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State v. Henry

Court of Appeal of Louisiana, Third Circuit

March 4, 2015

STATE OF LOUISIANA
v.
DEMONTE JAMAR HENRY

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 32344-12. HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE.

John Foster DeRosier, District Attorney, Lake Charles, LA, COUNSEL FOR APPELLEE: State of Louisiana.

Edward John Marquet, Louisiana Appellant Project, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLANT: Demonte Jamar Henry.

Demonte Jamar Henry, Kinder, LA, IN PROPER PERSON.

Court composed of Marc T. Amy, John E. Conery, and David Kent Savoie, Judges.

OPINION

Page 1177

[14-1131 La.App. 3 Cir. 1] AMY, Judge.

The defendant was indicted for armed robbery and armed robbery with a firearm. After a trial, a jury found the defendant guilty of attempted armed robbery and attempted armed robbery with a firearm. The trial court sentenced the defendant to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence for the attempted armed robbery conviction, and five years at hard labor without benefits for the attempted armed robbery with a firearm conviction. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The defendant, Demonte Jamar Henry, was charged with armed robbery, a violation of La.R.S. 14:64, and armed robbery with a firearm, a violation of La.R.S. 14:64.3. Those charges stem from an incident that occurred at a party where the defendant allegedly pointed a gun at the victim, an acquaintance, and told him to " give it up." In response, the victim threw his cell phone at the defendant and ran. The defendant suggested that the incident was a prank and that he did not intend to rob the victim. Further, the defendant denied that he had a gun.

After a trial, the jury found the defendant guilty of attempted armed robbery, a violation of La.R.S. 14:27 and 14:64, and attempted armed robbery with a firearm, a violation of La.R.S. 14:27 and 14:64.3. The trial court sentenced the defendant to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence for the attempted armed robbery

Page 1178

conviction and five years at hard labor without benefits for the attempted armed robbery with a firearm conviction. The defendant's sentences were to be served consecutively.

[14-1131 La.App. 3 Cir. 2] The defendant appeals, asserting that his sentence is excessive. The defendant has also filed a pro se brief, asserting therein that the evidence is insufficient to support his conviction and that the trial court failed to grant a severance as to his and his co-defendant's trials.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After performing such a review, we note no errors requiring correction by this court.

Sufficiency of the Evidence

The standard of review for sufficiency of the evidence claims in Louisiana is long-settled. In State v. Hearold, 603 So.2d 731, 734 (La.1992) (footnote omitted), the supreme court stated:

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.

Further, because it is the fact finder's role to weigh the respective credibility of the witnesses, the appellate court should not second guess the credibility determinations of the fact finder beyond the sufficiency evaluations required by the [14-1131 La.App. 3 Cir. 3] Jackson standard of review. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Pursuant to La.R.S. 14:64(A), " [a]rmed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous ...


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