State Of Louisiana VS Brandon Day
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STATE OF LO IISIANA CQURT OF APPtAL FIRST CIRCUIT N0 2012 KA 1749 STATE OF LOUISIANA VERSUS BRANDON DAY 7udgment rendered June 7 2013 Appealed from the n 21 Judicial District Court in and for the Parish of Tangipahoa Louisiana Trial Court No 1102576 Honorable Ernest G Drake Jr Judge HON SCOT M PERRILLOUX ATTORNEYS FOR ATTORNEY DISTRICI STATE OF LOUISIANA PATRICIA PARKER AMOS ASSISTANT DISTRICT ATTORNEY AMITE LA PRENTiCE L WHITE ATTORNEY FOR LOUISIANA APPELLATE PROJECf APPELLANT DEFENDANT BATON ROUGE LA BRANDON DAY BEFORE KUHN PETTIGREW AND McDONALD J PETTIGREW The defendant Brandon Day was charged by bill of information with attempted simple burglary a violation of La R 14 and La R 14 The defendant entered S 62 S 27 a plea of not guilty After a hearing the tiaB c granted the State motion to use urt s other crimes evidence pursuant to La Code E art 404 After a trial by jury the id B defendant was found guilty as charged and subsequently sentenced to four years imprisonment at hard labor The defendant now appeals assigning error to the admission of other crimes evidence For the following reasons we affirm the conviction and sentence STATEMENT OF FACTS On June 4 2011 near 2 a Richard Poling a resident of an apartment 30 m complex located at Windrush Drive off of C Fagan Drive in Hammond called 911 as M he observed two African males jump over a wooden privacy fence and American approach several vehicles in the complex parking lot The individuals approached Poling s vehicle and after unsuccessfully attempting to gain entry through the doors and windows moved to another vehicle Poling observed as the perpetrators forced a gapped car window further down on the vehicle that belonged to Aaron Sinclair Poling roommate s who was asleep at the time As Poling observed them reaching into Sinclair vehicle he s yelled out his front door to the individuals and they jumped back over the fence Poling reported his observations in real time to the 911 dispatcher Officer Terry Sanchez and Detective George Bergeron of the Hammond Police Department were in the area and responded to the dispatch As the police neared the scene Poling indicated that the perpetrators were fleeing toward Commerce Street Poling described the perpetrators attire As Officer Sanchez and Detective Bergeron approached Commerce Street they observed two individuals who fit the description provided by Poling The individuals the defendant and Fred Dunhams were detained and Poling positively identified therre as the perpetrators Z ASSIGIVMENT OF ERROR In the sole assignment of error the defendant argues that the trial court erred in finding admissible evidence of other crimes consisting of the defendant sprior convictions of fifteen simple burglaries that took place two years before the instant offense The defendant argues that the evidence inflame the j against him and further argues that ry the jury convicted him because of his bad character The defendant specifically contends that evidence of a prior incident to which he pled no contest involving the simple burglaries of fifteen vehicles in apartment complexeS in Tangipahoa Parish prejudiced the s jury perception as to whether he was the person seen in Poling apartment complex on s the dark night in question The defendant notes that although he pled no contest to the fifteen prior offenses he was not found in possession of any of the victims property and only became a suspect after being named as an accomplice in a statement by the perpetrator who was in possession of the stolen goods The defendant further notes that there was no videotape eyewitness or physical evidence to show that he was involved in those burglaries The defendant concludes that he was unduly prejudiced as a result of the admission of the other crimes evidence and requests that his conviction for the instant offense be reversed Prior to the trial herein the State filed a motion of intent to use evidence of other crimes pursuant to La Code Evid art 4G4 and State v Prieur 277 So B 2d 126 La 1973 to show identity motive opportunity intent plan system knowledge and absence of mistake at trial Generasly evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant State v Hills 99 p 5 5 1750 La 16 00 761 So 516 520 Under Article 404 other crimes evidence is not admissible 2d 1 B to prove the character of a person in order to show that he acted in conformity therewith The evidence may however be admissible for other purposes such as proof of motive opportunity intent preparation plan knowledge identity absence of mistake or accident La