State Of Louisiana VS Brandon Pace
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 KA 0500 STATE OF LOUISIANA VERSUS BRANDON PACE i 4 I G On Appeal from the 23rd 7udicial District Court Parish of Ascension Louisiana G Docket No 28 Division B 321 Honorable Thomas J Kliebert Jr Judge Presiding Ricky L Babin District Attorney Attorneys for Appellee State of Louisiana Donald D Candell Assistant District Attorney Gonzales LA Bertha M Hillman Attorney for Louisiana Appellant Defendant Appellate Project Thibodauz lA Brandon Pace BEFORE PARRO GUIDRY AND DRAKE Judgmentrendered NOV 0 4 2013 PARRO 7 The defendant Brandon Pace was charged by bill of information with simple burglary a violation of LSA 14 The defendant entered a plea of S R 62 not guilty After a trial by jury the defendant was found guilty as charged The state filed a habitual offender bill of information and the defendant was adjudicated a felony fourth offender after a hearing The defendant was subsequently sentenced to twenty years of imprisonment at hard labor without the benefit of probation parole or suspension of sentence The defendant now appeals assigning error as to the sufficiency of the evidence For the following reasons we affirm the conviction habitual offender adjudication and sentence STATEMENT OF FACTS On March 17 2011 while at work at about 9 a Shane Toncrey 30 m received an automated e informing him that his video surveillance system mail detected motion at his home in Prairieville Toncrey home surveillance system s includes one camera facing the street and one under his carport The cameras automatically record for two to three minutes when they detect motion and an e mail alert is generated and sent to his phone The e alert included a mail photograph of a blue and gray Chevrolet truck detected in Toncrey carport s Toncrey read the e viewed the truck that he did not recognize and arrived mail at his home located a short distance from his office within five minutes of 1 The bill of information shows that a codefendant Frankie New was also charged with simple burglary However New is not a party to this appeal and the defendant was not tried with New Moreover the bill shows that the defendant was also charged on count two with possession of cocaine and on count three with possession of drug paraphernalia The defendant went to trial only on the simple burglary charge on count one Z The defendanYs predicate guilty pleas consist of the following a 2002 conviction for illegai possession of stolen things a 2002 conviction for simple robbery and a 2003 conviction for simple burglary of an inhabited dwelling 3 As noted at the time of the sentencing and in the written reasons for sentencing the trial court determined that the instant case warranted a downward departure from the life sentence mandated by LSA 15 The trial court articulated a basis for departing S 1 R 529 b 4 A downward from the mandatory sentence under the Habitual Offender Law as required by State v Johnson 97 La 3 709 So 67Z 676 and the state has not appealed the 1906 98 4 2d 77 sentence This court notes that the sentencing is not inherently prejudicial but in the defendant s favor State v Price OS La App lst Cir 12 952 So 112 123 en banc 2514 06 28 2d 25 writ denied 07 La 2976 So 1277 0130 08 22 Zd 2 receiving the e When he arrived home Toncrey noticed that his shed doors mail were open and that his weed and edger were missing from the shed eater Toncrey went to his office in his house to review the surveillance footage and contacted the police The surveillance cameras captured the trucic as it was driven on the road in front of Toncrey home and as it turned around in a driveway s across the street and passed Toncrey home again The truck was also captured s as it entered Toncrey carport just before a white male is captured on foot s walking back and forth in front of the home Finally the truck was captured as it was driven off nine minutes later When the police arrived Toncrey gave them the surveillance footage At approximately 9 a Deputy Kelly Brown of the Ascension Parish 40 m s Sheriff Office APSO responded to the scene observed the surveillance footage and issued a BOLO with a description of the vehicle and the individual caught on surveillance Between 12 and 12 in the afternoon APSO Deputy Steven 00 30 s Decoteau spotted the vehicle described in the BOLO on Louisiana Highway 74 notified dispatch and observed the suspected truck entering the driveway of a blue house The driver a white maie exited the truck removed equipment from the back of the truck and approached a black male later identified as Durez Wilson who was at the residence As he waited for marked units to arrive Deputy Decoteau observed the two individuals as they briefly conversed and observed the driver as he got back in the vehicle drove behind the house and shortly thereafter drove off Deputy Decoteau followed the truck as it travelled west on Highway 74 toward St Gabriel reported the pursuit and license plate number and was advised to proceed with the stop After the truck was pulled over the driver the defendant provided his identification Sergeant Steven Thrash responded to the scene of the stop on Highway 74 obtained the defendanYs driver license and advised the defendant of his s Miranda rights and the reason for the 3 stop Sergeant Thrash detained the defendant until Deputy Brown arrived When Deputy Brown arrived he immediately identified the truck and the defendant as the individual in the surveillance footage and also advised the defendant of his Miranda rights Based on the defendant statements the defendant brother Frankie New was s s in law also arrested The police determined that New was the owner of the truck but he indicated that he had no knowledge of the stolen lawn equipment ASSIGNMENT OF ERROR In the sole assignment of error the defendant argues that there is no direct evidence that the weed and edger recovered in this case belonged to eater Toncrey The defendant notes that the surveillance footage does not include the actual offense and only shows a man approaching the front door and a truck in the driveway The defendant further notes that the truck shown in the video belonged to his brother Frankie New who refused to cooperate with the law in police and that there was no fingerprint evidence from the shed doors In raising his hypotheses of innocence the defendant contends he could have been knocking on Toncrey door for any number of legal reasons