State v. SchleveState v. Schleve
Defendant, Royd Schleve, was charged by bill of information with two counts of simple burglary, violations of
Counseled Assignments of Error
1. The trial court erred in failing to grant the motion to quash the bill of information for the state‘s failure to designate the felony which the state alleged the defendant intended to commit.
2. The trial court erred in allowing the introduction of other crimes evidence when the state failed and refused to notify the defendant as to which exception to the exclusionary rule it would rely on for the introduction of the other crimes.
3. The evidence was insufficient to prove the essential elements of the crime of burglary, or unauthorized entry to a place of business.
Pro Se Assignments of Error
1. The trial court erred in denying defendant‘s motion to suppress other crimes evidence presented by the state.
2. The trial court erred in admitting several state exhibits over defense objection.
3. The trial court erred in adjudicating defendant a fourth-felony offender.
Facts
On November 7, 1996, defendant was married and living with his wife in Metairie, Louisiana. Although he had been terminated from his job as an electrician the day before. he did not say anything about it to his wife and acted as though he was going to work that morning. Instead, late that morning, a first-grade teacher, Beth Lane, observed defendant standing in the hallway of the first-grade building at Mandeville Elementary School watching the children walk past. She said her attention was drawn to him because of the way he was looking at the children, which was not the way a parent normally looks at his child. Defendant also was not wearing the required visitor‘s badge. After escorting her class to the cafeteria, Ms. Lane again encountered defendant, this time in the third-grade hallway in front of the student restrooms. When Ms. Lane asked if she could help him, defendant replied that he was there to inquire about registering a child and was looking for the office. To ensure that defendant got to the right place, she escorted him to the office rather than merely giving him directions. She stated that the school was not open to the public to walk around freely.
Once in the office, defendant told the secretary he wanted to register his daughter in the second grade and stated his name was Richard Cangelosi. He also made vague and inconsistent statements regarding where he lived, at one point saying he lived with a woman and later saying he lived with his mother, whose address he could not remember. Defendant then left the school. These facts were the basis of the second count of simple burglary against defendant.
The following facts gave rise to the first count of simple burglary. Upon leaving Mandeville Elementary, defendant proceeded to Our Lady of the Lake Elementary School, a nearby parochial school. He
Defendant testified at trial that on the date in question, he went to Mandeville to cash his last payroll check, which was drawn on Parish National Bank, because he was told the branch in Mandeville was the closest one to him. He then decided to visit Mandeville Elementary to get registration information for his daughter and got lost on his way to the office. He offered no explanation for why he was seeking registration information in Mandeville when he lived across the lake in Metairie. According to defendant, he gave a false name because he had absconded from parole supervision in East Baton Rouge Parish. Defendant emphatically denied entering the schools for the purpose of committing a sexual offense. He claimed he was becoming “like out of it” as a result of the effects of prescription medications he was taking for neck and back pain.
Insufficiency of the Evidence
In counseled assignment of error number three, defendant argues the evidence was insufficient to uphold his convictions. At trial, defendant presented the testimony of a psychiatrist in support of the defense of involuntary intoxication resulting from prescribed medications. On appeal, he specifically argues his entries into the schools were not unauthorized. He further asserts the state‘s evidence did not exclude the reasonable hypothesis of innocence that he entered both schools with the intent of obtaining registration information, rather than to commit a felony therein.
In cases such as the present one where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for determining the sufficiency of the evidence first is that insufficient evidence to support the guilty verdict bars the retrial of a defendant because of the constitutional protection against double jeopardy, thereby rendering all other issues moot. See Hudson v. Louisiana, 450 U.S. 40, 43-45, 101 S.Ct. 970, 972-73, 67 L.Ed.2d 30 (1981); State v. Hearold, 603 So.2d 731, 734 (La.1992). Accordingly, we will first determine whether the evidence was sufficient to support defendant‘s convictions for unauthorized entry into a place of business and attempted simple burglary.
