| dеfendant, Sean E. Stock, appeals his convictions for simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2 (count one), and for receiving stolen things having a value of over $1,500.00, in violation of La. R.S.. 14:69 (count two). On appeal, defendant argues that the evidence is insufficient to convict him of the burglary charge. He also argues that the trial court erred in accepting the victim’s testimony as to the value of the stolen things. Finally, he argues that the trial court’s use of a predicate conviction to charge him as a habitual offender was error because of defects in his guilty plea to the predicate offense.
Upon review, for the following reasons, we affirm defendant’s convictions. However, based оn our errors patent review, we vacate defendant’s adjudication and sentence as a habitual offender, reinstate defendant’s original sentence on count one that was vacated, and remand the matter to the trial court to rule on defendant’s outstanding motion to reconsider his original sentences and for further proceedings as warranted.
PROCEDURAL HISTORY
On August 3, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Sean E. Stock, with simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2. On August 4, 2015, defendant was arraigned and entered a plea of not guilty. Thereafter, on October 28, 2015, a superseding bill of information was filed against defendant, additionally charging him with receiving stolen things having a value of over $1,500.00, in violation of La. R.S. 14:69. On October 29, 2015, defendant was arraigned and entered a plea of not guilty to the superseding bill of information.
On March 21, 2016, defendant went to trial before a twelve-person jury, which on March 22, 2016 returned a verdict of guilty as charged as to both counts. ROn March 23, 2016 and March 31, 2016, defendant filed a motion for post-verdict judgment of acquittal and a motion for a new trial, respectively, which motions were denied on April 4, 2016. The trial court then sentenced defendant to ten years imprisonment at hard labor on each count to be served concurrently. Also on April 4, 2016, defendant filed a motion to reconsider his sentences.
On August 26, 2016, the trial court denied defendant’s motion to quash, and after a habitual offender bill hearing, adjudicated defendant as a second felony offender. The trial court then vacated defendant’s original sentence on count one and resentenced him under the habitual offender statute to ten years imprisonment at hard labor, to be served without the benefit of probation or suspension of sentence and concurrently with the previous sentence imposed on count two and any other sentence defendant was then serving. Defendant orally moved for reconsideration of his enhanced sentence, which was denied during the hearing. Defendant also filed a written motion for reconsideration of the sentence imposed on August 26, 2016, which the trial court denied on its face that same day. Defendant’s appeal follows.
FACTS
On Saturday, June 20, 2015, Jeannie La-mury, a widow, was living alone at her home on 47th Street off of Causeway Blvd. in Metairie, Louisiana. At around 8:00 a.m. that day, Ms. Lamury left her home to spend the day at her mother’s 13house. Ms. Lamury returned home that evening. When she sat down on the sofa to watch television, she noticed a grape juice bottle on a nearby bookshelf; she thought that was odd, since she had not had any juice that morning. She also noticed that a large bowl of change was missing. At approximately 7:30 p.m. that evening, Ms. Lamury called 9-1-1 to report that someone had been inside of her home. Once the police arrived, part of their investigation centered on how the burglar had entered the home. There were no broken windows and Ms. Lamury could not recall whether the side door, which entered into the den from the carport, had been locked. She stated that she kept a spare key in her shed, which was located not far from the side door. Ms. Lamury did not search for other missing items at that time.
Deputy Daniel Ordoyne with the Jefferson Parish Sheriffs Office responded to Ms. Lamury’s 9-1-1 call. While on the scene, Deputy Ordoyne spoke with Christopher Dickson, who lived across the street from Ms. Lamury. Mr. Dickson informed Deputy Ordoyne that sometime between noon and 2:00 p.m. that day, while he was inside of his home, he observed a white male with a slim build, about 5’8‘ or 5’9‘ in height, with short dark ham, in a black shirt and with a backpack, walking down the sidewalk towards the Lamury residence. About half an hour later, the man left the house with the backpack. Mr. Dickson stated that he had never seen this person on the street before and could not describe the man’s face.
Meanwhile, that same day, at approximately 4:00 p.m., Detective George Kister with the Jefferson Parish Project STAR Division
After exiting his vehicle and making contact with defendant, Detective Kister asked defendant if he could perform a weapons pat-down search, to which defendant cоnsented. During his pat-down of defendant, Detective Kister felt a bulge in defendant’s right front leg pocket. Defendant informed Detective Kister that the bulge was jewelry and gave Detective Kis-ter consent to remove the bulge, which was a mix of men and women’s jewelry.