Code Evid art 404 At least one of the enumerated 1 B purposes in Article 404 must be at issue have some independent relevance or be B 3 an element of the crime charged in or for the evidenee to be admissible under Article er 404 Thus to be admissible undEr Arts 404 evidenee of the defendant prior bad le s acts must meet two criteria 1 it must be re ta some iss other than the vant ue scharacter and 2 i pr vaise rn e areat an its potential to defendant s b e ti st rtE unfairly prejudice the jury See La Cc Ev de t a 03 404 A trial court ruling s on the admissibility of evidence of other crimes will not be verturned absent an abuse of discretion State v Galliano 2002 p 4 1 839 So 932 934 2849 La 10 03 2d per curiam The procedure to be used when the State intends to offer evidence of other criminal offenses was formerly controlled by Prieur Under Prieur the State was required to prove by clear and convincing evidence that the defendant committed the other crimes Prieur 277 So at 129 However 1994 La Acts 3d Ex Sess No 51 2d added La Code Evid art 1104 and amended Article 404 Article 1104 provides that B the burden of proof in pretrial Prieur hearings shall be identical to the burden of proof required by Federal Rules of Evidence Article IV Rule 404 The burden of proof required by Federal Rules of Evidence Article IV Rule 404 is satisfied upon a showing of sufficient evidence to support a findir by the jury that the defendant committed the g other crime wrong or act See Huddleston v U 485 U 681 685 108 S S S Ct 1496 1499 99 L 771 1988 The Louisiana Supreme Court fnas yet to address 2d Ed the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of La Code Evid art 1103 and the addition of Article 1104 However numerous Louisiana appellate courts including this court have held that burden of proof to now be less than clear and convincing State v Millien 2002 1006 p 11 La App 1 Cir 2 845 So 506 514 See also State v Williams 03 14 2d 2576 99 p 7 n La App 1 Cir 9 769 So 730 734 n We note that the 4 00 22 2d 4 initial requirement of establishing that defendant committed the other crimes was clearly met in this case as the defendant admitted to the police his participation in the offenses and later pled no contest to the offenses 4 Deputy Kenneth Schfeigeimeyer of the Tangepahoa Parish Sheriffs OfFce the officer who investigated the 2009 multiple vehi burgiaries testified at the pretrial fe Prieur hearing On June 5 2009 aring the early Froming hours before daylight multiple vehicles were burglarized i three ciosely situated apartment complexes located at East Yellow Water Road Lamino Lane and Village Drive Most of the vehicles were already unlocked while the windows were busted for a few Items such as money DVD players CDs media players and other electronic devices were removed from the vehicles A complainant gave a description of one of the suspects who she saw running away from her vehicle later identified as Jamarcus Watson When the police iocated Watson the defendant who was using the name Brandan Hurst at the time walked up and it was determined that he was also involved Both subjects were Mirandized and questioned They admitted their participation and implicated each other According to cer O Terry Sanchez the apartment complexes wherein the 2009 burglaries took place were within an approximate one mile distance fronn the apartment complex on Windrush Drive where the instant offense took place In finding the evidence admissible the trial court noted that the defendant was sentenced on the prior offenses on May 25 2011 that he had been incarcerated since his 2009 arrest up to that sentencing date and less than two weeks later the instant offense was committed The trial court further noted khak the prior offenses as the instant offense were committed in the middle of the night wifh one accomplice and involved unlocked vehicles or forced entry through a vehicle window The trial court further noted that the apartment complexes where the prior offenses ook place were located within a mile of the complex where the instant ofFense took piace The court found the evidence of other crimes admissible to prove motive opporkunity intent preparation and plan At the trial Deputy Schleigelmeyer testified consisteht with his Prieur hearing testimony In support of the trial court ruling we note that it appears that the s prerequisites as to the intent exception are satisfied in this case Before other crimes evidence can be admitted as proof of intent three prerequisites must be satisfied 5 1 the prior acts must be similar 2 there must be a real and genuine contested issue of intent at trial and 3 the probatiue