State v. MitchellState v. Mitchell
FACTS
During the early morning hours of August 18, 1982, Mr. and Mrs. Robert Darby, their two minor daughters, and Mrs. Darby‘s daughter from a previous marriage, were аsleep in their home on North Lamar Street in Abbeville. At around one o‘clock in the morning, Mrs. Darby was awakened and saw a naked person standing in front of her daughter‘s bed in the next room. At first, Mrs. Darby thought it was one of her daughters. When the person turned to the side, Mrs. Darby observed that it was, in fact, a man. At this point, Mrs. Darby saw that the man was masturbating with onе hand and rubbing her five-year-old daughter with his other hand. Mrs. Darby‘s thirteen-year-old daughter was asleep in the same bed as the five-year-old. Both girls slept through the entire incident. Mrs. Darby recognized the man as the defendant by his profile. The bathroom light had been left on that night and was shining directly into the bedroom. Mrs. Darby then yelled at the intruder, calling him by defendant‘s name. The man turned around and directly faced Mrs. Darby and then fled to the living room where he jumped out of a window. Mr. Darby woke up when he heard his wife scream. Mrs. Darby turned to her husband and stated, “that‘s Ole Grady Mitchell in there playing on Kim.” Mr. Darby jumped out of bed and started to run after the man. While doing so, he tripped over a floor fan and was unable to catch or even get a glimpse of the intruder.
Adreama Roach, Mrs. Darby‘s 17 year old daughter, also identified the intruder as the defendant, Grady Mitchell. When Adreama heard her mother scream, she turned on her bedroom light. As she did so, the man ran straight through her bedroom and into the living room, where she saw him jump through an open windоw. Mrs. Darby thereafter telephoned the police and reported what had transpired.
Appellant perfected the following assignments of error:
1. The trial court erred in that the State failed to prove beyond a reasonable doubt that the defendant entered the residence with the intent to commit a felony or theft;
2. The trial court erred in that the State failed to prove beyond a reasonable doubt that the defendant committed a battery after entering the residence, as required to justify a conviction of aggravated burglary; 3. The trial court erred in that the State failed to prove beyond a reasonable doubt that the defendant was present in the residence on the night of the allеged burglary;
4. The trial court erred in failing to allow defense counsel to call Adreama Roach, a state witness under cross-examination, and to impeach her prior testimony on direct examination;
5. The trial court erred in failing to adequately consider the sentencing guidelines established by the legislature, and erred in resentencing the defendant to a term longer than that originally imposed by the trial court; and,
6. The trial judge presiding at the preliminary examination erred in re-opening testimony after the matter was argued and submitted.
The defendant has failed to either brief or argue assignment of error number 6. It is therefore deemed abandoned. State v. Washington, 430 So.2d 641 (La. 1983); State v. Simpson, 371 So.2d 733 (La.1979).
ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3
In his first three assignments of error, defendant contends that the State failed to prove beyond a reasonable doubt certain elements of the offense of aggravated burglary.
“Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit а felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.”
Defendant claims that the State failed to prove that defendant was present at the Darby home on the night of the alleged burglary. At trial, the State presented two eye-witnesses, Mrs. Darby аnd her 17-year old daughter, Adreama. Both testified that in the early morning hours of August 18, 1982, they saw defendant, Grady Mitchell, in their home. Mrs. Darby recognized him first by his profile and again when he turned and directly faced her before he fled from the house. She testified that she was able to clearly see the defendant due to the fact that the bathroom light was shining directly into her young daughter‘s bedroom. Adreama testified that she recognized defendant when he ran through her room on his way to the living room. She testified that they almost collided with each other as she was getting out of her bed to investigate her mother‘s scream. Both Mrs. Darby and Adreama testified that they had known the defendant for abоut three to four years. He had eaten at their house on several occasions and had mowed their lawn just three days prior to the incident in question.
Defendant had three alibi witnesses testify on his behalf at trial. His grandmother, aunt and girlfriend all testified that defendant was at the grandmother‘s home all night on August 18, 1982. We have no reason to question the testimony of these three witnesses. But their testimony is totally irrelevant to the case at hand since the crime did not occur on the night of August 18, 1982, but rather during the early morning hours of August 18, 1982. There was absolutely no evidence presented at trial as to defendant‘s whereabouts at the time the crime was committed.
The standard of review as tо the sufficiency of the evidence is whether viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable
Defendant‘s next contention is that the State failed to prove beyond a reasonable doubt that defendant entered the Darby residence with the intent to commit a felony or theft within. The State asserts that defendant not only attemptеd, but actually committed a relative felony inside the Darby home, that being indecent behavior with a juvenile.
“Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, wherе there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child‘s age shall not be a defense.”
At the time of the offense, defendant was 23 years old. His actions in the presence of Mrs. Darby‘s five аnd thirteen year old daughters certainly qualify as “lewd or lascivious“. The requirement that the offender have the “intention of arousing or gratifying the sexual desires of either person” was obviously met due to the fact that defendant was masturbating. In light of these facts, we find that the State more than adequately proved that defendant entеred the Darby‘s home with the intention of committing a felony therein, i.e., indecent behavior with a juvenile.
