State of Louisiana VS Brainard Steward
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 KA 1226 STATE OF LOUISIANA VERSUS BRAINARD STEWARD Judgment Rendered Appealed from DEe 2 3 2009 the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Case No 21771 The Honorable Jane Triche Milazzo Ricky L Babin District Judge Presiding Counsel for Appellee State of Louisiana Attorney Donald D Candell Assistant District Attorney Gonzales Louisiana Katherine M Franks Counsel for Defendant Abita Brainard Steward Springs Louisiana BEFORE Appellant DOWNING GAIDRY AND McCLENDON JJ GAIDRY J The defendant Brainard Steward with ten counts of of Count 12 14 27 and La R S simple burglary guilty not attempted simple burglary court to run For the imposed and for enter imposed attempted simple burglary on The trial to guilty of the as five years serve at hard labor for simple attempted simple burglary The defendant appeals designating four review following order of guilty Counts 1 2 3 5 6 7 8 9 and 10 on reasons we reverse attempted simple burglary an him in offense of and concurrently assignments of error for 11 and 12 jury found A years at hard labor for each burglary and three in violation of La R S responsive sentenced the defendant conviction all 14 62 Count 4 and on Count 11 on bill of information attempted simple burglary Counts 14 62 and two counts of charged charged by Counts 1 10 simple burglary violation of La R S was acquittal the convictions and sentences in Counts 2 3 5 6 7 8 9 and 10 We affirm the convictions and sentences in Counts 1 4 and 12 FACTS On January 2009 Lieutenant 29 Parish Sheriffs Office a m when he noticed vacant and house was engine a over an area the was warm patrolling white Ford This house within properties was was although it an muddy shoe prints on neighborhood around 3 30 Explorer backed into the carport of experienced weeks was a pulled numerous burglaries a of similar Mayeaux noted that the Explorer very cold Upon investigation Mayeaux and open and the dishwasher area newly constructed had not yet been occupied that had preceding Joey Mayeaux with the Ascension a night back up officer found the house away from the wall They also noticed the carpet The officers tracked the 2 s footprints wet out the back door pasture and across a to tree a under which Brown and Amorita Walker both of whom with the keys the to appeared Brown also had Explorer a they found Kevin to be hiding along pair of wire cutters in his pocket Detective John Hebert the Explorer belonged to the defendant characterized his and Burglaries explained that used they attempted on January places to together cocaine haul the stolen merchandise After burglarize they and committed Brown and the defendant would sell the merchandise to burglaries 29 buddies with as crack the defendant chose the provided the Explorer to the one he and the to Brown relationship with the defendant to Brown According According like the burglaries defendant committed many He investigated the burglary and determined that buy drugs SUFFICIENCY OF THE EVIDENCE In his first two assignments sufficiency of the evidence first at to of error the defendant support his convictions challenges Specifically the in his assignment of error the defendant contends that the evidence presented trial fails assignment because to meet of In his second sufficiency the defendant argues that the evidence is insufficient error the sole the Jackson criteria for proof of the corpus delecti of the crime is hearsay evidence In reviewing Louisiana appellate United States 2781 the the sufficiency of the evidence court is controlled Supreme Court in Jackson 61 L Ed 2d 560 Legislature in 1979 to support conviction v Virginia 443 U S 307 That standard of appellate review when viewed in the 3 a by the standard enunciated by the enacting Code of Criminal Procedure whether the evidence a light most 99 S Ct adopted by article favorable 821 is to the prosecution was sufficient convince to elements of the crime had been Crim P 821 B art State So 2d 654 660 State testing pp 4 5 App La of innocence 1st Cir 6 2102 determination of the a 822 So 2d 141 is free jury of will its not reweigh the State guilt v So 2d 929 932 of fact defense another 55 61 Taylor When the intent App or to not 97 2261 a case for accept Moreover where there is State to subject 5 6 matter is a La or 1st Cir other upon one a a of the Richardson 459 So 2d v s determination of the An factfinder App s appellate determination 1st Cir 9 25 98 721 hypothesis of innocence presented by the a