value of khe evidence must outweigh its prejudicial effect See La Code Evid rks 403 8e 404 State v Kahey 436 So B 2d 475 488 La 1983 The Louis S Cc taas recogr thE principle that a apreme u t ized where the element of intent is rega das a sserstsai sngrediert of the crime charged it is proper to admit proof of sirni but discoo crimes to show the intent with ar cted r which the act charged was committed State v Cupit 189 La 509 179 So 837 839 1938 In State v Blank 2004 La 4 955 So 90 cert denied 552 0204 07 11 2d S U 994 128 S 494 169 L 346 2007 the State sought to introduce Ct 2d Ed evidence that the defendant killed or attempted to kill the occupants of other residences during the commission of aggravated burglaries The Louisiana Supreme Court found that the evidence met the three requirements enuneiated in Kahey The Supreme Court reasoned that the acts were similar in that they each involved home invasions where defendant entered the home to steal money was caught by the resident each of whom were somewhat elderly and then kifled or attempted to kill the resident The Supreme Court further reasoned that specifs intent was a genuine issue at trial in that it is an essential element of the crime and was cor Blank 2004 at 42 tested 0204 955 So at 125 Similarly in State v Williams 96 p 30 La 1 708 2d 1023 98 21 2d So 703 725 cert denied 525 11 838 i19 S 99 142 LEd 79 1998 726 S Ck 2d the Supreme Court found that evidence demorrstrating that the defendant shot a man during a robbery just hours before the crime chargpd was admissible in a first degree murder prosecution The Supreme Court noted thait the evidence of the earlier shooting was relevant to show that the defendant intended to fire the gun at the victim even though he claimed that the gun accidently discharged As to the first requirement of Kahey clearly in this case the prior acts were similar to the offense being tried The offenses took place in generally the same area and all in apartment complex parking lats were cornmitted overnight or during the early morning hours before sunrise were committed with the use of an accomplice and 6 involved the unauthorized entry of veh sthryugh an unlocked door or forced entry cl through a window Second in thls case specif r aa a ssue ak fir in that it is an nt t e uir r ai essential element of the crime that was tr ed In c tc convict the defendant of der r attempted simple burglary the Stat was eequir F to prove beyond a reasonable doubt that the defendant had the specific intent to enter a dwelling vehicle watercraft or other structure without authorization with the specific intent to commit a felony or any theft therein La R 14 La R 14 State v Perkins 517 So 314 S 27 A S 62 A 2d 316 La App 1 Cir 1987 writ denied S19 So 141 La 1988 While the defense 2d mainly contested the issue of identity in thfs case the State still had the burden of proving specific intent an essential element of ne crimz charged and the jury was specifically instructed in this regard prior ta deliperations As to the third element of Kahey the defer argues that he was unduly aant prejudiced by the introduction of the evidence at issue The defendant also notes that the prior burglaries took place over two years before the instant offense Nonetheless the fact that the other acts or crimes happened some kime before offense for which the the defendant is on trial is not sufficient in and of itself to require the exclusion of the evidence Remoteness in time in most cases is onfy one factor to be considered when determining whether the probativ valu of the evidence outweighs its prejudicial effect Generally a lapse in time wil go to the weight of the evidence rather than to its admissibility State v 7ackson 625 So d Z46 i49 La 1993 Furtfher in determining whether the probative value of he evide outweighs its prejudicial ce effect the underlying polic is not to prevent prejudice sfnce evidence of other crimes 1 We note that in Blank the defendant araued that the State should not have been permitted to introduce the other crimes evidence to prove the specific intent element of first degree murder because he did not present evidence or argue at triai that he lacked spec intent Beiore noting that the defendanYs ciaim c that he did not contest the issue of intent lacked a factuai basis in that case the Supreme Court cited U S v Brantley 786 F 1322 1329 7th Cir 1986 cert denied 477 U 908 106 S 3284 91 L 2d S Ct 2d Ed 572 1986 wherein the 7th Circuit Court of Appeals held that when a defendant is charged with a crime and specific intent is an essential element of that crime the government may introduce evidence of prior or