State Of Louisiana VS David W. Belseth
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0018 STATE OF LOUISIANA VERSUS DAVID W BELSETH Judgment rendered June 11 2010 Appealed from the 22nd Judicial District Court in and for the Parish of Washington Louisiana Trial Court No 08 CR3 99838 Honorable Raymond Childress Judge HON WALTER P REED ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA LEWIS V MURRAY III ASSISTANT DISTRICT ATTORNEY FRANKLINTON LA AND KATHRYN W LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE LA MARY E ROPER ATTORNEY FOR BATON ROUGE LA DEFENDANTAPPELLANT DAVID W BELSETH BEFORE CARTER C GUIDRY AND PETTIGREW J 13 PETTIGREW I The defendant David W Belseth was charged by bill of information with one count of unauthorized entry of an inhabited dwelling a violation of La R 14 He S 62 3 pled not guilty Following a trial by jury the defendant was convicted of the responsive offense of attempted unauthorized entry of an inhabited dwelling in violation of La S 27 R 14 and 14 The trial court sentenced the defendant to three years 3 62 imprisonment at hard labor The State filed a multiple offender bill of information seeking to have the defendant adjudicated and sentenced pursuant to La R S 1 529 15 At the conclusion of the multipleoffender hearing the trial court adjudicated the defendant to be a second felony habitual offender Thereafter the trial court vacated the previously imposed sentence and resentenced the defendant to six years imprisonment at hard labor The defendant moved for reconsideration of the sentence which was denied by the trial court The defendant now appeals urging the following assignments of error 1 The trial court erred in failing to charge the jury that criminal trespass was a responsive verdict in this case 2 The trial court abused its discretion by imposing an excessive sentence Finding no merit in the assigned errors we affirm the defendant sconviction habitual offender adjudication and sentence FACTS On July 6 2008 after working and drinking together for most of the day the defendant and his friend Gerald Dahlem became involved in an altercation over a crowbar The defendant had brought the crowbar to Dahlem residence claiming that s it belonged to him Dahlem claimed he recognized the crowbar as his property The men argued and struggled over the tool outside Dahlem residence s Eventually both men withdrew from the altercation and left the area The defendant drove away in his Dodge pickup and Dahlem left in his Ford Ranger pickup Shortly thereafter the defendant returned to the area Meanwhile Laura Colley s Dahlem girlfriend who had been inside the residence heard the sound of a revving 2 s vehicle engine outside She looked out and observed the defendant svehicle stuck in the ditch Because she was aware that the defendant had been drinking and she had witnessed the altercation between the defendant and Dahlem Colley decided not to go outside The defendant then asked Colley for a light for a cigarette and when she refused the defendant became enraged and started yelling and screaming Colley opened the door and told the defendant to leave the premises He refused to comply The defendant told Colley he was coming in Colley closed the door and the defendant started beating on the doorknob Colley leaned against the door to prevent the defendant from entering Colley again told the defendant to leave and threatened to call the police According to Colley the defendant told her to go ahead and call the police and by the time they got there she would be dead The defendant still enraged started beating the trailer and breaking the windows with a baseball bat The defendant eventually moved toward the backdoor of the trailer When he opened the backdoor and entered the trailer Colley ran out of the front door Colley ran through a nearby wooded area to a neighbor home and called the s police Deputy Christopher Morgan of the Washington Parish Sheriffs Office was dispatched to the area to investigate the complaint Colley advised Deputy Morgan that the defendant her boyfriend sfriend had chased her out of her home with a baseball bat open At the residence Deputy Morgan observed that the front and back doors were The kitchen window was also broken As Deputy Morgan walked toward his vehicle to get his camera to photograph the scene Colley advised that the defendant and his stepfather had just passed by in a silver Ford pickup truck Deputy Morgan entered his vehicle and attempted to locate the defendant The silver Ford pickup was eventually located and stopped After the defendant exited the passenger side of the vehicle a baseball bat was found on the right floorboard of the vehicle The baseball bat was seized as evidence The defendant was returned to the scene where Colley identified him as the individual who chased her from the residence The defendant who was obviously highly intoxicated was placed under arrest 3 ASSIGNMENT OF ERROR 1 CRIMINAL TRESPASS JURY CHARGE