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State v. Dibartolo

Court of Appeal of Louisiana, Fifth Circuit

February 11, 2015

STATE OF LOUISIANA
v.
ROLAND DIBARTOLO

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-2977, DIVISION " J" . HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, TERRY M. BOUDREAUX, GAIL D. SCHLOSSER, RACHELL AFRICK, JAMES MYERS, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

DOUGLAS L. HARVILLE, ATTORNEY AT LAW, Louisiana Appellate Project, Shreveport, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Marc E. Johnson, Robert M. Murphy and Stephen J. Windhorst.

OPINION

STEPHEN J. WINDHORST, J.

Page 755

[14-691 La.App. 5 Cir. 2] Defendant, Roland, Dibartolo, was charged with simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2. After a competency hearing, he was found competent to stand trial. Defendant proceeded to trial by jury and the jury found him guilty as charged. Defendant pled guilty to a habitual offender bill, and he was sentenced as a second felony offender to twelve years at hard labor without benefit of probation or suspension of sentence. Defendant appeals, alleging that the evidence presented was insufficient to prove him guilty beyond reasonable doubt. We affirm defendant's conviction and sentence.

Saleh Omar had resided at 1921 Cedarwood Avenue with his wife and two children since 2007. He was working the evening of May 26, 2013, and around 2:00 A.M., he left work and went to his father's house. While at his father's house, Mr. Omar's wife called and queried if he was outside of their home because she heard someone trying to open the door. Mr. Omar told his wife to call the police, and she placed him on hold while she dialed 9-1-1. Mr. Omar drove to his home, and when he arrived approximately fifteen minutes later, the police were outside " with the guy, like handcuffed and everything." Mr. Omar had never met that individual before and he did not have permission to be in Mr. Omar's house.

[14-691 La.App. 5 Cir. 3] Sara Omar was home with her two daughters, who at the time of the incident were aged ten and two, on the night of May 26, 2013. Mrs. Omar said there were no cars in the driveway when her husband left for work that evening. When it was

Page 756

time for bed, the eldest daughter went to her room and the youngest daughter retired with Mrs. Omar in the master bedroom. Mrs. Omar stayed awake, as she was waiting for her sister in Egypt to call her. Around 1:30 A.M., she heard " something in the window" in the toy room. Earlier that day, Mrs. Omar had locked the toy room from the inside, and therefore, in order to open the door from the outside, she would have to use something like " a hairpin." The window in the toy room was locked, and wood was placed against it.

Mrs. Omar testified that when she heard the window " being tried to [be] opened," she called her husband to inquire if it was he at the window. He informed her that he was not, and she dialed 9-1-1 because it was " a thief." Mrs. Omar then grabbed her two children and locked herself and her daughters in the master bathroom, which was inside of the master bedroom. While there, she heard " something like they opened the door, like the doorknob." She was unsure which door, but she could tell it was a door on the inside of her house and not the front door. Mrs. Omar stated that she never heard anyone walking in the house and that there was nothing out of place or missing. She also did not hear anyone yelling for " Mike," " Cathy," " mom," or anyone else, and the house was completely quiet. Ms. Omar testified that she did not know the defendant and she had not given him permission to enter her home.

Deputy Dwain Rullman with the Jefferson Parish Sheriff's Office was dispatched to a high priority call at 1921 Cedarwood Avenue and was the first deputy on the scene. He parked his car, approached the house on foot, and first stopped at a fence and peered through, where he witnessed defendant " exiting out [14-691 La.App. 5 Cir. 4] of the house, actually the window that leads into the house." When Deputy Rullman observed defendant exiting the window, he saw " his feet, his legs, his upper torso and then his head" in that order. Deputy Rullman walked around to the other side of the residence with his gun drawn to meet defendant, defendant approached him, and the Deputy ordered him onto the ground. Additional deputies arrived and assisted defendant to the ground and handcuffed him. Along with another deputy, Deputy Rullman entered the residence, following defendant's route through the window, to investigate the residence. The door of that room (the toy room) was not locked.

Once defendant was handcuffed on the ground, Deputy Rullman spoke with defendant who provided a litany of reasons why he was in the area, first declaring that his mother lived at that residence, and then stating that his mother lived in the area. Defendant then asserted that he had a friend that lived in the area, and he had met " Mike and Cathy" earlier that day and he was looking for them. Deputy Rullman testified that defendant's apartment on Ruby Street is " within the area" and is a " good little walking distance" from the Omars' residence. Defendant told the Deputy that the window had been open, and he just leaned in and called out the names " Mike" and " Cathy." When Deputy Rullman had approached the house, he did not hear anyone yelling out those names.

Defendant took the stand and testified to his version of events. He testified that on the night in question, he was walking from his apartment, which was " like a block away" and he was headed to " Brother's Store" which was on the same street the victims lived on. He had taken Seroquel for his schizophrenia and the medication made him drowsy. He testified that earlier ...


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