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State v. Henry

Court of Appeals of Louisiana, Third Circuit

October 3, 2018

STATE OF LOUISIANA
v.
KADE STARBUCK HENRY

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 24462-13 HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

          Sherry Watters Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Kade Starbuck Henry

          John Foster DeRosier Fourteenth Judicial District Attorney Elizabeth Brooks Hollins Charles Robinson Cynthia Killingsworth COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.

          SHANNON J. GREMILLION JUDGE

         On August 15, 2013, Defendant, Kade Starbuck Henry, entered a trailer, where his brother lived, without authorization. Defendant was charged with unauthorized entry of an inhabited dwelling, a violation of La.R.S. 14:62.3 on October 15, 2013. A jury found him guilty as charged on May 11, 2017. Defendant had been incarcerated since July 11, 2015, on other charges; the trial court sentenced him to time served, noting he had "paid [his] debt on this charge . . . ."

         Defendant now seeks review of his conviction. For the following reasons, we affirm Defendant's conviction but remand for resentencing and instruction regarding post-conviction relief.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find two errors patent in the record.

         Indeterminate Sentence

         Defendant received an indeterminate sentence. For the offense of unauthorized entry of an inhabited dwelling, the trial court sentenced Defendant to time served. Prior to sentencing, the trial court inquired whether the current charge was the only one that Defendant was being detained on in the Calcasieu Correctional Center at that time; he was informed that it was not, and that Defendant had other pending charges. When asked by the trial court how long Defendant had been incarcerated, the deputy clerk responded that Defendant had been incarcerated since July 11, 2015.

         Louisiana Code of Criminal Procedure Article 879 requires the imposition of a determinate sentence. In State v. Sedlock, 04-564, pp. 2-3 (La.App. 3 Cir. 9/29/04), 882 So.2d 1278, 1280, writ denied, 04-2710 (La. 2/25/05), 894 So.2d 1131, this court, addressing a similar issue, held:

For the offense of cruelty to juveniles, the trial court imposed the following sentence: "The Court is going to sentence him to two years in the parish jail. I'm going to suspend all but time served of that two years. I'm going to place him on supervised probation for the balance of that two-year period. . . ." Rather than specify the period of probation, the trial court placed the Defendant on probation for "the balance of" the two-year period. In other words, the trial court placed the Defendant on probation for whatever time remained after the "time served" portion was deducted from the two years. Since the "time served" portion of the sentence was not specified, we find the trial court imposed an unspecified and indeterminate period of probation. Louisiana Code of Criminal Procedure Article 893(A) provides in pertinent part: "The period of probation shall be specified and shall not be less than one year nor more than five years." Since the probation period imposed in the present case was not specified and is indeterminate, we find that the sentence imposed for cruelty to juveniles should be vacated and the case remanded for resentencing specifying the period of probation in accordance with La.Code Crim.P. art. 893.

         For unauthorized entry into an inhabited dwelling, Defendant faced a fine of not more than one thousand dollars or imprisonment with or without hard labor for not more than six years or both. It appears from the trial court's inquiry regarding Defendant's detention at Calcasieu Correctional Center that the court intended for Defendant's sentence to be served without hard labor, but the term was not specified, especially since it was unclear whether Defendant had been incarcerated on the current offense since July 11, 2015, or whether that may have been for another of his pending charges. Accordingly, Defendant's sentence should be vacated, and the case remanded for imposition of a specified term in accordance with La.R.S. 14:62.3.

         Application for Post-Conviction Relief

         The trial court failed to clearly advise Defendant of the time limitations for filing an application for post-conviction relief. According to La.Code Crim.P. art. 930.8, the prescriptive period for filing post-conviction relief is two years, and it begins to run when a defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Defendant was informed that he had two years from the date of sentencing "and sentence becoming final" to file an application for post-conviction relief.

         It is not clear whether the trial court advised Defendant that he had two years from the date of sentencing, two years from the date the sentence becomes final, or both, to file an application for post-conviction relief. Thus, we instruct the trial court to correctly inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

         ASSIGNMENT OF ERROR NUMBER ONE

         Defendant argues the State failed to prove him guilty of unauthorized entry of an inhabited dwelling beyond a reasonable doubt. The standard of review in a sufficiency of the evidence claim is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court "to substitute its own appreciation of the evidence for that of the fact-finder." State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court's function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

         The factfinder's role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, "the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental due process of law." State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve "'the factfinder's role as weigher of the evidence' by reviewing 'all of the evidence . . . in the light most favorable to the prosecution.'" McDaniel v. Brown, 558 U.S__., __, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, . . . this fundamental principle of review means that when a jury "reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378.

         "Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person." La.R.S. 14:62.3(A). "Unauthorized entry of an inhabited dwelling requires general intent. General criminal intent is present when the circumstances indicate that the offender 'in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act.'" State v. Riviere, 08-105, p. 5 (La.App. 5 Cir. 5/27/08), 986 So.2d 768, 770-71, writ denied, 08-1383 (La. 2/13/09), 999 So.2d 1146 (citation omitted). "In general intent crimes, the criminal intent necessary to sustain a conviction is established by the very doing of the proscribed acts." State v. Williams, 03-3514, p. 13 (La. 12/13/04), 893 So.2d 7, 16 (citing State v. Kennedy, 00-1554 (La. 4/3/01), 803 So.2d 916, 923; State v. Holmes, 388 So.2d 722, 727 (La.1980))

         "It is not necessary that a person be present in the dwelling at the time of the unauthorized entry to satisfy the inhabitation requirement; however, it must be proven that someone was actually 'living' in the dwelling at the time." State v. Morrison, 07-5, p. 5 (La.App. 5 Cir. 3/27/07), 957 So.2d 203, 205, writ denied, 07-742 (La. 11/2/07), 966 So.2d 601, and writ denied, 08-2090 (La. 1/30/09), 999 So.2d 752. "In the case of a private residence, a person must have the consent of the occupant or an occupant's agent to constitute a defense to unauthorized entry." State v. Butler, 06-645, p. 5 (La.App. 5 Cir. 12/27/06), 948 So.2d 296, 299.

         The jury heard lengthy but significant background information about Defendant's relationship with his family at trial. Defendant's father, Errol James "Jimmy" Henry, owned three corporations, H & H Metal Contractors, H & H Industrial Contractors, and Metal Outlet, with his brothers. Some of Mr. Henry's children, nieces, and nephews have in the past worked or presently work in the businesses. Defendant began working in the companies when he was around fourteen years old, sweeping floors. He became a steel ...


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