reasonable doubt State v is Moten 510 So 2d writ denied 514 So 2d 126 La 1987 is the unauthorized structure commit in conflicting depends appellate review to overturn pp in whole reject or involves circumstantial evidence and the trier the that raises Simple burglary watercraft objective hypothesis falls and the defendant is guilty unless there hypothesis La an 144 The trier of fact evidence reasonably rejects that to sufficiency App 1st Cir 1984 not is The 1988 Patorno 2001 2585 v the resolution of which matters weight to be given evidence is court See State credibility of the witnesses the of the evidence La 1308 09 La 946 be satisfied the overall evidence excludes must hypothesis testimony about factual 38 1129 06 La circumstantial evidence La R S 15 438 part the testimony of any witness 31 10 in Article 821 incorporated analyzing As the trier of fact weight reasonable doubt La Code the overall evidence both direct and circumstantial that the factfinder every reasonable a Mussall 523 So 2d 1305 v reasonable doubt When provides proved beyond Ordodi 2006 0207 p v Jackson standard of review standard for rational trier of fact that all of the a felony movable or or entering of any dwelling vehicle immovable any theft therein 4 or any La R S cemetery with 14 62 A An attempt occurs crime does the when any person who omits or an act of his accomplishing actually accomplished his an to and whether the crime La R S explicitly 14 24 14 principal State 38 258 4 p La a the defendant defendant does s 52 La 1982 not conviction will State charged cert 4 22 04 308 La 1974 873 So 2d 747 no principal as charged as State an as a Haley v 750 writ denied 904 So 2d 728 supported by the evidence the offense 290 So 2d 307 App 2d Cir 2004 2606 La 6 24 05 When There is irrefutably evidences that he is charged Peterson v not or principals are 1 23 the accused name act directly or commit the crime to crime a commit the they directly That the accused is indicted for the offense itself and accessory after the fact toward tending directly aid and abet in its commission indictment a La R S 14 27 A purpose absent or parties that requirement commit to It is immaterial whether he would have indirectly counselor procure another and therefore intent specific for the purpose of and object the offense constituting a all persons concerned in the commission of Furthermore whether present having not be reversed whether long as ex object to a legislatively responsive as or not that the evidence is sufficient reI Elaire denied 461 U S 959 v verdict verdict is to support Blackburn 424 So 2d 246 251 103 S Ct 2432 77 L Ed 2d 1318 1983 With regard defendant of the to Counts 2 3 5 6 7 8 9 and 10 the jury convicted the responsive verdict of record is void of any evidence contends that Hebert 1 s regarding attempted simple burglary these specific offenses The State testimony adequately supports these charges The State contends without citation to the record that Hebert testified counts with which defendant was charged The 1 The on each ofthe the Sheriffs Office had received complaints that the structure had been entered without authorization and 5 burglarized After a record however indicates to only that Hebert investigated unfinished homes in Ascension Parish and that structures testified Parish from which miscellaneous unidentified items generally that he participated in but he could because he did was that went we the the Actually places say know what not that the defendant them not city one he that took him explained that he and the defendant items and buy drugs The State numerous parish or stole only evidence that the identified theft and capacity prove beyond offenses return of viewing thorough 2 as a along during was to in the Brown to places explained Burglarize sic a were the Brown also with others would sell the stolen any of the to failed 5 to the 7 6 charged to introduce 8 9 and 10 entered with the intent entered by the defendant either principal to support the convictions lacking Having were as charged offenses but in Counts 2 3 structures or the offenses for which he responsive verdicts Accordingly all the evidence in the must have a review ofthe record Hebert testified burglaries in Ascension to commit a perpetrator or offenses the State failed to as a reasonable doubt that the defendant committed either the charged necessarily Brown Burglaried we evidence entered without authorization in his 2 proceeds allegedly However this is not the or a stolen be to up with him contends that such evidence is