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State v. Barker

Court of Appeals of Louisiana, Fourth Circuit

May 30, 2018

STATE OF LOUISIANA
v.
SAMUEL J. BARKER, JR

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 525-837, SECTION "I" Honorable Karen K. Herman, Judge

          LOMBARD, J., CONCURS IN THE RESULT Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu, Chief of Appeals ASSISTANT DISTRICT ATTORNEY Kyle Daly ASSISTANT DISTRICT ATTORNEY Mithun Kamath ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

          Katherine M. Franks LOUISIANA APPELLATE PROJECT P.O. COUNSEL FOR DEFENDANT/APPELLANT.

          (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown).

          Daniel L. Dysart Judge.

         Defendant, Samuel Barker, was charged on several felony counts and two misdemeanor counts arising out of a series of incidents which occurred in June, 2015. Following a simultaneous jury trial (on felony charges) and bench trial (on misdemeanor charges), Samuel Barker was found guilty on all but one of those counts (and guilty of a lesser included offense on one charge). After he was sentenced, Mr. Barker was then found to be a multiple offender and re-sentenced. Mr. Barker has appealed his conviction and sentences. In addition to his counseled appellate brief, Mr. Barker has filed several pro se briefs of his own.

         As discussed more fully herein, we find that Mr. Barker was properly convicted on all counts and we affirm his convictions and sentences.

         FACTS AND PROCEDURAL HISTORY

         On August 7, 2015, Samuel Barker was charged by bill of information with nine counts:

- Count 1: simple burglary of a structure ("3207 Dublin Street, belonging to Golean's Reception Hall"; hereafter referred to as "Golean's") occurring on June 15, 2015;
- Count 2: possession of burglary tools ("a screwdriver and/or a claw type hammer and/or channel lock pliers and/or needle nose pliers") occurring on June 14, 2015;
- Count 3: simple criminal damage to property (a television and/or D.J. equipment and/or a wall belonging to Golean's), where the damage amounted to more than $500.00 and less than $50, 000.00 occurring on June 14, 2015;
- Count 4: simple burglary of a shed (located at 1116 Napoleon Avenue) occurring on June 9, 2015;
- Count 5: theft of a computer valued at $750.00 or more but less than $1500.00 (belonging to Yolanda Parker) with the intent to permanently deprive Yolanda Parker of it occurring on June 9, 2015;
- Count 6: theft of a computer valued at $750.00 or more but less than $1500.00 (belonging to Notre Dame Seminary) with the intent to permanently deprive Notre Dame Seminary of it occurring on June 13, 2015;
- Count 7: simple criminal damage to property (a table belonging to Notre Dame Seminary) with damage amounting to less than $500.00 occurring on June 13, 2015;
- Count 8: attempted simple burglary of an inhabited dwelling (located at 8203 Oleander Street) occurring on June 14, 2015;
- Count 9: attempted simple burglary of an inhabited dwelling (located at 8201 Oleander Street) occurring on June 14, 2015.

         At his arraignment on August 12, 2015, Mr. Barker entered a plea of not guilty as to all charges. Between the date of the arraignment and Mr. Barker's trial, Mr. Barker filed no less than sixty-five pro se written notices, statements, pleadings and motions.[1]

         A trial on all counts took place on November 6, 2016. On November 9, 2016, the jury returned verdicts of guilty on all charges except count 8 (attempted simple burglary of an inhabited dwelling), for which the jury found Mr. Barker guilty of the lesser included offense of criminal trespass, a violation of La. R.S. 14:63. The following day, the court found Mr. Barker guilty of possession of burglars' tools, and not guilty of simple criminal damage to a table.

