As Corrected August 5, 2015.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
ON APPEAL fro THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 12-270, DIVISION " J" . HONORABLE DONALD M. FENDLASON, JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ANNE M. WALLIS, MICHAEL D. SMITH, JR., ANGEL G. VARNADO, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR APPELLEE, THE STATE OF LOUISIANA.
MARGARET S. SOLLARS, Louisiana Appellate Project, Thibodaux, Louisiana, COUNSEL FOR APPELLANT, VINCENT MARK CASTILLO.
VINCENT M. CASTILLO, Rayburn Correctional Center, Angie, Louisiana, APPELLANT IN PROPER PERSON.
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson.
SUSAN M. CHEHARDY, J.
[13-552 La.App. 5 Cir. 2] On appeal, defendant challenges his conviction for simple burglary, multiple offender adjudication, and enhanced sentence. For the reasons that follow, we affirm defendant's conviction and enhanced sentence but remand for correction of the commitment and setting of a restitution schedule.
On January 24, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Vincent M. Castillo, with simple burglary, in violation of La. R.S. 14:62 (count one) and unauthorized use of a movable in excess of $1,000.00, in violation of La. R.S. 14:68 (count two). On January 30, 2012, defendant was arraigned and pled not guilty.
On January 22, 2013, the counts were severed for trial. That day, defendant's trial on the charge of simple burglary commenced. After three days of testimony and evidence, the six-person jury unanimously
found defendant guilty as charged. On March 1, 2013, the trial judge sentenced defendant to ten years imprisonment with the Department of Corrections.
Meanwhile, the State filed a multiple offender bill of information alleging that defendant was a second felony offender, which defendant denied. On March 25, 2013, [13-552 La.App. 5 Cir. 3] the trial judge heard the allegations of the multiple bill then found that the State had proven that defendant was a second felony offender. Thereafter, the trial judge vacated defendant's original sentence for simple burglary and imposed an enhanced sentence of twenty years imprisonment at hard labor without benefit of probation or suspension of sentence.
On March 26, 2013, the State filed a motion to reconsider sentence seeking restitution, which the trial judge granted. On June 28, 2013, after a hearing, the trial judge ordered defendant to pay $5,000.00 in restitution to the burglary victim. Subsequently, defendant filed both pro se and counseled motions for appeal, which the trial judge granted.
At trial, Lea Fink testified that she met defendant in 2007 when she began working for him as a process server. In 2008, the couple, who were never married, had a son; their relationship, however, was tumultuous.
In 2009, Fink purchased a house at 509 Airline Park Boulevard in Jefferson Parish. Fink stated that she was still staying most nights at her mother's house so, in July, August, and September of 2009, defendant, who was doing renovation work at the property, slept at 509 Airline Park without her permission. After a particular incident of simple battery on September 10, 2009, Fink obtained a protective order against defendant. On that protective order dated September 11, 2009, Fink's address was listed [13-552 La.App. 5 Cir. 4] as 509 Airline Park, and defendant's address was listed as " temporary, unknown." That order expired on December 11, 2009.
After September of 2009, Fink only saw defendant on special occasions to allow him to visit their son, and, during those infrequent events, someone from her family was present. Fink testified that she did not give defendant permission to be at her house at any time in 2010 or 2011.
On October 26, 2011, Fink obtained a " permanent"  protective order against defendant.
In that order, the trial judge ordered defendant not to follow, stalk, harass, or threaten Fink.
However, on November 17, 2011, Fink, who was staying at her mother's house with her children, learned that defendant was at 509 Airline Park so she contacted the police. When she tried to unlock her front door, her key did not fit the lock. Fink testified that she did not give permission for anyone to change the lock. Soon thereafter, defendant arrived at 509 Airline Park and presented a protective order that he had fraudulently obtained, listing his address as 509 Airline Park. The deputies informed Fink that, if she did not leave the property, she would be arrested for violating a protective order.
On or about December 2, 2011, Fink saw yard signs advertising a garage sale scheduled to take place at 509 Airline Park Boulevard on December 3 and 4, 2011. Around that same time, Fink also observed advertisements of her property for sale on " Craigslist," including her son's bed, a sand box, a wagon, and a mattress for her [13-552 La.App. 5 Cir. 5] children. Fink testified that she did not authorize defendant to sell her property on Craigslist or to hold a garage sale at her house.