The following day, Sunday, June 21, 2015, Ms. Lamury attended a barbeque at her mother’s house for most of the day. When she returned home, she sat down on the sofa and turned her television on as she had done the previous day. Ms. Lamu-ry then looked over towards her desk in the den and noticed that her laptop was gone. She also noticed that another laptop was missing from the front living area of her house. Ms. Lamury again called 9-1-1 to report that for the second night in a row, someone had been in her home and that her computers were missing.
When the police arrived, Ms. Lamury told them that she had removed the spare key from her shed and had locked the door before she had left earlier in the | Rday. She then went into her bedroom and realized that some of her jewelry was missing from boxes on her shelf. She described that a wedding set, a Ramsey’s solitaire diamond engagement ring, and a 14-carat gold band were missing, as well as her husband’s 14-carat gold band and some costume jewelry. Before leaving the scene, Deputy Ordoyne notified the detective bureau of the burglary.
On Tuesday, June 23, 2015, Detective Manual Estrada with the burglary division of the Jefferson Parish Sheriffs Office came to Ms. Lamury’s home for a followup investigation and asked if she knew someone by the name of Sean. At first, Ms. Lamury did not recognize anyone by that name, but then remembered that she had previously hired someone to do yard work and painting. The detective showed Ms. Lamury a picture of defendant on his phone and Ms. Lamury recognizеd the person in the picture as the same person who had cut down a tree in her yard and painted her kitchen two or three years earlier. The detective also showed Ms. La-mury the photographs of the jewelry that had been taken by Detective Kister; she recognized the jewelry as hers.
At the investigations bureau, defendant met with Detective Estrada and Detective Darrin Parent and was read his Miranda
Later, defendant changed his story and revealed that he told Perry that there were big jars of change in the third house from the end of the street, likely amounting to between one to two hundred dollars, and that he had planned to go to Winn Dixie to cash in the change. Defendant informed the detectives that he and Perry rode bikes there. He described Perry as wearing jeans and having a backpack on that Saturday. Defendant denied entering the home, but admitted that he waited near a nearby barroom for around thirty minutes. He denied knowing how Perry had entered into Ms. Lamury’s home. Defendant recalled that when Perry exited the home, he did not have any change, but he gave defendant the jewelry. Defendant said that he encountered Detective Kister within an hour or so of when he obtained the jewelry from Perry. Defendant denied knowing anything about Ms. Lamury’s home being broken into on Sunday or about the computers. Following his statements, defendant was placed under arrest for simple burglary and illegal-possession of stolen things.
ASSIGNMENT OF ERROR NUMBER ONE
Sufficiency of the evidence of burglary
In his first assignment of error, defendant argues that the evidence was insufficient ■ to support his- conviction of simple burglary of an inhabited dwelling. He argues that the State failed to prove beyond a reasonable doubt the essential elements of his identity or that he had specific intent to commit a felony or any 17theft inside the dwelling. Specifically as to identity, defendant contends that, the State’s primary eyewitness could not place him at Ms. Lamury’s residence, and there was no physical evidence at thе scene linking him to the offense. He distinguishes the facts of this matter from State ex rel J.W.,
The standard of review for determining the sufficiency of the evidence is whether, viewing the evidеnce in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
|sThe credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Schnyder, supra; State v. Baker, 01-1397 (La. App. 5 Cir. 4/30/02),
La. R.S. 14:24 provides that “all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly procure another to commit the crime, are principals.”
Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment, or other structure used in wholе or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein. La. R.S. 14:62.2. In order to convict an accused of simple | burglary of an inhabited dwelling, the State must prove: (1) there was an unauthorized entry; (2) .the structure was inhabited at the time of entry;
Encompassed within proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Alexander, 16-84 (La. App. 5 Cir. 7/27/16),
In State v. Blanks, 07-1292 (La. App. 1 Cir. 2/8/08),
Here, defendant argues that the evidence was insufficient to prove that he was the perpetrator who entered Ms. Lamury’s home. He points to Mr. Dickson’s failure to identify him as the person seen approaching Ms. Lamury’s residence. Although there werе no eyewitnesses who observed defendant enter Ms. Lamury’s home or any physical evidence at the scene linking defendant to the offense, the |inState proved the element of identity through defendant’s own statements made to detectives at the investigations bureau and the circumstances surrounding defendant’s actions on that date. Defendant admitted that he informed Perry that Ms. Lamury had large jars of change inside her home, which he estimated amounted to one to two hundred dollars. Defendant informed the detectives that while Perry entered, he waited near a nearby barroom for approximately thirty minutes. See State v. Burns, 32,904 (La. App. 2 Cir. 2/1/00),
Moreover, defendant was found in possession of Ms. Lamury’s jewelry within an hour or so of the time he estimated the burglary occurred and approximately 1.8 miles from Ms. Lamury’s home. Therefore, defendant’s assertion that he did not enter Ms. Lamury’s home is of no moment, because even if defendant did not physically enter Ms. Lamury’s home, the State proved beyond a reasonable doubt that defendant was a principal to the crime under the facts of this case, and thus, it proved the identity of defendant as a principal of simple burglary of an inhabited dwelling sufficient to convict him.
Specific intent is required for a conviction for simple burglary, and it may be
Defendant assеrts that the State failed to prove that he had the specific intent to commit a felony or theft inside of Ms. Lamury’s home, an element of La. R.S. 14:62.2. However, as defendant admitted, he informed Perry that Ms. Lamury had large jars of change inside her home. According to defendant, he and Perry rode bicycles to 37th Street, and defendant waited for approximately thirty minutes near the barroom near Ms. Lamury’s house for Perry after pointing out Ms. Lamury’s house. Defendant planned to cash the change in at Winn Dixie once he had it. He admitted that when Perry exited the residence, he asked about the change, and Perry gave him the jewelry instead. He was stopped approximately 1.8 miles from Ms. Lamury’s house in possession of her jewelry within an hour or so of the burglary, in his own estimation. Therefore, the State sufficiently proved that defendant had the specific intent to commit a felony or theft inside of Ms. Lamury’s home.
We find that under the Jackson standard, the State proved beyond a reasonable doubt that defendant was a principal to the crime of simple burglary of an inhabited dwelling and that he had the specific intent to commit a theft or felony therein. Considering the foregoing, we find that the evidence presented, when viewed in the light most favorable to the prosecution, was sufficient to sustain defendant’s conviction for simple burglary of an inhabited dwelling. This assignment of error is without merit.
| ^ASSIGNMENT OF ERROR NUMBER TWO
Value of the stolen things
Defendant next argues that it was error for the trial court to allow Ms. Lamury’s testimony to establish the value оf the jewelry. He argues that her testimony was not corroborated by experts or receipts and that much of the jewelry in question was costume jewelry and not of significant value. Defendant argued in his motion for post-verdict judgment of acquittal that the value of the jewelry was less than $500. The State contends that the uncontradict-ed testimony of Ms. Lamury was sufficient to establish the value of the jewelry. It argues that defendant did not contradict Ms. Lamury’s valuations or show that she lacked knowledge of the items’ costs.
At trial, Ms. Lamury testified that after Hurricane Katrina, she had a part-time business selling costume jewelry on eBay. She stated that she would buy vintage jewelry at thrift stores and from online suppliers, and at one time, sold mainly sterling jewelry. As to the engagement and wedding band set, Ms. Lamury stated that she bought it from her daughter and that it had come from Ramsey’s Jewelers, a store in Metairie. Ms. Lamury testified that when documenting the items in the Jefferson Parish Sheriffs Office Property Report, she estimated the value of the items at the minimum value she would have sold them for on eBay. Ms. Lamury estimated the property at the minimum value of each item when completing the Property Report for the Sheriffs Office.
In order to support a conviction for illegal possession of stolen things valued at $1,500.00, or more, the State must prove beyond a reasonable doubt that the defendant: 1) intentionally possessed, procured, received, or concealed; 2) anything of value; 3) that wаs the subject of any robbery or theft; (4) where circumstances indicate
The Property Report completed by Ms. Lamury was a two-page document that listed the stolen items and a total for each page. The second page correctly lists the amount of the combined items on that page as $77.00. However, the first page incorrectly calculates the total of the items on that page as $2,366.00; the total of the items on the first page actually equals $1,866.00. Therefore, the actual total amount of the items is $1,943.00. Despite this incorrect calculation, the State charged defendant with the correct grade of La. R.S. 14:69 since the total value of the items equals over $1,500.00. See also La. R.S. 14:69(B)(1).