         Mr. Barker's counsel then filed a Motion for Post Judgment Verdict of Acquittal or in the Alternative a New Trial.[2] The motion was denied after a hearing on January 6, 2017. On the same day, Mr. Barker was sentenced to twelve years imprisonment at hard labor on counts 1 and 4; six months at Orleans Parish Prison on counts 2 and 8; two years imprisonment at hard labor on count 3; ten years imprisonment at hard labor on counts 5 and 6; and six years imprisonment at hard labor on count 9. He objected to both the sentences and the sentencing procedure. At the sentencing hearing, the State noticed its intent to file a multiple offender bill.

         A multiple bill offender hearing was held on July 13, 2017, after which Mr. Barker was adjudicated a fourth felony offender. The court then sentenced Mr. Barker as a fourth felony offender to life imprisonment at hard labor with no benefit of parole, probation, or suspended sentence on both counts of simple burglary (counts 1 and 4), and to twenty years imprisonment at hard labor with no benefit of parole, probation, or suspended sentence on the remaining felony counts of simple criminal damage to property, attempted simple burglary of an inhabited dwelling, and both counts of theft (Counts 3, 5, 6, and 9).

         ERRORS PATENT

         As is our practice, we have reviewed the record for errors patent, [3] and have detected several patent errors.

         First, La. C.Cr.P. art 873 requires that, for a felony conviction where a motion for new trial has been filed, "sentence shall not be imposed until at least twenty-four hours after the motion is overruled, " unless a defendant "expressly waives a delay . . . or pleads guilty, " in which case, the "sentence may be imposed immediately."

         The record of this matter reflects that the court failed to observe the twenty-four hour delay between the denial of a motion for a new trial and sentencing, as required in La. C.Cr.P. 873. On the morning of the sentencing hearing, Mr. Barker's counsel filed a motion for a judgment of acquittal or in the alternative a new trial. The trial court heard argument on the motions and denied both. It then proceeded to sentence Mr. Barker.

         Our jurisprudence indicates that a defendant is not prejudiced by a court's failure to observe the delay in connection with the original sentencing when a defendant is subsequently adjudicated as a multiple offender. State v. Everidge, 02-0309, p. 6 (La.App. 4 Cir. 12/11/02), 834 So.2d 1197, 1201; State v. Carter, 07-196, p. 13 n.3 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 204. In such a case, the failure to observe the twenty-four hour period is deemed harmless error. Id. Accordingly, in this case, because Mr. Barker was subsequently adjudicated as a multiple offender, we find that Mr. Barker was not prejudiced by the trial court's failure to wait twenty-found hours before sentencing him and further find that the error is harmless.

         Second, we note that the trial court's initial sentence on the two counts of theft where the value exceeds $750 but is less than $5, 000 was twice the length allowed by statute. La. R.S. 14:67 (B)(3) provides that when the "taking amounts to a value of one thousand dollars or more, but less than a value of five thousand dollars, the offender shall be imprisoned with or without hard labor, for not more than five years, or fined not more than three thousand dollars, or both." The trial court, here, sentenced Mr. Barker to ten years at hard labor for these counts. It appears that the trial court mistakenly sentenced Mr. Barker under subpart (B)(2) of La. R.S. 14:67 which provides a maximum sentence of ten years imprisonment with or without hard labor, where the value of the taking exceeds $5, 000.

         While there was clearly error on the trial court's part as to this sentence, we find no reversible error. Because the trial court subsequently imposed the minimum habitual offender sentence as allowed by law on those counts, there is no prejudice to Mr. Barker and we find the error to be harmless.

         Third, there is no indication in the minute entry or the transcript of the multiple offender proceeding that the district court vacated the original sentences before imposing sentence pursuant to the multiple offender statute. While some cases have held that the failure to vacate the original sentence warrants the setting aside of the multiple offender sentence and a remand for resentencing, [4] more recent cases have held that "where it is clear that the district court intended to replace the original sentence with the multiple offender sentence, any failure of the district court to vacate the original sentence before imposing the multiple offender sentence does not affect a defendant's substantial rights." State v. Wilson, 02-0776, pp. 4-5 (La.App. 4 Cir. 1/22/03), 839 So.2d 206, 210, citing State v. Norwood, 01-0432, p. 4-5, (La.App. 4 Cir. 8/29/01), 802 So.2d 721, 724-725, interpreting State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309, 816 and citing State v. Jackson, 00-0717 (La.App. 1 Cir. 2/16/01), 814 So.2d 6. In Wilson, this Court noted:

. . . [T]he transcript herein suggest[s] that the district court intended for the original two-year sentence to be replaced by the habitual felony offender sentence of life imprisonment; as evidenced by this colloquy:
The Court: Based on the submissions by the State the Court at this time is going to find that under Louisiana Revised Statute 15:529.1 that the defendant, Charles Wilson, is a fourth felony offender, and with two of the predicate offenses being possession with intent to distribute cocaine. Ms. Renfroe, are you now ready for sentencing?
Ms. Renfroe: Yes, your Honor.
The Court: Since this is a fourth felony ..., at this time Mr. Wilson I am going to sentence you to life imprisonment without benefit of parole, probation or suspension of sentence for the remainder of your natural life. I'm sorry to have done that but the statute mandates that.

Id., 02-0776, pp. 5-6, 839 So.2d at 210. The Court then held that the "failure of the district court to vacate Wilson's original sentence was an oversight, and the district court intended for the multiple offender sentence to replace the original sentence." Id., 02-0776, p. 7, 839 So.2d at 210. The Court likewise, noting that the defendant "did not object to this oversight at the multiple bill hearing and does not argue the point on appeal, " concluded that "any failure of the district court to vacate Wilson's original sentence before imposing the multiple offender sentence did not affect his substantial rights." Id., 02-0776, p. 6, 839 So.2d at 210-11.

         In the instant case, the record at Mr. Barker's original sentencing hearing indicates that the court intended to vacate his initial sentence and replace it with the multiple offender sentences, as evidenced by the court's response to his inquiry regarding sentencing guidelines: "I'm going to clarify [Mr. Barker's] sentence at the time of multiple bill hearing. This is just a preliminary sentence, prior to review of multiple bill. This is not the final sentence to be imposed in this section of court."

         Accordingly, we do not find that Mr. Barker's substantial rights have been violated either by the initial illegal sentence on the counts of theft, or by the court's failure to formally vacate the initial sentences. To the contrary, the record reflects that the trial court intended to vacate all of the previous sentences and impose the multiple bill enhancements on all of the convictions.

         We now turn to Mr. Barker's assignments of error.[5]

         ASSIGNMENT OF ERROR NO. 1

         In his first assignment of error, Mr. Barker maintains that the evidence presented at trial was insufficient to support convictions for three counts: count 5 (theft of Yolanda Parker's computer), count 6 (theft of a computer from Notre Dame Seminary) and count 9 (attempted simple burglary of an inhabited dwelling located at 8201 Oleander Street). His argument centers on his contention that (a) no one testified who could place Mr. Barker in Ms. Parker's "office or in possession of Ms. Parker's computer;" (b) no one testified that Mr. Barker was seen in the vicinity of the area where the computer was taken at Notre Dame; and (c) no one testified to having seen Mr. Barker attempting to gain entry into the property on Oleander Street.

         This Court reiterated the applicable standard of review for sufficiency of the evidence challenges in State v. Rapp, 14-0633, pp. 5-6 (La.App. 4 Cir. 2/18/15), 161 So.3d 103, 108, quoting State v. Marcantel, 00-1629, p. 8 (La. 4/3/02), 815 So.2d 50, 55:

The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See LSA- C.Cr.P. art. 821; State v. Hampton, 98-0331, p. 13 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999). Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. Louisiana Revised Statute 15:438 provides that the fact finder, when analyzing circumstantial evidence, must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

         Our jurisprudence also indicates that "[i]n the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion." State v. Williams, 11-0414 p. 18 (La.App. 4 Cir. 2/29/12); 85 So.3d 759, 771. Moreover, "[u]nder the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court" because ―a factfinder's credibility determination is entitled to great weight and should not be disturbed unless it is contrary to the evidence. " Id.