that the recovered s lawn equipment belonged to him and that he borrowed his brother truck s law in to sell and deliver his equipment to Durez Wilson The defendant concludes that the evidence is insufficient to support the conviction A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend S Const XIV LSA art I 2 The standard for appellate review of the sufficiency of evidence is whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt 7ackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 S Ct 2d Ed 1979 see also LSA art 821 State v Mussall 523 So 1305 P Cr C B 2d 09 1308 La 1988 The Jackson standard of review incorporated in LSA P Cr C art 821 is an objective standard for testing the overall evidence both direct B 4 and circumstantial for reasonable doubt When circumstantial evidence is used to prove the commission of an offense LSA 15 requires that assuming S R 438 every fact to be proved that the evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence See State v Wright 0601 98 La App lst Cir 2 730 So 485 486 writs denied 99 99 19 2d 0802 La 10 748 So 1157 and 00 La 11 773 So 732 99 29 2d 0895 00 17 2d This is not a separate test to be applied when circumstantial evidence forms the basis of a conviction all evidence both direct and circumstantial must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt State v Ortiz 96 La 10 701 So 922 930 1609 97 21 2d cert denied 524 U 943 118 S 2352 141 L 722 1998 S Ct 2d Ed Simple burglary is in pertinent part defined as the unauthorized entering of any dwelling or other structure with the intent to commit a theft therein LSA S 62 R 14 When the key issue is the defendant identity as the perpetrator A s rather than whether the crime was committed the state is required to negate any reasonable probability of misidentification State v Holts 525 So 1241 1244 2d La App lst Cir 1988 Positive identification by only one witness may be sufficient to support the defendant conviction State v Andrews 94 La s 0842 App lst Cir 5655 So 448 453 95 2d During his trial testimony Toncrey noted that his carport is located behind his home that no one was home at the time of the incident and that no one had permission to drive to the back of his driveway Toncrey shed is located at the s end of his driveway and as he approached his home after receiving the e mail alert he immediately noticed that the shed doors were wide open even though they were closed when he left home that morning He described his shed as a s door Lowe double building with four walls and a roof Upon entering the shed he noted the missing items His shed was not in view of his surveillance cameras 5 Sergeant Thrash testified that after the defendant was advised of his Miranda rights the defendant initially told the sergeant that he only had his svehicle for a few minutes to run errands and stated that he did law in brother not know anything about any stolen items Sergeant Thrash had observed the still photographs captured by Toncrey surveillance system and noted that the s defendant was obviously the subject in the photographs The defendant told Deputy Brown that he was at home with his wife at 9 a but when 30 m questioned further the defendant stated that he and his brother Frankie law in New went to a subdivision where New stole a weed and an edger from a eater shed After the defendant was arrested Deputy Brown went to the blue house where Deputy Decoteau observed the defendant and the black male just prior to the stop Upon arriving at the house Deputy Brown identified the black male as Durez Wilson and recovered two weed one being of an Echo brand name eaters and an edger Toncrey noted that Echo was the brand name of his weed eater and subsequently testified that his belongings were recovered by the police noting that they were the same make and model Toncrey specifically testified that he did not know the defendant or his brother Frankie New or give law in them permission to enter his shed When Lieutenant Curtis Bush of APSO arrived at the scene of the stop the defendant stated that h sold the equipment for crack cocaine and that he smoked the crack while he was driving prior to being stopped The defendant also showed the lieutenant the tool socket which was located between the seats in the truck that he had used to smoke the crack Lieutenant Bush recovered the tool socket and turned it over to Deputy Brown Deputy Brown identified the defendant in court as the subject on the surveillance footage The defendant did not testify or present any defense witnesses The verdict rendered indicates the jury accepted the testimony offered against the defendant and rejected any hypothesis of innocence As the trier of 6 fact the jury was free to accept or reject in whole or in part the testimony of any witness State v Johnson 99 La App lst Cir 11 745 So 217 0385 99 5 2d 223 writ denied 00 La 11 774 So 971 On appeal this court 0829 00 13 2d will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder determination of guilt State v Glynn 94 La App lst Cir s 0332 95 7 4 653 So 1288 1310 writ denied 95 La 10 661 So 2d 1153 95 6 2d 464 We cannot say that the jury determination was irrational under the facts s and circumstances presented 2d 06 29 11 946 So 654 to them 662 See State v Ordodi 06 La 0207 An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 2306 07 La 1 1 So 417 418 per curiam 09 21 3d The surveillance evidence clearly depicted an individual easily identified as the defendank placing him at the scene at a time that he initially indicated he was home Though the defendant ultimately stated that his brother stole the law in equipment in question the defendanit was the only person captured by surveillance Shortly thereafter just before being stopped in the vehicle in question the defendant was observed selling the items identified by the owner as his items The defendant confessed to selling the items for crack cocaine After a thorough review of the record we are convinced that a rational trier of fact viewing the evidence presented in this case in the light most favorable to the state could find that the evidence proved beyond a reasonable doubt and to the exclusion of any reasonable hypothesis of innocence all of the elements of sfmple burgiary and the defendant identity as the perpetrator of that ofFense The sole s assignment of error is without merit CONVICTION HABITUAL OFFENDER SENTENCE AFFIRMED 7 ADJUDICATION AND
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