On Monday, December 5, 2011, Fink appeared at the hearing on the protective order that defendant fraudulently obtained against her. At that hearing, defendant's protective order was dismissed. Immediately thereafter, Fink went to her house and waited for deputies to arrive to escort her into the house. While she was waiting, defendant arrived at the house, unlocked the door, and went inside. The deputies who arrived thereafter misinformed her regarding defendant's right to remain at the house so she left her without confronting defendant.
On December 9, 2011, Fink finally went to the Fourth District Patrol Division and gave her statement to Sergeant Al West of the Jefferson Parish Sheriff's Office (" JPSO" ). Later that day, Sergeant West accompanied Fink to 509 Airline Park. Fink tried to open her front door with her key to no avail. Eventually, she found an open window in the kitchen and they gained entry into the house.
After entering the house, Sergeant West found items that belonged to defendant, including a Jefferson Parish Correctional Center Handbook and business cards. Sergeant West also found the purchase agreement for 509 Airline Park, which listed Fink as the sole owner of the property.
Sergeant West testified that Fink told him that some of her personal property was missing from her house. Fink stated that, without her permission, defendant had advertised her and her children's belongings for sale on Craigslist and held a garage sale on December 3 and 4, 2011.
Sergeant West subsequently arrested defendant for unauthorized entry of 509 Airline Park. Sergeant West advised defendant of his rights, which defendant indicated he understood.
[13-552 La.App. 5 Cir. 6] Debra Broussard, who was Fink's neighbor, testified that she went to the garage sale at Fink's home in 2011.
Broussard testified that, during the garage sale, Fink's house was a " mess" and that " the whole house" was for sale. At the garage sale, Broussard saw defendant selling things and receiving money.
After the State rested, the defense called Steven Lauridsen, who testified that he had known defendant for more than three years and had worked for defendant. Lauridsen testified that he and defendant were no longer friends because defendant accused him of stealing.
Lauridsen further testified that, in 2009, he lived and did remodeling work at 509 Airline Park Boulevard for approximately three months. When he lived there, no one other than defendant lived at 509 Airline Park. Lauridsen testified that, during the time that he lived there, Fink slept at 509 Airline Park Boulevard occasionally and defendant stayed there four or five nights a week. Lauridsen believed that in 2009 defendant was dating Fink.
Lauridsen recalled that defendant had storage units and that, in 2009, he assisted defendant in bringing approximately six truckloads of his property from those storage units to the house at 509 Airline Park. Lauridsen testified that some of the items that Fink claimed were her property were similar to items that he helped defendant bring out of storage, but he could not swear that they were the same items. Lauridsen did not recall bringing anything very large from the storage unit.
The defense also called Beverly Cottingham, who testified that she had known defendant for about seven years. Cottingham believed that the last time she saw defendant was when she helped him move items from his storage unit. When questioned, she was unsure of the date but believed that they brought the items to 509 Airline Park. Cottingham testified that she did not help load or unload the items brought from [13-552 La.App. 5 Cir. 7] defendant's storage units but remembered that it took defendant approximately fifteen minutes to load the truck and fifteen minutes to unload it.
After hearing the testimony and evidence, the six-person jury unanimously found defendant guilty as charged. On appeal, defendant, both pro se and through counsel, challenges his conviction, multiple offender adjudication, and enhanced sentence, including the restitution.
LAW AND ARGUMENT
On appeal, defendant raises 23 assignments of error, including five counseled and 18 pro se assignments. In his five counseled assignments, defendant argues: first, the trial judge erred in failing to grant a mistrial when the prosecutor mentioned " other crimes" evidence that had specifically been excluded after a Prieur hearing; second, the trial judge erred in allowing two jurors to remain in the venire after the defense challenged them for cause because they could not be fair and impartial; third, the trial court erred in dismissing a third juror from the venire even though he was accepted by both the State and the defense; fourth, the trial judge erred in failing to grant defendant's motion to quash the multiple bill; and, fifth, the trial judge erred in imposing an unconstitutional sentence.