In the present case, defendant only argues that the State failed to prove the value of the objects taken. When the degree of the crime is based on the value of the stolen property possessed, the testimony of the owner is sufficient to establish the value of the stolen property if it is clear and uncontradicted. State v. Richey, 13-228 (La. App. 5 Cir. 10/30/13),
Here, Ms. Lamury, the owner and victim, testified as to the value of each item. Ms. Lamury’s estimate as to the value of the property was uncontradicted. Ms. La-mury had purchased the wedding band set from her daughter and had her own business for a few years selling costume jewelry on eBay. Thus, Ms. Lamury’s testimony was sufficient to establish that the value of the property exceeded $1,500.00. Therefore, under the Jackson standard, the State proved beyond a reasonable doubt that defendant illegally received stolen property having a value of $1,500.00 or more. This assignment of error is without merit.
luASSIGNMENT OF ERROR NUMBER THREE
Improper use of predicate offense as basis for habitual offender adjudication
In his third assignment of error, defendant argues that the predicate offense of carjacking used as the basis for the habitual offender bill of information was invalid because the trial cоurt inadequately advised him of his right to confront and cross-examine witnesses when he entered his guilty plea to the predicate offense. Defendant argues that this was a violation of his due process rights. Defendant cites to Pointer v. Texas,
In order to prove that a defendant is a habitual offender, the State must establish by competent evidence the defendant’s prior felony convictions and that defendant is the same person who was convicted of the prior felonies. State v. Woods, 09-399 (La. App. 5 Cir. 3/9/10),
If the State meets its burden of proof, then the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant meets this burden, then it shifts back to the State to prove the constitutionality' of the plea by producing a perfect transcript, which shows that the defendant’s waiver of his Boykin rights was voluntary, informed, and express. If the State produces anything |15less than a perfect transcript, such as a guilty plea form, minute entry, or imperfect transcript, the trial judge must weigh the evidence to determine whether the defendant’s prior plea was both knowing and voluntary. Woods, supra. See also Shelton, supra.
In Boykin v. Alabama,
The State proved by competent evidence that defendant had a prior conviction of carjacking and was represented by counsel. The burden then shifted to defendant to show affirmative evidence of an infringement of his rights dr a procedural irregularity in the taking of the plea, As he did below, defendant avers on- appeal that the Boykin transcript was defective as the trial court failed to advise him of his rights to confrontation, and cross-examination. The State provided the transcript of defendant’s prior guilty plea at the habitual bill hearing. According to the Boykin transcript of defendant’s guilty plea for the predicate cоnviction, the trial judge stated: “You’re giving up your right to force the district attorney to call witnesses who would testify against you at trial?” Defendant responded: “Yes sir.”
The State also presented the certified conviction packet for defendant’s predicate conviction of carjacking. The certified conviction packet contains a Waiver of Constitutional Rights Plea of Guilty form signed by defendant, his attorney, and the trial judge. The guilty plea form provides, in part, that defendant |1fiwas informed that by pleading guilty, he would be giving up the right to “forcé the District Attorney to call witnesses who, under oath, would have to testify against me at trial; and to have my attorney ask questions of each of those witnesses.” Defendant initialed “S.E.S.” next to this right and also signed the bottom of the plea form, as did his defense attorney and the trial judge. In State v. Mosley, 10-266 (La. App. 5 Cir. 11/9/10),
Based on the foregoing, defendant failed to meet his burden under Shelton, supra, to produce affirmative evidence of an infringement of his rights or a procedural irregularity in the taking of the plea. This assignment of error is without merit.