unnecessary felony were acknowledges that the record is devoid of evidence what the defendant were reported actually made were places that with the the other to specifically where the burglaries occurred Burglaries the burglaries Hebert considered those sites at sites under construction Burglaries as rash of a specifically light as find no convicted most favorable as to the to the 6 alleged in Count 4 s after prosecution sufficiency of the such statement to the offense by the jury any rational trier of fact reasonable doubt we was only evidence support these charges to convictions and and enter sentences therefore We order of an must acquittal in the reverse Counts 2 3 5 6 7 8 9 and 10 The found the defendant jury guilty as charged in Count 4 which alleged that the defendant committed simple burglary of a specific address owned by Tony Rhodes Count 12 burglary which defendant alleged a residence guilty of the at Bluff Pass Drive on regard to responsive verdict around 1 00 Ford was of surveillance a m carrying camera at an were The defendant was positively object object witness is sufficient 2003 3067 Weary 549 U S 1062 2000 0674 p 1075 to the to support owner p burglary La 11 La 6 29 01 establish circumstantial evidence that can the to 18 3 elicit accused be used 7 at night carrying regard 311 2002 cert no to show that by only State v denied cert Furthermore v Neal although the victim of permission an one denied 535 U S testimony from had large a identity State to 1127 06 658 Hebert photographs by 931 So 2d 297 796 So 2d 649 152 L Ed 2d 231 occurred the defendant s white identification 166 L Ed 2d 531 generally accepted practice to Positive 4 24 06 127 S Ct 682 122 S Ct 1323 it is the 18 burglary of the house conviction with a a containing the photographs identified in the his vehicle a to and Brown outside of the home in the middle of the unidentified of that address showed the defendant unidentified provided to the police by Rhodes jury also found the stolen from inside the home Hebert stated that the flash drive Explorer attempted simple 1 Count 4 Hebert testified that a and 2007 attempted simple burglary alleged in Count that location and that unidentified items Pictures from The Avenue Crestway on 10 January that the defendant committed residence in Darrow Louisiana With on to a enter unauthorized entry occurred Here State Jacobs 572 So 2d 1140 v evidence that Rhodes made 1143 report of a La to aid Department and provided them with surveillance photos investigation of the burglary combined with the show the defendant outside of Rhodes loading large a item into his were house in the middle of the That combined with Hebert stolen from the house and Brown commission of defendant s direction is sufficient evidence charged verdict as to Count 4 2007 around 3 30 he am constructed home that he knew and there footprints under were out Explorer with was to saw a white Ford muddy footprints inside and Explorer The house s at guilty on at was the as January a newly unlocked Mayeaux followed the muddy Brown and Walker had wire cutters and the them keys to Mayeaux noted that a dishwasher had been pulled not the away looked that way the last in the house within his control and that Brown defendant s defendant testified that be uninhabited The evidence established that the was testimony that support the jury Jody Mayeaux from the wall and he remembered that it had time he an the back of the house until he discovered Brown and Walker tree a s show that simple burglary As for Count 12 Lieutenant 29 to to night testimony regarding his s with the burglaries numerous in the themselves which photos Explorer is sufficient evidence unauthorized entry occurred items s 1990 the Sheriff s to burglary a 1st Cir App permission s guilty never used the That combined with Brown defendant chose the houses support the jury Explorer belonged as to burglarize renders charged verdict burglary 8 as to the defendant Explorer without the s testimony that the the evidence sufficient to to Count 12 attempted simple Lastly burglary Brown with regard the address at he did burglary occurred previously he committed specify not which occurred alleged acknowledged that although Count 1 Hebert testified that he to a burglary in this to simple burglary in Count 4 and 12 support the jury cannot say we 14 946 So 2d at 662 Ordodi 2006 0207 at p in the favorable most the to offenses beyond reasonable 2 3 5 6 8 9 of innocence all of the evidence conclude there to However as and 10 the facts established proved