The standard of review for the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude the state proved the essential elements of the crime beyond a reasonable doubt. See
When analyzing circumstantial evidence,
In this case, defendant was convicted of the attempted simple burglary of Our Lady of the Lake Elementary School (OLOL) and the unauthorized entry of a place of business, i.e., Mandeville Elementary School. Simple burglary is defined in
Unauthorized entry of a place of business is defined as “the intentional entry by a person without authority into any structure belonging to another and used in whole or in part as a place of business.”
In brief, defendant acknowledges that visitors to both schools were required to stop at the office and get permission before entering the school grounds. However, he asserts he did go first to the office at OLOL and should not be guilty of a crime because he did not know how to get to a restroom at the school. With respect to his visit to Mandeville Elementary, he suggests it was necessary to go through part of the school to get to the office and that he went to the office once he was directed there. Moreover, defendant maintains he went to both schools for the legitimate purpose of obtaining registration information for his daughter, because she had been abandoned by her mother and there was a possibility that she might begin living with him. He argues this hypothesis of innocence is as reasonable as the hypothesis that he went to the schools with ill intent.
Upon reviewing the state‘s evidence, we find it was insufficient to establish that defendant‘s entry into Mandeville Elementary School was unauthorized. Although the public is not allowed to wander freely about the Mandeville campus, Mandeville is a public school. In State v. Dunn, the defendant was found guilty of simple burglary for entering a high school at night and stealing money from a vending machine. The Louisiana Supreme Court found reversible error in the refusal of the trial court to instruct the jury that entering a building open to the public can not be an “unauthorized entry.” 267 So.2d at 195-96. In the instant case, school was in session when defendant was found in the first and third grade areas of the school, and there was no evidence of any forced entry. Signs instructing visitors to check in at the office were posted at all entrances, but the school secretary admitted on cross-examination that the signs shown in the photographs were not the same signs as those posted on the date of the offense, and the prosecutor did not question her about this any further. According to the teacher‘s testimony, Mandeville Elementary School consists of several buildings. Apparently, a visitor can enter one of the buildings without being stopped at the office. The teacher referred to a diagram in her testimony, but the state did not introduce the diagram. When the teacher saw defendant in the first-grade area, she was returning her class to her classroom after having viewed a play performed in the gym by the third-grade students. Parents and other visitors were at the school for the play, and there was commotion at the school because of the performance. When the teacher saw defendant in the third-grade wing, she confronted him, and he voluntarily accompanied her to the school office. After talking to the secretary, defendant left the school.
After a careful review of the record, we are convinced that a rational trier of fact, viewing all of the evidence as favorable to the prosecution as any rational fact finder can, could not have concluded the state proved beyond a reasonable doubt that defendant was guilty of unauthorized entry of Mandeville Elementary School.
We conclude, however, the state‘s evidence was sufficient to establish defendant‘s entry into the classroom building at OLOL was unauthorized. OLOL is a private, parochial school not open to the public. Moreover, OLOL‘s principal testified that the school was not open to the public, and defendant was not authorized to be in the classroom building where he was discovered coming out of the girls’ restroom. The evidence reveals that, although defendant initially went to the school office, he did not request or receive permission to enter the school or obtain a visitor‘s badge, nor did he ask for directions to a restroom.
To prove defendant was guilty of attempted simple burglary, the state also was required to establish that the entry was made with the intent to commit a felony or theft therein. The state alleged defendant entered the school with the intent to commit a felony sexual offense upon a student(s). At trial, defendant emphatically denied going to either school for the purpose of committing a sexual offense. Rather, he claims he went there to obtain information on registration requirements for his eight-year-old daughter, who had been abandoned by her mother. He further claimed he began taking a combination of prescription drugs that day (for a seizure disorder and back injury) that caused him to remember very little about the incident at OLOL. In this connection, he presented the testimony of an expert psychiatrist who testified that the particular combination of drugs defendant was taking could result in involuntary intoxication, causing a person to become disoriented and rendering that person incapable of forming specific criminal intent. Defendant additionally testified that he looked for a restroom at OLOL because he has a problem with frequent urination, caused by hepatitis C. He denied telling the teacher who questioned him that he was working at the school changing light bulbs. Defendant further testified that, when he saw a little girl in the restroom, he thought she was the one in the wrong restroom.