         With these principles in mind, we turn to the three convictions for which Mr. Barker, in his counseled brief, claims there was insufficient evidence to support his convictions.

         Counts 5 and 6

         The crime of theft is defined by La. R.S. 14:67 (A) as follows:

Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

         The following essential elements must be proven by the State: "(1) that the defendant misappropriated or took by means of fraudulent conduct, practices, or representations; (2) a thing of value; (3) that belonged to another; and (4) that the defendant had the intent to deprive the owner permanently of that which was misappropriated or taken." State v. Biddy, 13-0356, p. 12 (La.App. 4 Cir. 11/20/13), 129 So.3d 768, 776-77. (citation omitted).

         Theft of Ms. Parker's computer

         Yolanda Parker, an administrative assistant and substitute teacher at Watson Memorial Teaching Ministries, whose duties included the welcoming of visitors to the ministry, testified regarding the theft of her computer on June 9, 2015. According to Ms. Parker, the day of the theft was a Tuesday, a day on which the ministry regularly hosted a bible study at 6:30 p.m. While preparations were taking place for the bible study and a meal following it, Ms. Parker saw an unfamiliar man and she invited him into her office (where her laptop computer, valued at between $800 and $900, was located). She asked him if he needed anything to which he replied that he needed food and money. Ms. Parker advised him that the ministry did not have any money, but she invited him to stay for bible study and the meal.

         Feeling that this man had an "end game" and that he "looked like he was trying to get something, " she escorted him out of her office and offered him a seat. In such a situation, "[w]hen [she] know[s] that somebody is playing games, [she would] get one of the elders of the church to come in." She then left for a short period (between five and fifteen minutes) and when she returned, both the man and her laptop computer were gone. The following day, Ms. Parker contacted the New Orleans Police Department. In a recorded 911 call which was played for the jury, Ms. Parker reported that her computer had been stolen and she gave a description of the man who had come to the ministry the previous day, who she suspected had stolen her computer. A detective came to the ministry and showed her a picture which she positively identified as the man who had been in her office on June 9.

         While Ms. Parker testified that she did not actually see the man take her computer, she confirmed "that he was gone and [her] laptop was gone and he was near the vicinity of [her] property" during the time frame her computer disappeared. She likewise testified that she believed the man had taken her computer because "he wasn't in there for the right reasons, " she suspected he was "looking to scam" and because she knew all of the fifteen to twenty regular attendees of the bible study. Moreover, as Ms. Parker was investigating her missing laptop, she learned that the man had approached the ministry earlier that day through the back door of the school's kitchen seeking food and "looking to take something else, " which aroused her suspicions.

         Tiffany Watson, a director at Watson Ministries, also testified about the events of June 9, 2015. That day, while she was taking out the trash from the kitchen, a man approached her and asked her for money. She advised him that she did not have any, but invited him to return that evening for bible study. The man left, and thirty minutes later, he returned and asked if he had left his wallet. He then asked if he could look around, and Ms. Watson advised that he could not and she did not allow him into the ministry.

         Ms. Watson next saw the man later that evening around the time of the bible study. At that time, Mr. Barker was in the hallway, approximately six or seven feet from Ms. Parker's office. Later that evening, she learned that Ms. Parker's computer was missing when Ms. Parker asked if she had moved it. Both she and Ms. Parker searched for the computer but never located it. Ms. Watson concluded that the computer had to have been taken by the man she had seen twice that day after she checked to see that he had not gone to the bible study. She she testified that "he was really the only person that I figured would take it because we've never had those issues before." She indicated:

I made an assumption that he took it based on, first of all, that morning coming back saying he left his wallet, that kind of triggered something, and then later when I saw him kind of perusing in the hall, and then did not see him after that 30 seconds or less of seeing him again, and then within minutes or so Yolanda's laptop is missing. We have been there over 20 years and we are pretty sure that - I mean stuff just doesn't come up missing.[6]

         Ms. Watson later spoke to a police officer who showed her a picture and she identified that person as the man who she had seen that day.