In his next 18 assignments of error, which are raised pro se, defendant alleges: sixth, eleventh, and twentieth, the evidence was insufficient to support his simple burglary conviction because the defense witnesses refuted the alleged victim's testimony and the trial judge erred in denying his motion for post-verdict judgment of acquittal; seventh and twenty-second, defendant seeks appointment of appellate counsel, a copy of the appellate record, and an extension of time within which to file an appellate brief; eighth and fifteenth, defendant
alleges that his trial counsel was ineffective for failing to object to the prosecutor's references to domestic violence and for taking three years to obtain certain evidence which proved that the victim committed perjury; ninth, [13-552 La.App. 5 Cir. 8] defendant alleges that the trial court erred by denying his motion for a continuance to obtain evidence of the victim's perjury; tenth, the trial court erred in denying defendant's motion to obtain certain Craigslist account information; twelfth, the trial court erred in awarding $5,000.00 in restitution; thirteenth, the trial court erred by denying defendant's request to testify at a future restitution hearing after his conviction is final; fourteenth, the trial court erred in denying defendant's motion to continue questioning the victim as to the restitution sought; sixteenth, the trial court erred in finding that the State proved that defendant was a second felony offender because the State failed to prove that he had been previously convicted of attempted extortion; seventeenth, defendant argues that he was denied effective assistance of appellate counsel; eighteenth, the trial judge erred in considering the victim impact statement at the sentencing hearing; nineteenth, the multiple bill and restitution hearings were " untimely" because they occurred after defendant's pro se motion for appeal was granted; twenty-first, the trial court erred in denying defendant's motion for new trial; and finally, twenty-third, defendant argues that the trial court imposed an excessive sentence.
Sufficiency of the Evidence
When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La. 1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Alternatively, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must consider the assignments of trial error to [13-552 La.App. 5 Cir. 9] determine whether the accused is entitled to a new trial. Id. Therefore, the sufficiency of the evidence is addressed first.
The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal under La. C.Cr.P. art. 821. State v. Bazley, 09-358, p. 18 (La.App. 5 Cir. 1/11/11), 60 So.3d 7, 17, writ denied, 11-0282 (La. 6/17/11), 63 So.3d 1039. Here, defendant filed a motion for post-verdict judgment of acquittal challenging the sufficiency of the evidence. Therefore, this error is properly before this Court on appeal.
By these assignments, defendant argues that the evidence was insufficient to support his simple burglary conviction because he had authorization, as evidenced by the protective order, to enter the residence at 509 Airline Park Boulevard, which had been his residence since June of 2009. Defendant further contends that the State failed to show that he entered the residence with the specific intent to commit a theft or felony therein.Finally, defendant contends that the jury erred in its credibility determination.
In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or
circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).
In cases involving circumstantial evidence, the trial court must instruct the jury that, " assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of [13-552 La.App. 5 Cir. 10] innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.
In the instant case, defendant was convicted of simple burglary, which is defined in pertinent part as " the unauthorized entering of any ... dwelling ... with the intent to commit a felony or any theft therein." La. R.S. 14:62. Specific intent is required for a conviction for simple burglary, and it may be inferred from the circumstances and actions of the accused. State v. Naquin, 10-474 (Lfa.App. 5 Cir. 2/15/11), 61 So.3d 67, 71. Specific criminal intent is defined as " 'that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.' " Id. Therefore, to convict the defendant, the State was required to prove beyond a reasonable doubt that defendant entered the dwelling without authorization and had the specific intent to commit a felony or theft therein. Id. at 72.
Here, the State presented evidence that defendant entered Fink's home without authorization. Fink, the sole owner of the dwelling, testified that defendant did not have her permission to enter her house at 509 Airline Park Boulevard on any date in 2010 or 2011. Further, contrary to defendant's assertion that he was authorized through his invalid protective order, the State presented evidence that the victim had obtained a valid protective order on October 26, 2011 forbidding defendant from entering her property.
The State also presented evidence that defendant entered Fink's home with the intent to commit a theft therein. La. R.S. 14:67(A) defines theft as " the misappropriation ... of anything of value which belongs to another, either without the consent of the other ..., or by means of fraudulent conduct.... An intent to deprive the other permanently of [13-552 La.App. 5 Cir. 11] whatever may be the subject of the misappropriation or taking is essential. " The evidence showed that defendant fraudulently obtained a protective order against Fink using Fink's own address then changed the locks to prevent her from entering the house. Further, without her consent, defendant held a garage sale at Fink's house and sold her property with the intent to permanently deprive Fink and her children of their property.
The jury was presented with all of the evidence and found Fink's testimony to be more credible than that of the defense witnesses. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or
in part, the testimony of any witness; the credibility of the witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.
Considering the entire record and viewing the evidence in the light most favorable to the State, we find that the State presented sufficient evidence to convince a rational trier of fact beyond a reasonable doubt that defendant was guilty of entering Fink's dwelling without authorization with the specific intent to commit a theft therein. This argument lacks merit.
We now turn to the remainder of defendant's briefed assignments of error, which we will address, for purposes of clarity, not in the order in which they were listed in defendant's briefs but grouped by the issues raised, including trial errors, sentencing ...