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State v. Simonson

Court of Appeal of Louisiana, Fourth Circuit

March 4, 2015

STATE OF LOUISIANA
v.
MICHAEL E. SIMONSON

Page 38

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 506-438, SECTION " E" . Honorable Keva M. Landrum-Johnson, Judge.

Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, PARISH OF ORLEANS, New Orleans, LA, COUNSEL FOR STATE OF LOUISIANA/APPELLEE.

Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.

Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins.

OPINION

Page 39

Sandra Cabrina Jenkins, Judge.

[2014-0950 La.App. 4 Cir. 1] After a trial by jury, Michael Simonson was convicted of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2, and sentenced to ten years at hard labor. The defendant now appeals, arguing that the evidence is insufficient to sustain the conviction and that the trial court erred in refusing to declare a mistrial on account of improper closing argument by the prosecutor. For the following reasons, we affirm the defendant's conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On April 9, 2011, ADT security received notice of alarms going off around 8:05 p.m. at the residence located at 7176 Lamb Street in New Orleans, Louisiana. ADT notified the police and Detective Derrick Williams responded to the call. When Det. Williams arrived at the residence, he observed a pickup truck in the driveway with the driver's side door open and the tailgate down; he also noted that the truck was running. Det. Williams called for backup as his experience led him to believe that a burglary was in progress, and then positioned himself to observe anyone coming out of the house. As he got closer to the house and looked into the backyard, he observed an individual, later identified as Troy Simonson, coming from the rear of the house pushing a refrigerator on a hand truck. When the [2014-0950 La.App. 4 Cir. 2] individual placed the hand truck down and attempted to maneuver the refrigerator into the truck bed, Det. Williams was able to grab and subdue the individual. While apprehending Troy, Det. Williams observed a second individual, later identified as Troy's brother, Michael Simonson, the defendant, behind him. The defendant began to run, but stopped upon Det. Williams' command. Det. Williams was ultimately able to detain the two individuals and place them in handcuffs. A pat down search of both men was then performed and a screwdriver was found in Troy's pocket; because screwdrivers are commonly used as a burglar tool to pry open doors and locks, it was confiscated.

Back up officers arrived after the men were secured and Det. Williams called the crime lab to survey the house for additional damage. The officers observed that the back sliding glass doors had been removed from their hinges and the house appeared to be in the process of being renovated as it was empty. Det. Williams noted that the burglar and fire alarms were pulled off the walls and ceiling, which damaged the sheetrock, and a fire alarm was found in the refrigerator. Pry marks were exhibited on all doors, the locks on the rear and front gate were damaged and defeated, and access through the rear gate was achieved.

Part of a locking mechanism was found on the front seat of the truck, and a pair of pliers was found on the back seat. The crime lab technicians attempted to obtain

Page 40

fingerprints from the truck, but were unable to do so because the surfaces were not suitable for prints. Det. Williams spoke with a neighbor and took a statement from him. Det. Williams also contacted the owner of the residence, David Davis, who was in Jackson, Mississippi at the time of the incident.

[2014-0950 La.App. 4 Cir. 3] Consequently, the defendant and his brother were charged with simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2.[1] The defendant later entered a not guilty plea and elected to be tried by a jury.[2]

Forest Buxton, Davis' neighbor of more than ten years, testified at trial that he heard a " loud boom" while sitting in his den on the evening in question. Buxton testified that he went in his backyard to see if there was " any kind of commotion on that side," but could not see anything as it was dark and an eight-foot wooden fence separated the properties. Buxton stated that he then went to his front door and observed a light colored pickup truck parked in Davis' driveway. Buxton received a call from Davis shortly thereafter, and based on that conversation, by the time Buxton went back outside to see what was going on, the police had arrived. Buxton testified that he then went to ...


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