         Mr. Barker contends that, because the State presented neither fingerprint evidence nor eyewitness testimony of the theft, the State failed to prove his identity as the thief, asserting that anyone else in the building could have stolen the computer. We find no merit to this argument. When "circumstantial evidence forms the basis of a conviction, such evidence must consist of 'proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.'" State v. Castro, 16-0284, p. 7 (La.App. 4 Cir. 12/14/16), 206 So.3d 1059, 1064, quoting State v. Shapiro, 431 So.2d 372, 378 (La. 1982).

         Here, the computer was never recovered or located after it was discovered missing, and neither Ms. Parker nor Ms. Watson had moved, taken, or knew the location of the computer. On this basis, reasonable jurors could have found that the computer had been taken, without Ms. Parker's consent, by someone without authority to possess it, who had the intent to deprive Ms. Parker of her computer permanently.

         We further find that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved that it was Mr. Barker who had taken the computer.

         Both Ms. Watson and Ms. Parker identified Mr. Barker as the man they had encountered at Watson Ministries from the photograph shown to them by a police officer.[7] Although neither witness had the opportunity to identify Mr. Barker during trial due to his earlier demand to exit the courtroom, the jurors viewed the same photograph the witnesses had seen and clearly made their own identification of him, as the jurors had seen Mr. Barker during voir dire and opening statement.[8]

         According to both Ms. Parker and Ms. Watson, Mr. Barker was the only person that evening who neither knew, and who could not be accounted for immediately following the theft. According to Ms. Watson's testimony, she had seen Mr. Barker alone in the hallway near Ms. Parker's office just before the bible study class began and within minutes of the theft. Similarly, Mr. Barker had been inside Ms. Parker's office and Ms. Parker left him alone while she went to find a church elder. Upon her return shortly thereafter, neither her computer nor Mr. Barker could be located. On this basis, the State presented sufficient evidence to support the jury's finding that Mr. Barker was the person who stole Ms. Parker's computer. It is clear that the jury rejected as unreasonable Mr. Barker's hypothesis that someone else had stolen the computer.

         We also note that the jury watched the surveillance video of the property located at 1116 Napoleon Avenue (see footnote 6), which showed Mr. Barker taking a piece of equipment from that residence, and also heard testimony about the theft of another computer from a religious establishment (discussed, infra), after Mr. Barker obtained entry under false pretenses and after having his request for money denied. While this other crimes evidence may not have been admissible to demonstrate Mr. Barker's bad character, it reasonably indicates Mr. Barker's identity as the perpetrator, his plan to gain entry onto private property, and his intent to commit a theft thereon. (La. C.E. art. 404 B(1)).[9]

         Thus, viewing the evidence in the light most favorable to the prosecution, we find the direct and circumstantial evidence adduced at trial to be sufficient for the jury's finding Mr. Barker guilty of the theft of Ms. Parker's computer.

         Theft of the computer from Notre Dame Seminary

         Like his argument with respect to the theft of Ms. Parker's computer, Mr. Barker contends that, because the State presented neither fingerprint evidence nor eyewitness testimony of the theft, the State failed to prove his identity as the thief, asserting that anyone else in the building could have stolen the computer. We disagree. After reviewing the entirety of the record, as we found in Castro, 16-0284, p. 7, 206 So.3d at 1064, here, the State presented "proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience." (internal quotation omitted).

         The testimony adduced at trial reflects that on June 13, 2015, Jennifer Prather, a Notre Dame Seminary student, observed a man ringing the doorbell of the seminary while she was on her lunch break.[10] She opened the door and the man advised that he was there to meet with Father (James) Warner. She advised the man that Father Warner was not present, to which the man responded that he was fifteen minutes early and that he would call Father Warner. She then left the man alone in the lobby as she had a class to attend. When shown video surveillance of the seminary during her testimony, Ms. Prather confirmed that it depicted the events of June 13, 2015 as well as the man she indicated had come to meet with Father Warner.

