State Of Louisiana VS Tony Mosely

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 0172 STATE OF LOUISIANA lJ1 VS L TONY MOSELY N8 i j L i JUDGMENT RENDERED 6 2008 JUN ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT DOCKET NUMBER 42701 DIVISION F PARISH OF ST TAMMANY STATE OF LOUISIANA THE HONORABLE MARTIN E COADY JUDGE Walter P Reed District Attorney Appellee Attorney Covington Louisiana for Plaintiff State of Louisiana Frederick H Kroenke Jr Attorney Baton Appellant Tony Mosely Rouge Louisiana BEFORE L IYl CC0ct S f for Defendant GAIDRY McDONALD AND McCLENDON JJ 1I11t m flrLf hd cJc i Jrlf f 37d j 0jNJ McDONALD J Tony Mosley Defendant of counts not to defendant court be served court tried before to La R S bill of information with 14 62 1 ten years at serve entering pleas of After him jury who found a guilty hard labor court vacating benefit of probation Defendant adjudicated defendant defendant resentenced defendant on charged each count proceedings against parole to or a original s term of suspension as sentence eighteen third a hard labor without at years felony habitual Count One the trial on of sentence appeals citing the following assignments of error A rational trier of fact could not conclude that the State essential elements of the crime therefore the evidence 2 as hearing defendant admitted the allegations contained in the The trial After instituted habitual offender subsequently At the bill 1 two concurrently with each other defendant offender was sentenced defendant The State multiple charged by simple burglary violations of guilty The trial was was court erred in The trial reasonable doubt and find defendant guilty beyond insufficient to proved the a denying the defendant s motion to suppress the evidence We sentence to affirm as to defendant Count Two s convictions Because defendant s habitual offender sentence and affirm the sentence we have found sentence as habitual a offender adjudication sentencing error enhanced Count One we and with respect amend that amended FACTS On February 24 manager of the Office tills at a register wheelchair 1 was Depot on Karen Landry from the store charged not tried in the instant as a was working Gause Boulevard in Slidell in the front of the store approach Ronnie Noel 2007 proceeding 1 aisle make same a the acting store Landry was emptying when she noticed s center codefendant in the as a black male in a big loop then approach bill of information however Noel was Landry asked the agam man ifhe needed any assistance and he Landry testified that something about the something was right The not man aisle back towards the merchandise man gave her a store behind a the man pharmacy She noticed nearest pharmacy the end of Gause Boulevard where to located were down the not as if center area register approach her and ask where the strange feeling proceeded in the wheelchair Angelle Noullet another employee of Office Depot front of the replied he did a a Noullet noticed that the black male in located was CVS standing was at wheelchair a Noullet directed pharmacy and a Walgreens in the wheelchair man the never stopped moving toward the exit as she provided directions A short time later of the store directly Landry entered the employee lounge located in the across the hall from the from her purse Employees stored employee lounge Landry noticed that the lock on the their men s restroom to personal belongings on retrieve rear something in lockers in the her locker had been and was purse was cut ground When Landry opened her locker she discovered that her mlssmg Landry notified other employees discovered that the locker purse was to containing her check their Noullet then belongings purse had been cut open and that her mlssmg Landry contacted the police and Corporal Corey Pertuit of the Slidell Department with was dispatched Landry and Noullet their purses stolen missing who Corporal the After he arrived scene Corporal Pertuit spoke reported that their lockers had been broken into Pertuit learned that both Landry and Noullet and were credit cards and checkbooks Based to the to Police CVS on his interviews of Landry and Noullet Corporal Pertuit proceeded pharmacy in search of the Corporal Pertuit spoke man with Joshua Olsen 2 a in the wheelchair clerk Olsen Upon his arrival reported that two black males to in one Olsen the a wheelchair had just made men left and to appeared be According purchases of two gift cards going in the direction of the Walgreens Pharmacy After Pertuit left Office Corporal purses in the trash bin inside the directly across credit card had just handicapped stall of the the hall from the companies been made at CVS a men s stolen and as was located restroom contacted employee lounge Landry report the card to Depot Landry and Noullet found their one informed that a of her charge Landry then notified the police of this pharmacy information In the meantime he observed The men two a Corporal Pertuit proceeded black male in the men were near a wheelchair entrance and advised them he wanted Pertuit also advised both men According to Corporal to where they were observed could mesh a see a Pertuit both his men seemed a bit bothered where men Corporal were was headed and bag hanging from the back of the wheelchair Corporal Pertuit cut from inside the Landry s name date bag Corporal and Noullet man who and of birth s was Corporal Pertuit felt a to James Jones provided to pocket knife which he secured a any that