In order to meet its burden of proof of establishing defendant‘s specific intent to commit a felony sexual offense upon one of the students, the state introduced evidence of several prior incidents involving defendant to show his lustful disposition toward young girls. It was for this purpose that the state presented the testimony of B.C., defendant‘s sixteen-year-old niece by marriage. B.C. described an incident that occurred when she was twelve years old and visited Gulf Shores, Alabama, with her parents and friend, all of whom stayed in one room. When defendant and his future wife (B.C.‘s aunt) arrived in Gulf Shores, they stayed in the room with the others because they were unable to get a room. While everyone was asleep that night, defendant moved to where B.C. was sleeping on the floor in a sleeping bag. He claimed to be cold and said he needed a blanket. However, when B.C. offered to give him her blanket, he refused, saying he would share with her. He then unzipped one side of the sleeping bag and began rubbing her legs “all the way up to [her] stomach.” He also put his head into the sleeping bag. When he saw that B.C. was becoming aggravated, he returned to the other side of the room. The next morning, B.C. told her mother what had occurred, and the family immediately left Gulf Shores and returned home. The incident was not reported to the police. B.C. also testified as to another incident occurring approximately a year later when her aunt and defendant were visiting her parents. At that time, B.C. was in her bedroom and looked up to see defendant standing right in front of her window, looking into the room. She further stated that her room is not located in an area one normally passes in going into or out of the house.
The state also introduced evidence that defendant was arrested for sexual battery as a result of a 1991 incident involving a five-year-old girl, whom defendant and his girlfriend were babysitting. Defendant told the police that the child came on to
From the guilty verdict returned, it is obvious the jury rejected defendant‘s testimony and accepted the state‘s evidence indicating defendant entered OLOL with the intent of committing a felony sexual offense. The jury‘s conclusions were based on its credibility determinations. This Court will not assess the credibility of witnesses or reweigh the evidence on appeal. See State v. Pooler, 96-1794 (La.App. 1st Cir.5/9/97), 696 So.2d 22, 58, writ denied, 97-1470 (La.11/14/97), 703 So.2d 1288.
Moreover, in a case involving circumstantial evidence in which the jury has reasonably rejected the defense offered at trial, the reviewing court ... “does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion.” Juluke, 98-0341, 725 So.2d at 1293 (quoting State v. Captville, 448 So.2d 676, 680 (La.1984)) (emphasis in original). Rather, the reviewing court must evaluate the evidence in the light most favorable to the prosecution to determine whether the alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. Juluke, 98-0341, 725 So.2d at 1293.
After a careful review of the record, we are convinced that a rational trier of fact, viewing all of the evidence as favorable to the prosecution as any rational fact finder can, could have concluded the state proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that defendant was guilty of attempted simple burglary. However, the evidence of defendant‘s guilt on count two was not constitutionally sufficient. Accordingly, we reverse defendant‘s conviction for unauthorized entry into a place of business, vacate the sentence imposed on count two, and enter an order of acquittal on that count.
Motion To Quash
In counseled assignment of error number one, defendant argues the trial court erred in refusing to quash the bill of information based on the state‘s failure to designate the felony it alleged defendant intended to commit.
As previously noted, simple burglary is an unauthorized entry into any structure with the intent to commit a felony or a theft therein. See
At a subsequent motion hearing, defendant argued the state‘s answer was inadequate because he planned to assert an involuntary intoxication defense, which is applicable only to specific intent crimes. See
In the instant case, the state‘s answer clearly informed defendant that the underlying felony alleged by the state was one of several sexual offenses. The bill of information, together with the state‘s answers to the bill of particulars, was sufficient to inform defendant of the nature and cause of the accusation against him in enough detail to allow him to prepare for trial, to allow the trial court to determine the admissibility of evidence, and to eliminate any possibility of defendant ever being charged again for the same criminal conduct.