In his first assignment of error the defendant contends the trial court erred when it failed to include the misdemeanor offense of criminal trespass La R 14 S 63 as a responsive verdict Specifically he asserts that since the jury chose the lesser included verdict of attempted unauthorized entry of an inhabited dwelling it would likely have found him guilty of the misdemeanor offense of criminal trespass had it been given the option Thus he argues the trial court failure to include the misdemeanor s criminal trespass option put him in an unfair position and therefore constitutes reversible error Louisiana Code of Criminal Procedure article 803 requires a trial court to advise the jury of the law applicable to all offenses charged as well as any other offenses for which the accused could be found guilty under La Code Crim P arts 814 or 815 Because Article 814 does not provide any statutory responsive verdicts for unauthorized entry of an inhabited dwelling the provisions of Article 815 apply Article 815 states that in those cases not provided for by Article 814 the responsive verdicts are guilty not guilty or g of a lesser and included grade of the offense even though the uilty offense charged is a felony and the lesser offense is a misdemeanor In this case the defendant was charged with unauthorized entry of an inhabited dwelling The trial court instructions to the jury included responsive verdicts for s unauthorized entry of an inhabited dwelling attempted unauthorized entry of an inhabited dwelling and not guilty As the defendant acknowledges in his brief the record shows no objection to the instructions given or any request that the responsive verdict of criminal trespass be included in the jury instructions s Louisiana Code of Criminal Procedure article 801 provides in pertinent part that a party may not C assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error Louisiana Code of Criminal Procedure article 0 A 841 provides in pertinent part that a irregularity or error cannot be availed of n after verdict unless it was objected to at the time of occurrence The contemporaneous objection rule is specifically designed to promote judicial efficiency by preventing a defendant from gambling for a favorable verdict and then upon conviction resorting to appeal on errors that either could have been avoided or corrected at the time or should have put an immediate halt to the proceedings State v Taylor 93 2201 p 7 La 2669 So 364 368 cert denied 519 U 860 96 28 2d S 117 S 162 136 L 106 1996 Ct 2d Ed In his brief the defendant cites State v Ruffins 41 La App 2 Cir 9 940 So 45 writ denied 20062779 La 033 06 20 2d 07 22 6 959 So 494 and State v Williamson 389 So 1328 La 1980 and 2d 2d notes that jurisprudential exceptions to Article 801 objection requirement exist in s situations where the error causes such a fundamental defect in the proceedings that the defendant is deprived of a fair trial The defendant argues that such an exception should be made in this case We disagree The jurisprudence has allowed exceptions in cases where there have been fundamentally erroneous misstatements of the essential elements of the charged offense In such cases the Louisiana Supreme Court has adopted the view that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the fact finding process that due process of law requires reversal even in the absence of compliance with legislative procedural mandates Such an error is of such importance and significance as to violate fundamental requirements of due process Williamson 389 So at 1331 2d In his brief the defendant points to State v Simmons 2001 0293 pp 6 7 La 02 14 5 817 So 16 21 wherein the Louisiana Supreme Court held that criminal 2d trespass is a lesser included offense and a responsive verdict to a charge of unauthorized entry of an inhabited dwelling He argues that Simmons requires that the trial court include criminal trespass as a responsive verdict when a person is tried for unauthorized entry into an inhabited dwelling However in Simmons the Louisiana Supreme Court on review of the trial court refusal to include the requested s 5 instruction specifically noted that the defendant specifically asked the trial court to charge the jury on the law applicable to the offense of criminal trespass Simmons 20010293 at 6 817 So at 20 See also State v Hernandez 2002 340 p 3 La 2d App 5 Cir 7 824 So 529 530 wherein the reviewing court refers to 02 30 2d Simmons and notes i this case defendant likewise specifically requested the trial n court to charge the jury on the law applicable to the offense of criminal trespass Herein the defendant did not make such a request Therefore this case is distinguishable from Hernandez and Simmons We do not find that an exception to the objection requirement is warranted in this case As previously noted exceptions are allowed in cases involving misstatements or errors involving the very definition of the crime of which the defendant