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State v. Bauman

Court of Appeals of Louisiana, Fourth Circuit

December 20, 2017

STATE OF LOUISIANA
v.
ANTHONY BAUMAN

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 527-364, SECTION "C" Honorable Benedict J. Willard, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu, Chief of Appeals ASSISTANT DISTRICT ATTORNEY Mithun Kamath ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR APPELLEE/STATE OF LOUISIANA

          Sherry Watters LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT

          Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet

          Daniel L. Dysart, Judge

         The defendant, Anthony Bauman, appeals his conviction of purse snatching. For the reasons that follow, we affirm his conviction and sentence.

         PROCEDURAL AND FACTUAL BACKGROUND

         By bill of information dated December 1, 2015, the defendant was charged with one count of purse snatching, a violation of La. R.S. 14:65.1.[1] The defendant pled not guilty to the charges and proceeded to a jury trial on June 1, 2016. On the day of trial, the defendant filed numerous motions, including a motion for a twelve person jury and a motion for the court to instruct the jury on responsive verdicts as provided in La. C.Cr.P. art. 815.[2] At the conclusion of the trial, the jury found the defendant guilty. After the trial court denied the defendant's post-trial motions (to arrest the judgment, for a new trial and for a post-verdict judgment of acquittal), the trial court sentenced the defendant to serve five years at hard labor with credit for time served. Thereafter, the State filed a bill of information charging the defendant as a multiple offender. The hearing on the multiple offender bill was set for December 9, 2016, but was continued without date.

         This appeal followed.

         This case arises out of an incident which occurred on November 6, 2015, at Razoo's Bar and Patio ("Razoo's"), located in the 500 block of Bourbon Street. According to Michael Roberts, who was employed as a security supervisor at Razoo's on that date, he received a report over his radio that a guest's wallet had been stolen. After speaking to the victim, he reviewed the security camera footage to gather more information.

         Mr. Roberts testified that, to his knowledge, Razoo's had thirty-five video cameras placed intermittently throughout the bar at various angles. The cameras recorded twenty-four hours a day and the footage was stored on a hard drive for 365 days. After reviewing the footage that night from three of the cameras (two of which recorded the location of the offense from different angles, and the other recorded an outdoor view of the entrance/exit), he made a copy of the video footage to give to the police. He then escorted the victim to the Eighth District Police Station to file a report.

         Mr. Roberts authenticated the videos during his testimony at trial and the State played them in open court while Mr. Roberts narrated the events. Mr. Roberts identified the victim and two suspects in the video. He positively identified the defendant at trial and explained that the footage depicted the defendant and the other suspect speaking to each other and the defendant then reaching toward the side of the victim, following which the two men exited Razoo's.

         Mr. Roberts testified that forty-five minutes after he had returned to Razoo's from the police station, he assumed a security position at one of the doors to the club. From there, he observed the two suspects walking down the street together and immediately recognized them from the security footage.

         The victim, Makenna Wilson, testified that she was visiting New Orleans from Little Rock, Arkansas, to attend a Saints football game with friends. Once she arrived and checked into her hotel, she and her friends went to dinner, explored Bourbon Street, and then entered Razoo's around 10:00 pm. They were inside the bar for only a minute or two when a "shot girl" approached them, selling shots of alcohol. Ms. Wilson purchased one and removed her wallet from her purse to pay with cash. Ms. Wilson also removed her cell phone from her purse at the same time to take a picture. After she paid for the shot, she placed her wallet back into her purse, but left the purse open at that point so she could secure her cell phone inside her purse after she took the picture.[3] When she placed the cell phone back into her purse, perhaps thirty seconds to a minute later, she discovered her wallet was no longer there.

         Ms. Wilson testified that she began to panic and asked nearby patrons if they had seen anything, then reported the theft to a security guard and a bartender, who reported it to the manager. She then walked to the police station and made a written report which she read in open court at the trial:

I, Makenna Wilson, was robbed the night of November 6, 2015, in Razoo Bar. The two men worked together. One distracted me, and the other reached in and took the wallet and walked out the door. The young man was the one that had contact. He was about six feet tall with a graphic tee, and a black male.

         The State played the security footage in open court again and Ms. Wilson narrated the events. She identified herself in the video and the two men whom she claimed committed the theft. She explained that one of the men approached their group while she was attempting to convince her friend to drink the shot.[4] When the man approached, he stood directly by her side and joined in cajoling the victim's friend to drink the shot, cheering, "Come on, you can take it; do it! Do it!" Ms.Wilson testified that she did not know who the man was, nor did she invite him to join their group.