the as identification birth date but stated defendant pat him down for weapons 3 aware standing later identified whether he had have any identification document Due Pertuit decided Pertuit was lockers he did name was to the they that he Corporal Pertuit speaking replied that his Corporal burglary rights Defendant not a men cutters While Corporal Pertuit asked the defendant Corporal Pertuit approached the speak with them about of their Miranda coming from pair of bolt locks had been store After he arrived another black male being pushed by Corporal Pertuit asked the them speaking to of the Walgreens to s nervous behavior During the patdown Corporal Pertuit also felt what he believed patdown defendant kept attempting to an like confirm defendant s to attempt and discovered it object turn to around and identity Corporal was a checkbook Corporal Pertuit discovered it bore the name be During the wallet appeared In nervous very Pertuit retrieved the wallet When he of Karen a opened Landry one the checkbook of the burglary victims Corporal Pertuit placed both being on the identified ground and recovered bearing with a the his way on two CVS of names to time he to was arrest the in the wheelchair man Walgreens Corporal Pertuit further searched the cards from defendant gift Landry pair of vise grips that According under Defendant claimed he had found the checkbook Ronnie Noel as men and Noullet was were in the mesh s pants pocket Credit cards also recovered from Noel bag on men along the back of the wheelchair Corporal Pertuit approximately forty minutes had elapsed from dispatched to Office Depot until he encountered the two the men at Walgreens During the booking provided different birth date than he had earlier a attempted Corporal Pertuit noticed that defendant process to sign a different name over Pertuit subsequently learned defendant Defendant did not testifY the It also he name s name was appeared that defendant originally wrote Corporal Tony Mosley at trial SUFFICIENCY OF THE EVIDENCE In to his first assignment of error defendant argues the evidence is insufficient support his convictions for simple burglary argument First because structure no defendant maintains that there is as defined by state Second defendant argues that there is had any Defendant presents knowledge of the theft no law evidence by Noel the 4 was man no evidence of fold a two a burglary shown to have been entered to show he participated in the wheelchair in or The constitutional standard for enunciated in Jackson L Ed 2d 560 1979 favorable the to 443 U S Virginia v is whether prosecution or not was testing the sufficiency of the evidence all of the elements of the crime had been 1st Cir 113 06 App art 950 So 2d 727 821 innocence On appeal the reviewing explanation of the events So 2d 983 for reasonable doubt 15 438 court commit a felony a the trier of fact provides that constituted In a 99 3019 1st 01 Cir 803 804 So 2d 647 01 entering of any See La R S structure with the intent 14 62 A presented In the present is whether the lockers within the meaning of La R S 14 62 A the supreme statutes undeclared felonious intent is voluntary v possible We disagree discussing the unauthorized entering element ofthe aggravated burglary simple burglary State p of exculpatory an 14 12 any theft therein structure determine if another defendant could afford defendant argues that the central issue case not hypothesis La 14 12 the When App is the unauthorized or does Schleve v La objective standard for testing La 2001 0115 La Simple burglary a an 1192 93 writs denied 2001 0210 775 So 2d 1187 12 20 00 and reasonable doubt This a 5 State most Godbolt 06 0609 p 3 v both direct and circumstantial hypothesis of innocence suggested by to State light rational trier of fact that a be satisfied the overall evidence excludes every reasonable must 2789 61 730 circumstantial evidence La R S analyzing convince to proved beyond The Jackson standard for review is overall evidence 2781 the evidence when viewed in the sufficient standard is codified in La C Cr P 307 319 99 S Ct consent Smith express or not building that is of the 10 29 99 has stated that if it is with the owner or an entry with knowing and occupant of the premises 748 So 2d 1139 1143 the In the building at public and within the confines designated is open to the when it is open to the unauthorized implied 98 2078 p 8 La court public the 5 consent to enter case of the times implied regardless of the intent of the open to the implied public person Although entry into entering so public during given hours is considered as of the consent and areas the owner not to private a building authorized entry with the an implied authority extends only to the designated or employees only areas of the building State v Schleve 99 3019 at pp 6 7 775 So 2d at 1193 94 In the located in the Office present the evidence case employee lounge Depot The door to the a separate enter the employee lounge Thus burden of proof with respect to not from the room employee lounge Landry testified that she had Only clearly showed that the lockers granted under the employee permission non of to State carried its jurisprudence the showing that there access areas clearly marked Employees was any public were unauthorized entry of was an a structure Second hypothesis defendant argues the State failed of innocence those defendant found the items being that Noel Defendant maintains that recovered in the to