In arguing the bill of information should have been quashed, defendant relies on State v. Franks, 230 La. 465, 89 So.2d 39 (1956). In Franks, the Louisiana Supreme Court held that the bill of information charging the defendant with aggravated burglary was fatally defective because it failed to apprise him of the felony, which he intended to commit. 230 La. at 471, 89 So.2d at 41. However, Franks is clearly distinguishable in that the state failed in that case to ever designate the underlying felony; whereas, in the present case, the state indicated the underlying felony was one of several sexual offenses, thereby informing defendant of the nature of the charge against him.
This assignment of error lacks merit.
Other Crimes Evidence
In counseled assignment of error number two and pro se assignment of error number one, defendant argues the trial court erred in admitting evidence of other acts and crimes he committed.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. Parker, 625 So.2d 1364, 1371 (La.App. 1st Cir. 1993), writ denied, 93-2832 (La.2/25/94), 632 So.2d 761. However, there are statutory and jurisprudential exceptions to this rule. State v. Jackson, 625 So.2d 146, 148 (La.1993). For example.
Except as provided in Article 412 [addressing the victim‘s past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it
intends to introduce at trial for such purposes,....
Additionally, several other statutory and jurisprudential rules also play a role in determining the admissibility of such evidence. First, one of the factors listed in Article 404(B) “must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible.” Jackson, 625 So.2d at 149. Second, the state must prove by a preponderance of the evidence that the defendant committed the similar act.4See Huddleston v. United States, 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). Third, even if independently relevant, the evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
Moreover, in cases involving child sexual abuse, evidence of other sexual crimes committed on victims unrelated to the defendant may be admissible to show the “lustful disposition” of the defendant. See Miller, 98-0301, 718 So.2d at 966-67. Such evidence has been admitted to show that a defendant “did not act innocently, and will negate any defense that he acted without intent or that the acts were accidental.” Jackson, 625 So.2d at 150.
In the present case, defense counsel and defendant himself each filed a motion to exclude evidence of prior wrongs or crimes, which were denied by the trial court. Additionally, defendant complains in brief that the state refused to specify which exception to the exclusionary rule it would rely on to introduce the other crimes evidence at issue. However, a review of the record reveals that the state gave written notice to defendant that it intended to introduce this evidence under
We have reviewed the evidence introduced at the Prieur hearings and find no error in the trial court‘s ruling that evidence of the two incidents involving B.C. and the sexual battery of the five-year-old girl was admissible at trial. Given the testimony of B.C. and the fact that defendant pled guilty to sexual battery as a result of the latter incident, a jury reasonably
These assignments of error are without merit.
Admissibility of Photographs
In his second pro se assignment of error, defendant contends the trial court erred in admitting into evidence, over defense objection, several photographs presented by the state. The photographs at issue depict: (1) distance shots of the entrance into the classroom building at OLOL (where defendant was discovered) showing signs on the doors (5-8 & S-9); (2) close-up views of signs on the OLOL doors advising that the doors are to be kept locked, for the safety of the students (S-10 & S-11); and, (3) signs posted at Mandeville Elementary advising that, as a safety precaution, all visitors are required to sign in at the office and wear a visitor‘s badge (S-19 & S-20).
Defense counsel objected at trial to the introduction of these exhibits because the photographs were taken in 1998 and, therefore, did not accurately reflect the condition of the schools in 1996, when the incidents in question occurred. The trial court overruled the objections.
The thrust of defense counsel‘s objections, as well as defendant‘s arguments on appeal, is that the photographs were inadmissible because they were not relevant. Louisiana Code of Evidence article 402 states, in pertinent part, that evidence that is not relevant is not admissible. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Defendant‘s contention that the signs did not actually reflect the condition of the schools in 1996 is based on the testimony of Mandeville‘s secretary, Genie Livaudais, that the signs pictured in S-19 and S-20 were not the exact signs posted in 1996 because the doors had been painted since then. However, she did not indicate that the language of the signs in the photographs, which instructs all visitors to report to the office, was any different from that of the prior signs. In fact, there was testimony from a Mandeville teacher, Beth Lane, indicating that the signs posted in 1996 also instructed visitors to report to the office. Moreover, there was no suggestion that the signs posted at OLOL, as depicted in S-8 through S-11, were not posted there in 1996.
