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State v. Wing

Court of Appeals of Louisiana, Second Circuit

February 28, 2018

STATE OF LOUISIANA Appellee
v.
DAMON ALLEN WING Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 340, 634 Honorable Katherine Dorroh, Judge

          LOUISIANA APPELLATE PROJECT By: Katherine M. Franks Counsel for Appellant

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee

          TRENEISHA JACKSON HILL JASON WALTMAN JOSHUA WILLIAMS Assistant District Attorneys

          Before MOORE, PITMAN, and GARRETT, JJ.

          GARRETT, J.

         The defendant, Damon Allen Wing, was convicted of two counts of simple burglary and sentenced to serve eight years at hard labor on each count, to be served consecutively. Wing appeals, claiming his sentences are excessive and should not have been ordered to be served consecutively. For the following reasons, we affirm the convictions, vacate the sentences, and remand for resentencing.

         FACTS

         On the afternoon of April 14, 2016, Caryn McCabe, the concessions manager at the Blanchard Athletic Club, arrived at the business to find it had been burglarized. A window was broken out of a door and the door had been unlocked from the inside. A cinderblock brick and a piece of rebar, apparently used to break the window, were found on the ground nearby. A bottle of sports drink, which had been partially consumed, was found on the counter, along with an ICEE, which was still frozen. The bathroom had been used and the toilet had not been flushed. The cash register and items on the safe had been moved. When Ms. McCabe left the building around 10 p.m. the night before, it had been completely cleaned and straightened.

         Ms. McCabe called the Blanchard Police Department. Sergeant Brian Anderson responded to the call and photographed the scene. Ms. McCabe put some plastic over the broken window.

         Early on the morning of April 15, Sgt. Anderson received information that Wing, who was 19 years old, was involved in the burglary. Sgt. Anderson contacted Wing. He was advised of his Miranda rights and signed a waiver of those rights. That morning, Wing wrote out a confession, in his own handwriting, which stated:

Yesterday afternoon I used a brick and rebar to break into the concesion [sic] stand at the ballpark and got a drink and some candy and then used the bathroom and hit the safe with a hammer and then people showed up and I left.

         The statement regarding hitting the safe with a hammer was puzzling to Sgt. Anderson because he had not observed much damage to it.

         Later that morning, following the initial interview with Wing, Sgt. Anderson was again dispatched to the Blanchard Athletic Club, which had been burglarized a second time. The plastic on the door had been broken through and the safe had been severely damaged, but had not been opened. Sgt. Anderson photographed the scene and went back to Wing, who was again advised of and waived his Miranda rights. Wing admitted that he burglarized the concession stand again after Sgt. Anderson photographed the scene on April 14. Wing added the following sentence to his statement:

Came back later that night and used a hammer on the safe to no evail [sic].

         Wing was charged with two counts of simple burglary and was tried by a six-person jury on March 7, 2017. Immediately before trial, a hearing was held on the admissibility of Wing's handwritten confession. The statement was found to be given freely and voluntarily and was admitted into evidence at trial. After hearing testimony from Ms. McCabe and Sgt. Anderson, examining the photographs admitted at trial, and reading Wing's confession, the jury ...


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