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
composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart,
Judge Paula A. Brown).
L. Dysart Judge.
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.
discussed more fully herein, we find that Mr. Barker was
properly convicted on all counts and we affirm his
convictions and sentences.
AND PROCEDURAL HISTORY
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.
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.
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.
Barker's counsel then filed a Motion for Post Judgment
Verdict of Acquittal or in the Alternative a New
Trial. 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
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).
our practice, we have reviewed the record for errors patent,
have detected several patent errors.
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
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.
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
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.
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.
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,  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.
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."
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.
turn to Mr. Barker's assignments of error.
OF ERROR NO. 1
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
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.
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.
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.
5 and 6
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.
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).
of Ms. Parker's computer
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.
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.
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.
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.
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.
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.
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
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.
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.
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. 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.
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.
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
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.
of the computer from Notre Dame Seminary
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).
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. 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
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.
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." Father Warner testified that the table
to which the computer had been chained was located in the
classroom nearest to his office.
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.
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.
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
Warner was certain that the man who approached him was the
same man depicted in the surveillance video.
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
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..
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.
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.
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.
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.
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.
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
"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).
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
simple burglary of an inhabited dwelling located at 8201
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.
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.
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. 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.
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.
point in the trial, the 911 recording was played for the
jury. 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
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]."
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.
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
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,
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."
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