was in fact convicted The jurisprudence has not extended the application of the exception to include error relating to the elements of a responsive offense or the failure to include a responsive offense not specifically requested See State v Johnson 98 1407 pp 10 11 La App 1 Cir 4 734 So 800 806 807 writ denied 99 1386 La 99 1 2d 99 1 10 748 So 439 See also State v Dossman 2006449 pp 9 16 La App 3 2d Cir 9 940 So 876 882886 writ denied 20062683 La 6 957 So 06 27 2d 07 1 2d 174 Accordingly the defendant has waived appellate review of this alleged error by his failure to enter a contemporaneous objection See State v Sisk 444 So 315 2d 316 La App 1st Cir 1983 writ denied 446 So 1215 La 1984 2d ASSIGNMENT OF ERROR 2 EXCESSIVE SENTENCE In his second assignment of error the defendant contends the trial court erred in imposing an excessive sentence Specifically he argues that the maximum sentence was not warranted in this case because he is an alcoholic and was under the influence of alcohol when the offense was committed Noting that alcoholism is a disease that requires treatment not punishment the defendant argues that imposition of the maximum sentence in this case was a needless imposition of pain and suffering 131 Article I Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant sconstitutional right against excessive punishment and is subject to appellate review State v Sepulvado 367 So 762 767 La 1979 State v Lanieu 98 2d 1260 p 12 La App 1 Cir 4 734 So 89 97 writ denied 991259 La 99 1 2d 99 8 10 750 So 962 2d A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering State v Dorthey 623 So 1276 1280 La 2d 1993 A sentence is grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense of justice State v Hogan 480 So 288 291 La 1985 A trial court is given wide discretion in the 2d imposition of sentences within statutory limits and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion State v Lobato 603 So 739 751 La 1992 2d As a general rule maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender State v James 2002 2079 p 17 La App 1 Cir 5 849 So 574 586 03 9 2d The maximum sentence permitted under a statute may also be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality See State v Hilton 991239 p 16 La App 1 Cir 3 764 So 1027 1037 writ 00 31 2d denied 2000 0958 La 3 786 So 113 01 9 2d As a second felony habitual offender the defendant faced a possible penalty of imprisonment at hard labor for up to six years for his conviction of attempted unauthorized entry into an inhabited dwelling La R 14 S 27 3 D 6 3 62 14 La S 529 R 15 As he notes he received the maximum sentence a A 1 Prior to imposing sentence the trial court reviewed the facts of the case and a presentence investigation report In support of the original sentence the court noted The Court notes that this case involved a very fearsome and vicious attack upon the trailer in which the victim was residing 7 It put her I think certainly in fear of great bodily harm as well as possibly even death and caused her to flee from her dwelling where she should have had the right to her own privacy as well as the right to assume that she could have a peaceful existence there She left there under duress and ran to a neighbor in order to seek safe harbor really The defendant used a baseball bat I think it was in a very violent and menacing manner so as to as I said previously put this particular victim in tremendous fear for her safety The defendant contention that the trial court failed to give adequate weight to s the mitigating circumstances lacks merit The record in this case clearly indicates that the trial court was aware of the relevant mitigating factors set forth by the defense in its brief before this court Thus it is clear that the trial court considered the mitigating evidence Because the evidence presented at the trial was clearly sufficient to support a conviction of the charged offense the trial court could have easily concluded that the defendant had already received mitigating consideration for his intoxication Furthermore there is no requirement that any specific mitigating factors be given any particular weight by the sentencing court State v Dunn 30 p 2 La App 2 Cir 6 715 So 641 767 98 24 2d 643 Considering the reasons stated by the trial court and based on the entire record before us we find no abuse of discretion by the trial court in sentencing the defendant to the maximum term of imprisonment in this case The maximum sentence is not so grossly disproportionate to the severity of the offense nor so disproportionate as to shock our sense of justice Therefore we conclude that the maximum sentence imposed in this case is not unconstitutionally excessive This assignment of error lacks merit For the foregoing reasons the defendant conviction habitual offender s adjudication and sentence are affirmed CONVICTION HABITUAL OFFENDER AFFIRMED 8 ADJUDICATION AND SENTENCE
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