handicapped open the lockers In rejected a case light most removed items from no one saw stall of the men s restroom s evidence Landry him in Office the back ofthe Noel the defense offered an was no s to or that indicate and Noullet s Depot the purses were and the bolt cutters used wheelchair involving circumstantial evidence in which the jury has reasonably another possible events in were on or exclude every reasonable gave the items to defendant Defendant argues there defendant broke into the lockers purses to at trial the reviewing court does not determine if hypothesis has been suggested by defendant that could explain the exculpatory fashion favorable to Instead the court must evaluate the evidence in the State and determine if the hypothesis is sufficiently reasonable that proof of guilt beyond precluded from acting a reasonable doubt as a thirteenth 6 a rational An juror in possible alternative juror could appellate court assessing a is what not have found constitutionally weight to give evidence in criminal of the trier offact that determination cases State cut burglaries the sound discretion on favorable Landry s to the locks purse was a man in the wheelchair cancel her credit card or locker itself being Discover card issued see if he could Landry contacted the Discover card company to to During this call Landry learned that purchase had been made Another gift card had been purchased in the at the the record the State Shortly after Corporal Pertuit left Office Depot name locate the most accomplished by were One of the credit cards stolen from in her solely Schleve 99 3019 at pp 5 6 775 So 2d at 1193 v Viewing the evidence in the light reflects that these rests nearby CVS phannacy in the amount of an unauthorized amount 110 28 of 106 95 using Landry s Capital One MasterCard Although as defendant in Office no one saw 200 00 worth of CVS being with Noel in CVS and purchasing two the different credit cards Depot Olsen identified defendant gift cards using forty minutes of being dispatched respond to burglary complaint Corporal Pertuit encountered defendant pushing Noel in his wheelchair Office Depot containing wanted to Noel both a near Landry pair of bolt of Walgreens Pharmacy less than cutters and a appeared bothered by having very s Pertuit with wheelchair s pair of vise grips speak with defendant and Noel about s name defendant entrance Hanging from the back of Noel provided Corporal appeared the Within false to recent a speak After to information the during the weapons patdown reported as having been stolen from a mile from a mesh explaining bag that he burglary defendant and police officer Defendant regarding nervous was to A her purse his identity and checkbook was bearing recovered from pocket Detective Garrett Aucoin of the Slidell Police the defendant folIowing his arrest After 7 Department transported only delivering defendant to jail Detective Aucoin found a Discover card bearing Landry s the back passenger on name floorboard of his unit Possession of recently stolen property is possessor committed the 1984 However has been lying wrongdoing State State burglary writ denied 572 So 2d 65 in the defendant s a indicative of La convictions for both La 423 an awareness App Moreover to we to the of 1st Cir 1990 conclude defendant find that the State counts the evidence of simple find involved was as a sufficiently negated contradictory hypotheses of innocence case we prosecution that Noel stole the items and gave them of this circumstances as favorable most rational fact finder burglaries or 445 So 2d 422 La 1991 alternate but stolen items itself sufficient proof that the Brown v recognized Viewing the evidence in the light principal by Alpaugh 568 So 2d 1379 1384 v the evidence allows not that he found the Under the to him sufficiently supports defendant s burglary MOTION TO SUPPRESS In his second denying his motion checkbook while the a defendant contends that weapons Landry Thus defendant urges this item was improperly s Pertuit admitted that a wallet like object in was not seized and should have suppressed during a without v Corporal erred in court his person on patdown he felt and removed The State bears the burden of only defendant argues the trial pants pocket ofthe defendant knowing that this wallet like object weapon been error suppress the evidence found to Specifically conducting the rear assignment of to search without a a warrant few a is per C Cr P warrant La se 412 U S 218 art 703 D A search conducted unreasonable under the Fourth Amendment specifically established Bustamonte proving the admissibility of evidence seized and well delineated 93 S Ct 2041 8 subject exceptions Schneckloth 36 L Ed 2d 854 1973 One such warrant US exception when it is 218 224 94 S Ct 395 U S 752 89 S Ct Sibron Where 1968 467 to 62 63 United States arrest justified as incident to 40 63 not 20 L Ed 2d 917 1902 the search exist until after the search However followed quickly United States search on cannot Kentucky be necessary 448 U S at 111 arrest not State valid if probable n v cause offense probable cause Rawlings versa 1980 at 2564 412 So 2d 1065 conducted and circumstances within the existed prior s arrest person that the Kentucky 448 v Naturally the fruits of to arrest cause n 6 to be made before instead of 1068 If Rawlings arrest an La is justified It is well 1982 immediately before formal to the the search State v arrest Sherman 931 So 2d 286 292 lawfully to the