
The trial court made an upward departure from the recommended six-year sentence of Section 309 for a second offender burglar, citing the defendant‘s continued denial of guilt after conviction, and that the defendant had lied to the court about his prior felony conviction. Although neither of
For these reasons, we hold that the sentencing judge, while attempting to follow the guidelines in good faith, failed to use any circumstances recognized by the guidelines to deрart upward from the recommended six years at hard labor.2 Thus, we vacate the sentence imposed and remand for resentencing, recognizing that the sentencing judge may choose to impose a six-year sentence as recommended by the guidelines, or to disregard the guidelines altogether and impose a sentеnce he believes does substantial justice in the case, upon complying with
ERROR PATENT
We have examined the record for error patent.
DECREE
For the reasons assigned, defendant‘s conviction is affirmed. The sentence imposed is vacated and the case is remanded for resentencing in conformity with this opinion.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.