State Of Louisiana VS Robert E. King, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0981 STATE OF LOUISIANA n VERSUS ROBERT E KING III On Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 464 Division C 560 Honorable Richard A Swartz Jr Judge Presiding Walter P Reed Attorneys for District Attorney State of Louisiana Covington LA and Kathryn Landry Special Appeals Counsel Baton Rouge LA Frederick Kroenke Attorney for Louisiana Appellate Project Baton Rouge LA Defendant Appellant Robert E King III Robert E King III Covington LA In Proper Person Defendant Appellant BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered December 22 2010 14u 1 O GiM Gvr PARRO J The defendant Robert E King III was charged by bill of information with aggravated assault with a firearm a violation of LSAR 14 The defendant pled S 37 4 not guilty and following a jury trial was found guilty as charged The defendant filed motions for new trial and post verdict judgment of acquittal which were denied The state filed a multiple offender bill of information At the habitual offender hearing the defendant was adjudicated a secondfelony habitual offender and sentenced to eight years of imprisonment at hard labor without benefit of probation or suspension of sentence The defendant now appeals designating one assignment of error We affirm the conviction habitual offender adjudication and sentence FACTS On the afternoon of January 3 2009 fourteenyearold A was riding in the W passenger seat of his mother Monte Carlo which was being driven by his brother on s Lincoln Avenue in Slidell A testified at trial that when they stopped at a stop sign W W A heard gunshots A looked to his left and saw the defendant who was across W the street on the sidewalk under a tree fire several shots at him and his brother with a handgun One of the bullets struck the car W A and his brother ducked and his brother sped off Later that same day Officer Christopher Culotta with the Slidell Police Department removed a bullet from the driver sside door of the Monte Carlo No physical evidence was found at the scene of the shooting Two days later A looked at a photographic lineup and identified the W defendant as the shooter A also gave a written statement which set forth that at W about 2 p he was riding with his brother when he saw a guy with dre and 00 m ds a gold in his mouth pull up his shirt pull out a gun and fire at them identify the defendant by name in his statement W A did not W A testified at trial that he knew the defendant name from just hearing about him on the streets s 1 Initially the defendant was also charged with one count of possession of a firearm by a convicted felon a violation of LSAR 14 and another count of aggravated assault with a firearm a violation of S 95 1 LSAR 14 At the trial of the matter the state elected to proceed only on the count tried S 37 4 2 ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues that the evidence was insufficient to support the conviction Specifically the defendant contends that the state failed to prove his identity as the shooter A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend XIV LSAConst art I S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 S Ct 2d Ed 1979 See also LSA C art 821 State v Ordodi 060207 La 11 P Cr B 06 29 946 So 654 660 State v Mussall 523 So 1305 130809 La 1988 2d 2d The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSAR 15 provides that in order to S 438 convict the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 01 2585 La App 1st Cir 02 21 6 822 So 141 144 2d Furthermore when the key issue is the defendant s identity as the perpetrator rather than whether the crime was committed the state is required to negate any reasonable probability of misidentification Positive identification by only one witness is sufficient to support a conviction It is the fact finder who weighs the respective credibilities of the witnesses and an appellate court will generally not secondguess those determinations State v Hughes 050992 La 11 06 29 943 So 1047 1051 2d Louisiana Revised Statute 14 provides in pertinent part 4 37 A Aggravated assault with a firearm is an assault committed by the discharge of a firearm B For the purposes of this Section firearm is defined as an instrument used in the propulsion of shot shell or bullets by the action of gunpowder exploded within it z The defendant does not dispute that a shooting occurred N An assault is defined as an attempt to commit a battery or the intentional placing of another in reasonable apprehension of receiving a battery LSAR 14 S 36 W A made an in court positive identification of the defendant as the person who shot at him and his brother from across the street and struck his mother Monte Carlo s with one of the bullets A testified that his brother was driving As they stopped at W a stop sign A saw on his left the defendant lift up his shirt pull out a gun and W begin shooting at them A testified