formal particularly important found it 100 S Ct to arrest La Code Crim P reasonable and 6 to arrest A peace officer may an not support the probable Melton 2005 0779 pp 8 9 La 4 4 06 reasonable does exist and unreasonable for the search established searches incident are to v challenged search of petitioner rather than vice arrest before the search it is after the to arrest cause the heels of the arrest 100 S Ct 2556 2564 65 L Ed 2d 633 111 the search probable Supreme Court has preceded the U S 98 v when Sibron New York 392 U S at 88 S Ct at 1902 03 a lawful an part of its justification 1889 88 S Ct California v It is axiomatic that serve as a Robinson 414 v Chimel 1973 1969 and arrest an does cause be search may be conducted without 23 L Ed 2d 685 precede cannot a 38 L Ed 2d 427 392 U S probable lawful a 471 2034 not New York v this rule is that incident an incident search may to arrest a person without believe that the person art 213 Probable arresting trustworthy information caution in the belief that the person to officer are s to cause a warrant be arrested has committed exists when facts to arrest knowledge and of which sufficient to justifY a man be arrested has committed 9 when he has or is he has of average committing an offense need Although sufficient suspicion mere proof to justifY cannot convict Probable particularly 01 1721 average pp 3 4 La defendant present to prior checkbook App case off in the store 813 So 2d 640 the was regarding burglaries the closest were store two in the direction ofthe The the men burglary nervous Noel s within two men were seen to and read them their Miranda containing point in s in a Corporal arriving wheelchair approximately at s or CVS a had been at was 5 8 reported to 100 00 each leaving CVS and heading time knowledge a pair of bolt a men near The mesh the Corporal Pertuit approached speak with them about rights Corporal Pertuit also observed Corporal Pertuit After Walgreens and encountered both and advised them that he wanted to At that Landry black male in cards valued at gift forty minutes of his initial dispatch wheelchair arrest Walgreens pharmacy Corporal Pertuit proceeded entrance two man The clerk pounds defendant different credit cards a another black male Corporal Pertuit that defendant purchased using cause to pharmacies discovered previously in the accompanied by suspicious a pharmacy Corporal Pertuit learned about 180 probable had either had their handles employee lounge The victims both mentioned that shortly before weighing 644 writ denied 02 The record reflects that pants pocket s CVS the closest tall and men Lumpkin v removing the wallet like object Pertuit Corporal wheelchair who obtained information seen State to act expected examine whether there we from defendant cut be 1st Cir 3 28 02 Pertuit learned the lockers in the their locks can judged by the which average on not 854 So 2d 342 1124 La 9 26 03 In the police officers be must cause probabilities and practical considerations of everyday life and the officer does arrest an men a recent became bothered and bag hanging from the back of cutters it is clear that the facts and circumstances within were sufficient 10 to justifY a belief that defendant and Noel had been involved in the away and which had been to the at cause s motion Depot located less than Accordingly defendant to arrest discovery of Landry violate defendant s Fourth Amendment defendant Office reported within the hour Corporal Pertuit had probable down search that led burglaries to suppress was prior mile find that we conducting the pat to checkbook s a This search did rights and the trial court not denial of s proper SENTENCING ERROR record in this defendant term of La Code Crim P art 920 2 required by As and case following of sentence Offender Law sentencing at adjudication the trial hard labor without benefit of This sentence is not Any provides sentence We also to the impose any imposed probation parole of a or The Habitual sentence under La R S simple burglary does for Accordingly the trial 14 62 B sentence sentencing court statute by suspension or penalty provision See La R S parole eligibility authorized note authorized In imposed under the provisions of this Section shall be without benefit of probation 15 529 I G review has been made ofthe has been discovered error his habitual offender eighteen years suspension a a defendant s court habitual not bar was not offender adjudication without benefit of parole The on Count I insofar Therefore to sentence we eighteen sentence imposed by the as it denied the defendant amend the years at In all other court pursuant to sentence on to count I to right to parole eligibility is illegal provide that defendant hard labor without benefit of respects the convictions and CONVICTIONS probation sentences are or is sentenced suspension of affirmed HABITUAL OFFENDER ADJUDICATION SENTENCE ON COUNT 2 AFFIRMED OFFENDER the Habitual Offender Law ADJUDICATION AND SENTENCE FOR HABITUAL 1 AMENDED AND AS COUNT AMENDED AFFIRMED 11 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 0172 STATE OF LOUISIANA VERSUS TONY MOSELY McCLENDON J I respectfully agree in part and dissent in agree with the part and assigns report in all respects except on reasons the issue l of the court s error in sentencing Correction of this sentencing discretion thus sentence lies within the trial I would have remanded for resentencing

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