the exclusion noted above by viewed in the light most favorable rational factfinder that the State simple burglary beyond a the or This we render assignment an s these to Counts the direct evidence and prosecution could even not when persuade a all of the elements of the offense of offense of Accordingly attempted simple burglary those convictions and sentences order of acquittal of error has merit The defendant contends Hebert the proved responsive reasonable doubt reversed and to was of every as reasonably inferred from the circumstantial evidence those are we s See presented find that the State and reasonable doubt a hypothesis 7 to s responsive s that the trier of fact Viewing prosecution sufficient evidence for the trier of fact Brown 1 determination is irrational under the facts and circumstances light that date on testimony combined with mentioned testimony is sufficient As to Counts 1 2006 December 19 Darrow a the address of the house in Darrow where that Nevertheless verdict of attempted on investigated in his second assignment of error that testimony regarding the fact that various burglaries and attempted burglaries occurred is hearsay and cannot be considered in sufficiency of the evidence because hearsay is insufficient of the corpus delicti See State v to evaluating the establish Robinson 34 383 pp 9 11 9 La proof App 2d Cir 2 28 01 3 28 02 So 2d 780 crime occurred 1959 a mere State Brown v defendant s confession issue is not alone hearsay 236 La When State v determining through the 2001 2082 pp 2002 2549 a at crime 207 not 210 La La was a this rule is Although State v or contradicted sworn the trial at declarant that is App the evidence not by the the case 1st Cir 1988 presented a to of 700 of the confession Brown 236 La the State to at establish corpus See State 826 So 2d 616 Furthermore v 623 Lee writ proof that necessary for conviction State v Freetime 334 So 2d here an which no objection is lodged if the essential element thereof and is recantation of the See State v Polkey presented at trial was the out of court 529 So 2d 474 writ denied 536 So 2d 1233 rational 976 evidence is the hearsay La 1989 On juror making credibility choices favorable In Robinson the Second Circuit reversed the conviction where the evidence 1 7 97 Hernandez 488 So 2d 972 inapplicable exclusive evidence of the offense 3 236 reliability 14 La p committed obviously general rule hearsay evidence 1986 La the 233 convict the defendant the 852 So 2d 1019 constitutes substantive evidence 476 to 8 21 02 App 4th Cir 9 5 03 2d So to test independent element of the corpus delicti an 108 a La 1976 As La all requires the accused committed the offense is but it is 571 testimony of the victim of the crime 6 7 La the existence of the corpus delicti the No rule 108 So 2d at 236 37 denied 562 whether there is sufficient evidence which establishes the fact that delicti 2001 1313 establish the fact that Connolly 96 1680 issue is whether there is any evidence 573 cannot the purpose behind this rule is Traditionally So 2d 810 820 writ denied 1219 20 3 812 So 2d 642 It is true that 1213 testimony only non hearsay of a co defendant who denied that the crime occurred 10 the State could have found the defendant to notwithstanding that it less than was overwhelming See Hernandez 488 So 2d hearsay testimony of Counts 1 guilty and 4 and 12 partially based This at 976 77 upon assignment of error lacks merit PROSECUTORIAL MISCONDUCT In prosecutorial that he assignment of his third was misconduct denied contention that the prosecutor without defendant claim as one The brought lengthy bill of a procedural bar of Article 841 A contemporaneous objection rule which either could have been avoided immediate halt 2 28 96 103A I was La v 2008 0952 improperly vouched La App 2d Cir 2 22 02 irregularity to at a defendant from to claims of La corrected for witness 2 28 01 809 So 2d 978 s State or art by styling his at to error appeal cannot 3 26 08 State 136 be availed of after La Code Evid contemporaneous 979 So 2d 678 e g 683 State writ claim that prosecutor v Lowery 33 905 781 So 2d 713 732 writ denied 2001 1041 claim that prosecutor made false 11 a on errors 117 S Ct 162 This 997 So 2d 560 credibility for 93 2201 p 7 La occurrence 841 A to the time or should have Taylor v gambling prosecutorial misconduct See App 2d Cir 12 12 08 resorting the time of its P Code Crim Jackson 43 139 p 8 La denied the specifically designed IS denied 519 U S 860 cert objected objection rule applies or the proceedings An 1996 verdict