that the defendant had a black handgun that he W heard the gunshots and that he saw fire come out of the gun as it was being shot Shortly after the shooting a bullet was removed from the driver sside door of the Monte Carlo by Officer Culotta The location of the bullet in the driver sside door was consistent with the defendant location when A saw him shooting s W W A also identified the defendant in a six person photographic lineup two days after the shooting When asked at trial if A showed any hesitancy in picking out the W defendant Detective John Cole with the Slidell Police Department testified that A did W not When A was asked on direct examination if there was any doubt in his mind W that the defendant was the person who shot at him A replied No W W A testified at trial that the defendant had dreadlocks when he shot at him but at trial the defendant had gotten his hair cut because he did not have dreadlocks The defendant theory of misidentification thus was that the state had no evidence he s ever had dreadlocks The defendant assertion is erroneous s W A testified the defendant had dreadlocks and this testimony was corroborated by Detective Cole s testimony and the six person photographic lineup introduced into evidence which clearly shows the defendant with dreadlocks W A picked in the photo lineup Detective Cole verified that the person the n two photo umber was Robert King the defendant The defendant suggests however that the person identified as the defendant in the photo lineup is not him the defendant In his booking photo the defendant does not have dreadlocks but very short hair The defendant asserts in his brief that the man in the photo lineup identified as the defendant has a facial structure entirely different from his facial structure as shown in his booking photo when he was arrested 4 Initially we note that the shooting occurred on January 3 2009 and the booking date when the photo of the defendant was taken was March 31 2009 As such almost three months elapsed from the time the defendant had dreadlocks to the time he did not Detective Cole testified that after the defendant had been identified as the shooter but prior to his being apprehended he Cale believed that word went out that the police were looking for someone with dreadlocks Detective Cole had also known people to change their appearance after the police started looking for them Thus a rational juror could have reasonably concluded the defendant had cut his hair between the time of the shooting and the time of his arrest Moreover despite the defendant assertion about entirely different facial s structures a comparison of the lineup photo with the booking photo apparently reveals that both pictures are of the defendant Aside from the longer hair in the lineup photo the features and poses are virtually identical However our assessment of the similarity between the photos notwithstanding it was the jury that heard all of the testimony and viewed all of the evidence presented to it at trial and after considering any alleged inconsistencies found the defendant guilty In the absence of internal contradiction or irreconcilable conflict with the physical evidence one witness testimony if believed by s the trier of fact is sufficient to support a factual conclusion State v Higgins 03 1980 La 4 898 So 1219 1226 cert denied 546 U 883 126 S 182 05 1 2d S Ct 163 L 187 2005 2d Ed It is clear from the finding of guilt that the jury concluded that the testimony of W A and Detective Cole was credible and reliable and was sufficient to establish the s defendant guilt The testimony of the victim alone is sufficient to prove the elements of the offense State v Qrgeron 512 So 467 469 La App 1st Cir 1987 writ 2d denied 519 So 113 La 1988 In finding the defendant guilty it is clear the jury 2d rejected the defense theory of misidentification The trier of fact is free to accept or s reject in whole or in part the testimony of any witness Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency The trier of fact determination of the weight to be given s R evidence is not subject to appellate review An appellate court will not reweigh the evidence to overturn a fact finder determination of guilt State v Taylor 972261 s La App 1st Cir 9 721 So 929 932 We are constitutionally precluded from 98 25 2d acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 99 3342 La 10117100 772 So 78 83 2d After a thorough review of the record we find that the evidence negates any reasonable probability of misidentification and supports the jury verdict s We are convinced that viewing the evidence in the light most favorable to the state a rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of aggravated assault with a firearm See State v Calloway 072306 La 1 1 So 417 09 21 3d 418 per curiam The assignment of error is without merit CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED P
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