In any event, even if the disputed exhibits were not relevant because the
This assignment of error lacks merit.5
Habitual Offender Adjudication
In his third pro se assignment of error, defendant argues the trial court erred in adjudicating him a fourth-felony offender because the state did not prove he was the same person convicted of one of the predicate offenses.
Before enhanced punishment will be imposed under the habitual offender statute,
In order to establish the Colorado conviction, the state introduced copies of the bill of information, the plea agreement, the minute entry of the guilty plea, a transcript of the Boykin hearing, and a copy of the order of commitment in that case. The Boykin transcript reveals that the offense occurred when Dean Crawford attempted to make an unauthorized purchase on a Sears credit card and forged the cardholder‘s name on the sales slip. Defendant does not contest the validity of the Colorado conviction.
To prove defendant‘s identity as the person convicted in Colorado, the state introduced certified transcripts of excerpts from defendant‘s trial testimony. (Habitual offender hearing S-1 & S-2) The transcripts reveal that, when questioned on direct examination as to his past convictions, defendant initially said only that he had a conviction for burglary and one for sexual battery. However, shortly thereafter, he indicated he also had gotten into trouble for unauthorized use of a credit card a long time ago. He thought the resulting conviction was a misdemeanor, but he was not certain of that. During cross-examination, the following exchange between the prosecutor and defendant occurred:
Q. I‘ll ask you this question then. Are you the one and same Dean Crawford also known as Royd Schleve who was convicted in case number 86-CR-7 Division B of the Courts of Colorado of
criminal intent to commit second degree forgery? A. That was the unauthorized use of an access card conviction, that‘s right.
Q. So when you indicated to Mr. Stamps [defense counsel] that you had used two names, that is Roy Smiley and Roy Cangelosi, you have also used the name Dean Crawford?
A. Right, but I forgot. That‘s not something that—I mean, you didn‘t ask me.
Various methods may be used to prove that the defendant on trial is the same person whose name is shown as the defendant in the evidence of a prior conviction, such as by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, by photographs contained in a duly authenticated record, or by evidence of identical driver‘s license number, sex, race and date of birth. State v. Pitre, 532 So.2d 424, 426 (La.App. 1st Cir.1988), writ denied, 538 So.2d 590 (La.1989). A defendant‘s own testimony admitting he was the same person convicted in a prior case is sufficient to meet this burden. See Gordon, 582 So.2d at 293; State v. Soileau, 95-1214 (La.App. 3d Cir.5/15/96), 677 So.2d 518, 519.
In adjudicating defendant a fourth-felony offender in the instant matter, the trial court stated it was satisfied that defendant‘s testimony established his identity as the same person convicted in the Colorado predicate, which was referred to specifically by case number and court division. We find no error in the trial court‘s determination. See Gordon, 582 So.2d at 293. Moreover, our review of the state‘s exhibits, as well as the Colorado provisions under which defendant was convicted,6 indicates defendant‘s conviction was for “a crime which, if committed in this state would be a felony.” See
This assignment of error lacks merit.
Under the authority of
Additionally, we have discovered a second patent sentencing error in that the trial court stated that defendant was not to be eligible for good time credit. Apparently, defendant is ineligible for good time credits on the attempted simple burglary conviction because of his status as a multiple offender. See
CONVICTION AND HABITUAL OFFENDER ADJUDICATION ON COUNT 1 AFFIRMED; SENTENCE ON COUNT 1 AMENDED AND AFFIRMED AS AMENDED; CONVICTION ON COUNT 2 REVERSED AND SENTENCE VACATED; ORDER OF ACQUITTAL ENTERED ON COUNT 2; AND REMANDED WITH ORDER.