FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 24462-13 HONORABLE ROBERT LANE WYATT, DISTRICT
Watters Louisiana Appellate Project COUNSEL FOR
DEFENDANT/APPELLANT: Kade Starbuck Henry
Foster DeRosier Fourteenth Judicial District Attorney
Elizabeth Brooks Hollins Charles Robinson Cynthia
Killingsworth COUNSEL FOR APPELLEE: State of Louisiana
composed of Billy Howard Ezell, Shannon J. Gremillion, and D.
Kent Savoie, Judges.
SHANNON J. GREMILLION JUDGE
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 . . . ."
now seeks review of his conviction. For the following
reasons, we affirm Defendant's conviction but remand for
resentencing and instruction regarding post-conviction
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.
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.
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
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.
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.
for Post-Conviction Relief
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
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.
OF ERROR NUMBER ONE
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
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
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.
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))
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.
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