STATE of Louisiana v. Bernard Anthony DENHAM
No. 2001 KA 0400
Court of Appeal of Louisiana, First Circuit
December 28, 2001
804 So. 2d 929
FOIL, PETTIGREW and KLINE, JJ.
Peggy J. Sullivan, Monroe, LA, for appellant, Bernard Anthony Denham.
BEFORE: FOIL, PETTIGREW and KLINE, JJ.*
FOIL, Judge.
The defendant, Bernard Anthony Denham, was charged by bill of information with one count of public intimidation, a violation of
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, the defendant contends the evidence was insufficient to support the verdict. In assignment of error number two, he contends the trial court erred in denying the motion for new trial. He argues the assignments together, claiming the evidence was insufficient because the victim did not have the authority to revoke the defendant‘s parole.
In reviewing claims challenging the sufficiency of the evidence, this court must consider “whether, after 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 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also
Public intimidation is the use of violence, force, or threats upon any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(1) Public officer or public employee.
[The defendant] became irate and started raising his voice and at one point, he told me that if I took any actions that would have his parole revoked, he was going to go ahead and make sure something would happen to me whenever he was released from the penitentiary. And he was taking a posture, it looked like he was getting ready to fight. He had gotten up, bowed his shoulders, started moving his hands, as if he were making a fist and I was, you know, disturbed at that point about that. And I was also concerned about what, you know, may have happened, you know, after, when he was outside because of my family situation.
Dillon indicated the defendant‘s exact words were, “if [the defendant‘s] parole were revoked, something bad would happen to [Dillon] when [the defendant] was let out of jail.”
The defense presented testimony from two St. Tammany Parish Sheriff‘s Office deputies, Katherine Brooks and Steven Jude Paretti. Both Deputy Brooks and Deputy Paretti were working in the St. Tammany Parish Jail on December 2, 1999. Brooks stated that, during the incident at issue, she heard Dillon‘s raised voice, but not the defendant‘s voice. On cross-examination, she indicated she heard Dillon tell the defendant, in a “very high pitched, very excited, defensive” voice, “[q]uit threatening me, calm down, calm down.” Paretti testified he heard Dillon shouting at the defendant to “calm down” about three times and then heard Dillon tell the defendant, “don‘t threaten me, don‘t threaten me, watch what you say.” Paretti heard Dillon ask the defendant to sign a piece of paper at the time of the confrontation and heard the defendant refuse to sign the paper.
Relying upon State v. Love, 602 So.2d 1014 (La.App. 3d Cir.1992), the defendant asserts that in order for the evidence in a public intimidation case to be sufficient to support conviction, the evidence must establish the victim in fact had the authority to give the defendant that which he was attempting to obtain through intimidation. While that case contains language supportive of this proposition, we note that the definition of public intimidation does not contain any such requirement. Thus, we need not determine whether the state established that Dillon had the authority to revoke the defendant‘s parole.
Viewing the evidence in the instant case in the light most favorable to the state, we conclude that any rational trier of fact
These assignments of error are without merit.
THIRD FELONY HABITUAL OFFENDER
In assignment of error number three, the defendant contends the trial court erred in adjudicating him a third felony offender. Defense counsel reserved the right to supplement her original brief upon review of the Boykin transcripts. After reviewing the pertinent transcripts, however, defense counsel declined to argue this assignment. Accordingly, this assignment of error is deemed abandoned. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4.
DENIAL OF CONTINUANCE
In pro se assignment of error number one, the defendant contends the trial court erred in denying defense counsel‘s June 13, 2000 motion for continuance following the filing of the bill of information.
The record indicates the bill of information was filed on June 13, 2000, but the record contains neither a minute entry nor a transcript from that date. Further, the defendant‘s counseled brief makes no reference to the filing of a motion for continuance on June 13, 2000. On the contrary, the counseled brief states that “[n]o pretrial motions were heard and trial commenced on June 14, 2000.”
Only that which is in the record may be reviewed. State v. Vampran, 491 So.2d 1356, 1364 (La.App. 1st Cir.), writ denied, 496 So.2d 347 (La.1986). The record does not contain any evidence of the June 13, 2000 motion for continuance and, thus, the instant assignment of error is not susceptible to review at this time.
PATENT ERROR
In reviewing the record for patent error, we have discovered the trial court did not wait the required twenty-four hours after denial of the defendant‘s motion for new trial before imposing sentence, nor did the defendant waive that waiting period. See
CONVICTION AFFIRMED; HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.