Finally, defendant asserts that the State failed to prove that defendant committed a battery after entering the Darby home. Defendant contends that the mere rubbing of the sleeping Darby child does not constitute a battery under the рrovisions of
A battery is defined, for criminal purposes, as the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.
We therefore hold that the State did present evidence beyond a reasonable doubt that defendant made an unauthorized entry into an inhabited dwelling with the intent to commit a felony, and once inside, committed a battery upon an inhabitant thereof.
Defendant‘s first three assignments of error are therefore without merit.
ASSIGNMENT OF ERROR NO. 4
By this assignment defendant claims that the trial court erred in failing to allow defense counsel to call Adreama Roach, a state witness, under cross-examination for purposes of impeachment.
During the State‘s case in chief, defense counsel cross-examined Adreama Roach extеnsively. Adreama was then re-questioned by the State and thereafter subjected to a thorough second cross-examination by defense counsel. At no time following the cross-examination did defense counsel indicate to the court that further cross-examination would be necessary.
The right to recall a witness for further crоss-examination is within the sound discretion of the trial judge whose ruling thereon will not be disturbed on
We find no abuse of discretion in the trial court‘s refusal to allow defense counsel to recall Adreama Roach for further cross-examination. Defense counsel had already conducted an exhaustive cross-examination of Ms. Roach and nothing in the record indicates that further cross-examination would have revealed any new material theretofore uncovered.
This assignment is without merit.
ASSIGNMENT OF ERROR NO. 5
This final assignment of error conсerns the sentencing of defendant. Defendant contends that the trial court erred in resentencing the defendant to a term of 18 years at hard labor after it had originally imposed a sentence of 15 years at hard labor.
On November 21, 1983, a hearing was held for the purpose of sentencing defendant. The trial judge first sentenced thе defendant to 15 years at hard labor. After eliciting from defendant the fact that he had a prior felony conviction, the trial judge changed the sentence to 18 years at hard labor. On the following day, the trial court informed the Clerk of Court‘s office that the sentence imposed would be recalled due to the fact that thе pre-sentence investigation, which had previously been ordered, was overlooked by the Court. A new sentencing hearing was held on January 25, 1985. After reviewing the pre-sentence report, the trial judge again imposed upon the defendant a sentence of 18 years at hard labor.
“Although the sentence imposed is legal in еvery respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.”
The Louisiana Supreme Court in State v. Guajardo, 428 So.2d 468 (La.1983), stated that “... our law fixes the day after imposition as the point of commencement of a hard labor sentence.
The present case is factually similar to Guajardo. The trial judge amended the initial sentence after discovering that defendant had a prior felony conviction. For this reason, the sentence was increased from 15 years to 18 years at hard labor. The sentence was amended prior to the beginning of the execution of the first sentence. For the reasons set forth in Guajardo, the imposition of the 18 year sentence was appropriate under the circumstances of this case.
On January 25, 1984, the trial judge set aside the original sentence based on the ground that the sentence was illegal because the pre-sentence investigation report had not been received. After reviewing the report, the trial judge resentenced the defendant to a sentence of 18 years at hard labor. Since we find the 18-year sentence imposed at the initial sentencing hearing to be legal, we find no error in the trial judge‘s reimposing the same sentence at a later date.
Under
At the first sentencing hearing, the trial judge explained his reasons for imposing the 15-year sentence as follows:
“... Because of your youth and no one was injured, I did not give you the maximum. The Court feels to give a lesser sentence would deprecate the seriousness оf the crime. Such an activity invites injury to someone, usually the innocent victim.”
Upon discovering that defendant had a prior felony conviction, the sentence was increased with the brief explanation, “The Court feels you need institutionalization.” The trial judge elaborated on his reasons for imposing the 18-year sentence аt the January 25, 1984 hearing, wherein he stated:
“... The Court had at first given him fifteen years, and then in questioning him, the Court found out he had a prior felony conviction and then had increased it to eighteen (18) years. At this time the Court will sentence you to serve eighteen (18) years at hard labor in custody of the Department of Corrections. The Court imposеs this sentence on the basis that the Court is of the opinion Mr. Mitchell needs institutionalization. He has a record of violence; he has a prior felony conviction. He was found guilty of aggravated burglary involving indecent behavior with a juvenile. The Court feels that a lesser sentence in view of his record and the circumstances that it would be a deprevation (sic) of the seriousness of the crime to give a lesser sentence. The Court has explained already why it at first increased it from fifteen to eighteen years when it learned that he had a prior conviction of a felony.”
Although the trial judge did not strictly comply with the sentencing guidelines of Article 894.1, we find that there is sufficient support in the record for the sentencing choice. The defendant had a prior felony conviction which revealed his propensity for violence. The situation involved in the instant case was one where there was a strong potential for violence and harm to a five-year-old girl. One can only speculate as to what might have happened to the young girl had her mother not awakened and frightened the defendant out of the home. Considering these factors and the fact that the maximum sentence for aggravated burglary is thirty years, we find that the sentencing choice was fully supported by the record.
This assignment of error lacks merit.
DECREE
For the reasons assigned, the defendant‘s conviction and sentence are affirmed.
AFFIRMED.