State v. PettyState v. Petty
Margaret S. Sollars, Thibodaux, LA, for Defendant-Appellant.
DUFRESNE, Judge.
The Jefferson Parish District Attorney filed a bill on information charging the defendant, Joseph Petty, with one count of simple burglary in violation of
FACTS
On December 20, 1998, Officer Scott Zemlik of the Gretna Police Department was on routine patrol in the area around Lafayette Street and the Westbank Expressway in Gretna. At approximately 4:45 a.m., as he turned off Lafayette Street onto 15th Street, he observed an individual break the window of a red Mitsubishi Eclipse and reach inside. Officer Zemlik stopped his patrol car, exited, and ordered the subject to stop. The perpetrator looked at the officer and then fled in the opposite direction, dropping a jack stand in the process. The officer pursued the individual on foot, eventually apprehended him with the assistance of another officer, and then placed him under arrest. Officer Zemlik identified the defendant in court as the individual that he saw break into the vehicle.
In addition to the testimony of Officer Zemlik, the state, at trial, presented the testimony of Greer Griffin, the owner of the vehicle. She testified that on December 20, 1998, after 4:30 a.m., someone broke into her car while she was at O’Charley’s in Gretna. Ms. Griffin further testified that she did not give anyone permission, including the defendant, to enter her car.
SUFFICIENCY OF THE EVIDENCE
In his first assigned error on appeal, the defendant challenges the sufficiency of the evidence used to convict him. He specifically contends that the state failed to prove that he entered the car or that he had the specific intent to commit a felony or theft therein.
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986).
When circumstantial evidence is used to prove the commission of the offense,
In the present case, the defendant was convicted of simple burglary. That offense is defined in
In the present case, the defendant argues that the state failed to present sufficient evidence to support a finding that he entered the car. We find this contention to be without merit. Entry is accomplished whenever any part of the defendant’s person passes the line of the threshold. It is sufficient that any part of the person intrudes, even momentarily, into the structure. State in Interest of R.E.B., 26,468 (La.App. 2 Cir. 9/21/94), 643 So.2d 287. At trial, Officer Zemlik testified consistently that he saw the defendant break the car window and reach or lean inside. During his testimony, the officer testified that, “As I was turning off Lafayette onto 15th Street, proceeding eastbound, I observed the subject break a window, reach in, he saw me and fled.” He further testified that, “I observed glass fly, I observed the subject reach inside the vehicle.” In addition, the officer stated that, “After the window smashed, he appeared to reach in the vehicle.” We find this testimony clearly sufficient to support a finding that the defendant entered the vehicle.
The defendant also argues that the state failed to prove that he had the specific intent to commit a felony or theft inside the car. We likewise find no merit to this argument. At trial, Officer Zemlik testified that at 4:45 a.m., on December 20, 1998, he observed the defendant break the window of a red Mitsubishi and reach inside. When the officer ordered him to stop, the defendant fled, dropping a jack stand in the process. The testimony was clear that the vehicle did not belong to the defendant, nor did he have permission to enter the vehicle. When viewing the evidence presented at trial in the light most favorable to the prosecution, it is difficult to imagine any hypothesis that does not include the specific intent to commit a felony or theft therein. Accordingly, based on the foregoing discussion, we find that the evidence clearly supports the defendant’s conviction for simple burglary.
EXCESSIVE SENTENCE
In his second assigned error, the defendant complains that his sentence of twelve years at hard labor is excessive.
The Eighth Amendment to the United States Constitution and Article 1, § 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks
Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged, and the worst type of offender. However, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212.
In the present case, the defendant was convicted of simple burglary. According to
We first note that the sentence imposed was not the maximum sentence allowable by law because no fine was imposed. State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d 1076. Moreover, we find that the record supports the sentence of twelve years. In imposing sentence, the trial judge considered the provisions of
Based on the foregoing discussion and in light of the considerations set forth by the trial judge, we find that the twelve year sentence imposed on the defendant is not excessive.
ERROR PATENT DISCUSSION
We have also reviewed the record for errors patent in accordance with
For the reasons set forth herein, we hereby affirm the defendant’s conviction and sentence.
AFFIRMED.