         Father Warner, who is the Director and President of the Notre Dame Seminary, testified that, on the morning of June 13, 2015, he was at a wedding. Upon his return from the wedding, he observed that a sealed door had been knocked over, the sheetrock wall had been "pushed in" between the mailroom and his secretary's office, and file cabinets and papers had been knocked down. There was debris on the floor and his secretary's office was disheveled.

         The following Monday, it was discovered that a computer from one of the classrooms had been stolen; it had been chained to a table and it had been "cut and removed."[11] Father Warner testified that the table to which the computer had been chained was located in the classroom nearest to his office.

         Father Warner determined that the theft of the computer occurred between the time that he had left in the morning and his return to the seminary that afternoon, or a "six-, seven-hour window." When he returned to the seminary, no one was present, as classes had already ended (there had only been the Saturday morning class). Father Warner testified that he had been at the seminary before he attended the wedding and nothing had been damaged. Importantly, he was not expecting any visitors to the seminary that day.

         Father Warner and the director of the facility looked at surveillance video from that day, which was shown to the jury, and noted the man about whom Ms. Prather had testified. Father Warner was well familiar with the man, having encountered him on several occasions. According to Father Warner, in about mid-May, the man "kept coming during business hours to the front door" and "asking for assistance." A receptionist regularly advised him that the seminary did not provide assistance but that there were places where he could receive some assistance. The man "was becoming very persistent, agitated." The receptionist pointed him out to Father Warner, who observed the man from a window.

         A few days before June 13, 2015, Father Warner and another priest were at a nearby restaurant, when the same man approached him, advised that his car was around the corner, that he was stranded and asking for money. Father Warner, having "seen him already on occasion, " told the man that he was aware that he "come to the seminary many times before" and had "been around." He then advised the man that he had "been instructed to where assistance can be given and there is no reason for [him] to come back to the seminary."

         Father Warner was certain that the man who approached him was the same man depicted in the surveillance video.

         NOPD Detective Sam Jennings testified that he was dispatched to investigate a possible theft at Notre Dame Seminary. He spoke with Father Warner, who advised him that an older, white, male had come to the seminary on several occasions seeking money but Father Warner had refused and asked the man not to return.

         According to Det. Jennings, "[a]fter he had been barred from the property, " he returned on June 13, 2015. He spoke with a female student, claiming he was there to see Father Warner and the student allowed him into the building. The man then entered a restroom and forced open a door which led to the secretary's office. From there, he entered a classroom from which a computer had been stolen, as evidenced by a "cut cable" which had previously secured the computer to the table. Det. Jennings testified that he viewed surveillance footage taken from the Seminary which showed Mr. Barker arriving at 12:39 pm and leaving at 1:13 pm..

         As this evidence establishes, Mr. Barker was seen on the surveillance video attempting to gain entry into the seminary on Saturday, June 13, 2015. Father Warner testified that he learned that the computer was missing on Monday, two days later and that the cord which secured the computer to the classroom table had been cut and the computer had not been recovered. Clearly, a rational juror could have concluded the computer had been stolen. We further find that, based on the totality of the circumstances, a rational juror could find Mr. Barker guilty of the theft of the computer from the seminary.

         As the evidence at trial established, Mr. Barker had come to the seminary on multiple occasions prior to June 13, 2015, seeking assistance. On each occasion, a receptionist informed Mr. Barker that the seminary did not provide assistance and advised him that there were other places he could seek assistance. A couple of days before June 13, 2015, Mr. Barker confronted Father Barker and asked for money. Father Warner refused his request, advised him that he had seen him at the seminary and asked him not to come to the seminary again. Nevertheless, Mr. Barker returned to the seminary, asked Ms. Prather for Father Warner, suggesting by his comment (that he was "fifteen minutes early") that he had a scheduled meeting with Father Warner. As Father Warner indicated, he was at a wedding on the morning of June 13, 2015 and had no scheduled appointments that day. On this basis, a reasonable juror could have found that Mr. Barker, having repeatedly been refused financial assistance from the seminary, used a subterfuge to gain access to the seminary.