subsequent acts to establish the element of intent even if the defendant has not pfaced his intent into question Blank 2004 at 43 955 So at 125 0204 2d 7 is always prejudicial but to protect against unfair prejudice when the evidence is only marginally relevant to the determiraticn of guift of the charged crime State v Humphrey 412 So 507 520 La 19 on ehearing 2d 2 We further nate that bas or the facts and circumstances herein the other d crimes evidence at issue is also relevar as tca he efendant t smotdve plan and system For these reasons the defendant sole assignment of error is without merit s Nonetheless even if we were to determine that the other crimes evidence was improperly admitted in this case that would not end our inquiry since the erroneous admission of other crimes evidence is a trial error subject to harmless error analysis The standard applied in making this determination whether the verdict rendered was s surely unattributable to the error See State v 7ohnson 94 p 18 La 1379 95 27 11 664 So 94 102 2d Based on Poling testimony there was no doubt in his mind that the defendant s was one of the perpetrators herein As he routi did around 2 to 2 in the ely 00 15 morning Poling had just let his dog out to relieve itself and was sianding on his porch when he initially spotted the perpetrators He called his dog in shut his apartment door and stood on the stoop of nis apartment when he heard mumbling and the kicking of rocks coming from Commerce Street Polirg observed the two African maies as American they initially approached but co not get over the chain fence and subsequently ld link removed a board from and jumpe over the wood privacy fence Poling went back n into his apartment and continued to observe the indiv khrough his windows als sd The view from the windows was well lit As he observed the individuals approaching the vehicles Poling was able to see their faces ana attire He noted that they were wearing jeans and one had on a loose white twhile the other had on a white muscle shirt shirt He had his cell phone on his person at the time and used it to call 911 Poling noted that his apartment windows covered the length of the parking lot and by moving from the living room window to the bedroom window he was able to maintain a view of the suspects as they approached different vehicles Poling continued to observe as Sinclair s gapped car window was forced down another four or five inches and the suspects s reached into khe car just efore Paiir yelled aut to therrs y The police were near the complex and simultaneausly commun vit Che dispatche as Poling reported his cating observations in real tirne s PolinC indicated thak the suspects fled toward Commerce Street Offi Sanchez an iue Ber a that ocatlor and spott the er iDetec er proa r hed d suspects As to the moments before the police detain the suspects Poling testifiea I d walked outside The two guys after down Commerce Street they jumped the fence they got about halfway I saw the cruisers pull in and they got the two guys When asked if he ever lost sight of the perpetrators before the police detained them and obtained the on identifications PolinG stated ust when they were running scene the behind that pine tree That when I had to go out into the grassy area of our properry to s actually get a complete view of Commerce Street He testified that he was certain that they were the two people attempting to break into vehicles in the complex parking lot Poling was essentially able to observe the perpetrators from the momen before s they gained entry into the complex parking lot and attempted to enter several vehicies until the police detained em tr He was absolutely certain of his on scene the identification and subsequent in identification of the defendant court Aaron Sinclair testified that he did not know the defendant and did nok give him authorization to enter his vehicle Considering the above it is clear that the jury rested its verdict on evidence properly introduced by the State rather than on the evidence regarding the burglaries previously committed by the defendant Based on our review of the record we find that the guilty verdict ret in fhe instar case surely was unattributable to any error in the rned t admission of the e other aimes evider Thus if the admission of the ctraneous ce evidence was erroneous the error was harmless beyond a reasonabfe doubt See La Code Crim P art 921 DECREE For the above and foregoing reasons U find no merit to the defendant e s arguments on appeal and affirm the defendank sconvickion and sentence CONVICTION AND SENTENCE AFFIRMED 9
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