         As the video played in court, Ms. Wilson was able to pinpoint the moment that the defendant removed her wallet from her purse and identified her wallet in the defendant's hand. She testified that she did not know the defendant, had not invited him to join them, and gave him neither her wallet, nor consent to possess her wallet. She stated that once the defendant had her wallet in his possession, the man in the graphic tee departed "pretty quickly."

         According to Ms. Wilson's testimony, at the time her wallet was taken, it contained about $160 in cash, a credit card, a debit card, her identification, memorabilia she had collected over time, and a blank check signed by her boss. The next day, an unknown woman from Florida contacted her and stated that she had found some of her belongings scattered in an alley the night before. She met the woman and recovered her identification, debit card, credit card, health insurance card, and bank account card. Neither the cash nor the blank check was among the items recovered.

         Louisiana State Police Trooper William Woodward stated that he was assigned to the French Quarter on foot patrol to assist the New Orleans Police Department ("NOPD") during heavy traffic flow on the weekends. Sometime after midnight on November 7, 2015, he was assisting the NOPD in effectuating an arrest on a drunk and disorderly subject one block from Bourbon Street when he heard a report over his radio of a purse snatching in the area. After completing the arrest, he observed a motorcycle rider on Toulouse Street commit several traffic violations, so he detained the rider to issue a citation. As he was writing the citation, a man approached him and identified himself as a security guard from a nearby bar. He informed Trooper Woodward that "he had eyes on" the two suspects who had committed a purse snatching around the corner. Trooper Woodward told the security guard to "keep [his] eyes on [them], " while he finished conducting the traffic stop. Trooper Woodward and his partner then relocated to the intersection of Bourbon and Toulouse Streets to meet the security guard.

         Trooper Woodward testified that the security guard led him to two men loitering in the vicinity and touched each of them in the chest saying, "[h]im and him." Trooper Woodward stated that one of the suspects appeared to be in his twenties and the other appeared to be in his late forties or early fifties. Trooper Woodward and his partner immediately placed the two suspects in handcuffs and issued Miranda warnings. He took the suspects to the Eighth District Police Station and attempted to view the security footage but it would not play on the equipment at the station so he returned to Razoo's to view the footage there.

         Once again, the state played the security footage in open court and Trooper Woodward identified the defendant and Mr. Washington on the video, described their appearance and clothing, and confirmed that they were the two men he arrested, stating that they were wearing the same clothes at the time of the arrest. Trooper Woodward also testified that he had taken pictures of the suspects at the police station, which the state introduced at trial, to show that they were wearing the same clothes in the photos as depicted in the security footage. Trooper Woodward stated that, in a search incident to arrest, he seized $190 in cash from defendant's person.

         Former co-defendant in the instant case, Kevin Washington, testified that, earlier that day, he pled guilty to felony theft. He stated that he did not take the victim's wallet and he did not know who had. On cross-examination, he admitted that he had been arrested and charged with purse snatching, but the state had allowed him to plead to theft that morning to avoid trial. He stated that his lawyer advised him it was in his best interest and he had taken responsibility for his actions.

         The defense called NOPD Officer, Juanita Stretz, who testified that she was the officer who wrote the initial report in the instant case. She stated that one of her duties as an administrative officer was to write reports based on information provided by victim(s), and, based on that information, determine the appropriate booking charges. In the report she authored in this case, she entered "theft/pickpocket" under the "charges" section of the report, and wrote "pickpocket" under the "Incident Heading" section. She also listed the "signal code" as a "67-B, " which is the code for theft by pickpocket.

         On cross-examination, Officer Stretz admitted that the charge she listed in her report was determined solely on information the victim provided. Although she had been in possession of the security footage, she had not viewed it because, as she stated, it was not her responsibility to fully investigate the case. She conceded that the charges listed in her initial reports are not always the charges the District Attorney accepts, and in this case, both the investigating detectives and the state determined the appropriate charge was purse snatching.

         DISCUSSION [5]

         The defendant has raised two issues in this appeal: whether he was constitutionally entitled to a jury of twelve persons and whether he was entitled to a jury instruction regarding a responsive verdict. We address each contention in turn.

         At the outset, however, we note that, while the defendant did not assign the sufficiency of the evidence as an error or expressly raise it as an issue in this case, in the body of his brief, he argues that the evidence presented at trial "was not sufficient to sustain a conviction for [p]urse [s]natching" but rather, supported "a conviction for misdemeanor theft." Accordingly, and "in accordance with the well-settled jurisprudence, '[w]hen issues are raised on appeal 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 ...


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