         While it was not until two days later, Monday, June 15, 2015, that it was discovered that the computer was missing, Father Warner found that the wall had been pushed in, file cabinets overturned and his secretary's office disheveled on the afternoon of June 13, 2015. Any rational juror could conclude from these facts that the theft of the computer had occurred on June 13, 2015. Likewise, a rational juror could easily have concluded that a stranger to the seminary forced open the sealed door, causing the damage to the wall, and "ransacked" the secretary's office in search of money or something of value, and continued to the room next door and stole the computer.

         Considering the record as a whole, it is clear that the jury found Mr. Barker guilty of theft based on the circumstantial evidence presented and the similarity of the thefts at the Watson Memorial Teaching Ministries and Notre Dame Seminary: neither building was open to the general public, Mr. Barker had visited each building prior to the disappearances of the computers asking for money and using a ruse to gain entry (or in the case of Ms. Parker's computer, attempted to use a ruse - that he had misplaced his wallet - to gain entry into the building), and computers went missing after Mr. Barker's otherwise unauthorized presence.

         As we found with respect to the theft of Ms. Parker's computer, the circumstantial evidence in this case consists of "'proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.'" Castro, 16-0284, p. 7 (La.App. 4 Cir. 12/14/16), 206 So.3d at 1064. Furthermore, under La. C.E. art. 401 and our jurisprudence, even if the charges had not been joined, the other crimes evidence would have been admissible in each case and the jury could have formed the same inference of guilt based on the similarity of the two thefts. As the Louisiana Supreme Court indicated in State v. Rose, 06-0402, p. 13 (La. 2/22/07), 949 So.2d 1236, 1243, "the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In Rose, the Supreme Court found that "t[t]he similar nature of [two] crimes clearly demonstrates an identifiable, concrete, relevant pattern of behavior of the defendant that is so distinctively similar that one may logically infer that the same person committed both crimes. Id, 06-0402, p. 16, 949 So.2d at 1245.

         In State v. Taylor, 01-1638 pp. 10-16 (La. 1/14/03) 838 So.2d 729, 741-745, quoting State v. Colomb, 98-2813 p. 3 (La. 10/1/99) 747 So.2d 1074, 1076, the court held admissible evidence of all crimes the defendant allegedly committed in a spree lasting seven days and traversing several states observing that:

integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state's case would lose its 'narrative momentum and cohesiveness, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.'"

         The court continued,

"under the rule of narrative completeness incorporated into the res gestae doctrine 'the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault.'"

Id., quoting Old Chief v. United States, 519 U.S. 172, 188, 117 S.Ct. 644, 654 (1997).

         In the instant case, under the current record and viewing the evidence in the light most favorable to the prosecution, a rational juror could have reasonably concluded that Mr. Barker was guilty of theft of the computer from Notre Dame Seminary.

         Count 9

         Attempted simple burglary of an inhabited dwelling located at 8201 Oleander Street

         The crime of simple burglary of an inhabited dwelling is defined by La. R.S. 14:62.2 as follows:

Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment, or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60.[12]

         Under La. R.S. 14:27, an attempted crime is defined as:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

         The testimony regarding count 9 was elicited primarily from two witnesses, although a recording from a 911 emergency call was played for the jury as well. The first witness to testify was Martin Mitchell who lives at 8203 Oleander St., a duplex. Mr. Mitchell lives in the upstairs unit and his tenant, David Dean, lives in the downstairs unit, 8201 Oleander St.[13] On June 14, 2015, Mr. Mitchell "happen[ed] to just look out the window" and he saw an elderly white haired Caucasian man within the gate of the yard that enclosed the property. Feeling that the man was trespassing, Mr. Mitchell went out the back door to "see what [was] going on." He could then see that the man was inside the screen door, in front of the door to the property. When he asked the man what he was doing, the man mumbled something and left.