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux,
Lack of a ruling on defendant’s motion to reconsider his sentences
First, as to defendant’s motion to reconsider his original sentences, defendant’s argument during the habitual bill hearing appears to pertain to his original sentence on count one, which was vacated. In giving reasons for denying the second motion to reconsider the habitual offender sentence, the trial judge stated that defendant had a prior conviction for carjacking and that defendant knew the victim. Thus, the trial court’s reasons indicate that it denied the oral motion to reconsider the habitual offender sentence made on that date, rather than the original motion to reconsider. The hard labor commitment from the habitual offender | shearing provides: “Motion to Reconsider Sentencе filed in open court and DENIED.” La. C.Cr.P. art. 881.4 provides that if it is “necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the district court with instructions to supplement the record or to hold an evidentiaiy hearing.” Ordinarily, where an appellant alleges a sentencing error on appeal, along with one or more additional errors, and where the trial court has failed to rule on the appellant’s timely motion to reconsider sentence, this Court has ruled on the merits of the other assignments and remanded the matter for a ruling on the outstanding motion. Mosley,
Lack of proof of “cleansing period” in the habitual offender proceeding
Second, the Habitual Offender Law provides that it is inapplicable where more than ten years have elapsed between the date of the commission of the current offense and the expiration of the maximum sentence of the previous conviction. La. R.S. 15:529.1(C); State v. Mosley, 08-1319 (La. App. 5 Cir. 5/26/09),
The certified records of defendant’s carjacking conviction introduced into evidence (case number 04-6312) show that on September 21, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant with carjacking. On December 13, 2004, defendant entered a plea of guilty to the offense and was sentenced to five years at hard labor without the benefit of parole, probation, or suspension of sentencе. The instant offenses were committed on June 20, 2015. Hence, more than ten years had elapsed between defendant’s predicate conviction for carjacking on December 13, 2004 and the commission of the instant offense on June 20, 2015. Thus, the State was required to prove that the underlying offense was committed within ten years of defendant’s release from state custody for the predicate conviction in case number 04-6312. During the habitual offender proceeding, the State provided the following argument:
lisln 2004—On December 13, 2004, while being represented by Tracy Glori-oso, the Defendant pled guilty as charged to carjacking. And that was in 2004. He received five years DOC.
This offense in this case was June 20th, 2015. That is less than six years past since the completion of the sentence. So therefore it’s within the ten-year range that is also required.
Upon review, we find that the record fails to include any other evidence or information concerning defendant’s actual discharge date from state custody on his sentence for his carjacking conviction. Therefore, the State failed to provide sufficient evidence to meet its burden of proving that the predicate conviction for carjacking fell within the ten-year “cleansing period” prescribed by La. R.S. 15:529.1(C). Accordingly, the trial court erred in finding defendant to be a second felony offender.
Considering the foregoing, we vacate defendant’s adjudication and enhanced sentence as a second felony offender. See State v. Payne,
CONCLUSION
For the foregoing reasons, defendant’s convictions are affirmed, defendant’s adjudication and
sentence as a habitual offender are vacated, defendant’s original sentence on count one that was vacated is reinstated, and the matter is remanded to the trial court to rule on defendant’s outstanding motion to reconsider his original sentences and for further proceedings as warranted.
CONVICTIONS AFFIRMED; HABITUAL OFFENDER ADJUDICATION AND SENTENCE VACATED; ORIGINAL SENTENCE ON COUNT ONE REINSTATED; REMANDED WITH INSTRUCTIONS
Notes
. See Errors Patent Review for discussion regarding the failure of the trial court to rule on defendant’s motion to reconsider his original sentences.
. Detective Kister testified that members of "Project STAR” patrol predominately high drug activity areas in the parish.
. At trial, Detective Kister identified the photographs of the jewelry in question as the objects that were removed from defendant’s pocket.
. The testimony established that the location where Detective Kister spoke with defendant and found the jewelry was 1.8 miles from Ms. Lamury’s residence.
.Ms. Lamury identified the wedding set, the gold band, the costume jewelry, two watches, and a jewelry box for the wedding set from photographs.
. Miranda v. Arizona,
, The interview was admitted into evidence and published to the jury.
. The trial judge instructed the jury as to the law of principals.
. It need not be shown that a person was present in the structure at the time of the burglary, only that someone was living in the housé at that timе. See State v. Conn,
. Although defendant’s original sentence on court one was vacated by the trial court as part of its sentencing of defendant as a habitual offender, because we have found an error in defendant’s habitual offender adjudication which necessitated our vacation of defendant’s habitual offender adjudication and sentence, we have reinstated defendant's original sentence on court one. See infra.
. La. C.Cr.P. art. 916 provides, in pertinent part: "The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to: ... (3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence. ...”
. In State v. Raymo,
. This Court reached the same conclusion under both similar facts and procedural posture in State v. Mosley,
. We further note that double jeopardy principles are inapplicable to sentence enhancement proceedings. State v. Dorthey,