unless it art to 669 So 2d 364 368 L Ed 2d 106 upon the of prosecutorial misconduct favorable verdict and then upon conviction an jury However support all the charges alleged promote judicial efficiency by preventing put that information to trial avoid the cannot the prejudiced cause to probable contends allegation of misconduct is based fair trial His a the trial and permeated so the defendant error p 25 La statements to jury State 571 So 2d 749 Bishop v that prosecutor used of on probable this misconduct App 2d Cir contemporaneous objection no nor objection any to the trial court Accordingly the defendant has waived cause allegation by his failure La Code Evid art 444 So 2d 315 La claim 1990 perjured testimony The record discloses prosecutorial 753 103 A 316 La I to enter a determination error based contemporaneous objection See La Code Crim P 1st Cir 1983 App s claims of to art any 841 A State v Sisk writ denied 446 So 2d 1215 La 1984 Furthermore the fact that the State failed a reasonable doubt does establish not a lack of charges Had the State called the alleged victims more questions this Court burglarized have had us a s regarding that the lack of evidence probable cause This to specific places of the analysis different result We the to support testify or directed he and the defendant sufficiency of the evidence conclude based cannot brought to charge beyond cause probable those to Brown each to prove forth at on may the record before trial resulted from a lack of support the charges assignment of error lacks merit AUTHENTICATION OF PHOTOGRAPHS In his fourth surveillance assignment of photos relevant to the error the defendant burglary alleged contends that in Count 4 were erroneously admitted into evidence The defendant not appear to correct on s objection the record transmitted to the admission of the photographs does However he filed and the court the record which improper foundation to and the defendant states that an objection lack of discloser Because he makes 12 sic no was in granted a motion lodged because discovery of never discovery complaint on appeal our review of this assignment of error is limited the defendant to s complaint regarding improper foundation Generally photographs light upon place or any fact or issue in the State thing depicted 9 27 96 681 So 2d 1007 be identified identifies it State as such La 1978 the defendant who Ford Explorer was A trial court has decision to discretion admit State So 2d 642 647 to Glynn 1984 present see case also State 10 La App La 10 6 95 App the 1st 661 1st Cir Leggett 363 So 2d photographs depict Brown and the white great discretion in admitting photographs and the will 29 434 not be overturned absent 7 8 Although the record was was made objection La it is silent was and record of the Without a as to overruled to App 2d Cir corrected Subject 4 v the contested reflects that the court stated marked 94 0332 p a by Hebert Gay show that the Rather the proper subject depicted by by both Hebert and pp v not into evidence is laid when of the v 4 1299 writ denied 95 1153 photographs improper foundation fails State identified identified shed photograph need a be admissible to photograph a La In the any fact describe the person to Robertson 454 So 2d 205 210 La v writ denied 458 So 2d 487 439 relevant 1011 It is well settled that 653 So 2d 1288 citing they illustrate Steward 95 1693 p 5 La App 1 st Cir by the person who took it 7 4 95 So 2d 464 434 or are having personal knowledge photograph Cir case v foundation for the admission of witness admissible if are the to show an abuse of 6 18 97 an 697 objection of the arguments made and On the contrary the record objection let the exhibit be filed specific objection made the Further any defect in the chain of custody goes to the weight of the evidence rather admissibility State v Sam 412 So 2d 1082 1086 La 1982 than to its 13 conversation regarding such that the admission of the or the court photographs s in chamber was an ruling we cannot say abuse of discretion This assignment of error lacks merit CONCLUSION Having determined the evidence insufficient defendant s convictions in Counts 2 3 5 6 7 8 9 and 10 convictions and convictions and sentences sentences and enter imposed an order of to support we reverse acquittal the those We affirm the in Counts 1 4 and 12 CONVICTIONS AND SENTENCES IN COUNTS 2 3 5 6 7 8 AND 10 REVERSED AND ORDER OF ACQUITTAL ENTERED CONVICTIONS AND SENTENCES IN COUNTS 1 4 AND 12 9 AFFIRMED 14
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