         Mr. Mitchell's tenant then came to the door, and they noticed that "there were indentations in his door, and in the doorknob, right, like someone was trying to jimmy it." He saw the man across the street where a "meeting hall" is located and he asked the man "what is going on?" His wife then called 911.

         At that point in the trial, the 911 recording was played for the jury.[14] In that call, Jewel Pichon reported an attempted break-in at her neighbor's house and identified the perpetrator as wearing an aqua-blue shirt and khaki pants, and carrying a black suitcase. She stated that the suspect knocked on her door following the attempted break-in at her neighbor's house. She watched the suspect leave her property and enter into the alleyway of 3201 Dublin St. through the back gate. She also stated that the suspect had used a screwdriver in an attempt to "jimmy the locks, " and had left it behind at the neighbor's residence.

         Within ten or fifteen minutes of the 911 call, the police arrived at the property and Mr. Mitchell and his tenant sent him across the street where they had last seen the man, who was then arrested. The man was brought back for Mr. Mitchell who identified him as the man he had seen on his property. Photographs of the door which had been taken on that day were shown to Mr. Mitchell at trial and he agreed that the damage to the doorknob depicted in the photos was "in the same location as where [he] observed [Mr. Barker]."

         Mr. Howard was next to testify. He indicated that he left his home to get something to eat and saw a gentleman "leaning up against the reception hall" (Golean's) across the street. When he returned, he spoke with Mr. Mitchell, who told him that there had been a man knocking on the doors to the property and Mr. Mitchell's wife "had him go downstairs to remove the guy from the premises." Later that afternoon, he saw the same man having been arrested at the reception hall. Mr. Howard confirmed that the property was surrounded by a metal fence and two gates; to get to his front door, one must first open a screen door.

         According to Mr. Howard, Mr. Mitchell advised him that the man who had been at the door had "had taken off before he could run him off the property." He then examined the front doorknob and felt something sharp on his thumb; he testified that "someone had tried to knock the doorknob off of [his] front door." Mr. Howard was shown photographs of the doorknob. He confirmed that the doorknob was in fact, the doorknob to his home and the damage to it had not been present the last time he had used the door. Mr. Howard did not know Mr. Barker and had never seen him before. He stated that he had not invited Mr. Barker onto his property or inside his residence

         In Mr. Barker's counseled brief, there is an assertion that "David Howard did not testify at the trial." It then states that "Martin Mitchell, his landlord and neighbor, told the jury that Mr. Howard said the marks on his doorknob were recent." The limited argument, thus, was that the conviction was based on "uncorroborated hearsay." A counseled reply brief was then filed, [15] which corrected this fact and then made the argument that "[t]he testimony of Mr. Howard and Mr. Mitchell is conflicting as to where Mr. Howard was when Mr. Mitchell confronted Mr. Barker." Mr. Barker then argued that "should Mr. Howard have been in the house as Mr. Mitchell testified, it would mean that he had entered his home without ever noticing that the door had been damaged, indicating the damage could have been done at some earlier time and also not noticed."

         We do not view the testimony of Mr. Mitchell and that of Mr. Howard to be so conflicting as to be unreliable. First, while Mr. Howard did not testify that he saw Mr. Mitchell outside in the yard when he returned home, he was not asked this question directly; rather, he simply stated that his conversation with Mr. Mitchell about the attempted burglary occurred at some point after he returned from his meal. Second and more importantly,

[conflicting statements as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244 (La.App. 4 Cir.1989). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact's determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938 (La. 1984).

State v. Wells, 10-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. "The testimony of a single witness, if believed by the trier of fact, is sufficient to ...


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