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State v. Richard

Court of Appeals of Louisiana, Third Circuit

February 6, 2019



          Holli Ann Herrle-Castillo COUNSEL FOR DEFENDANT-APPELLANT: Katron V. Richard

          M. Bofill Duhé W. Claire Howington COUNSEL FOR STATE-APPELLEE: State of Louisiana

          Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.



         On June 19, 2016, Mar'Quise Colbert was living with his aunt, Charlene Johnlouis, at her residence at 415 Hubertville Road, Jeanerette, Louisiana. Ms. Johnlouis was renting the house, which was owned by Randy Babineaux. His aunt awakened him by phone that morning and asked him to open the door for her because Katron Richard, the defendant, was outside the house and she was afraid to come in by herself. Mr. Colbert did so, and saw the defendant walking away from the house. Ms. Johnlouis changed clothes to go to work, and Mr. Colbert walked her to her car. Mr. Colbert then went back to sleep.

         About an hour later he woke up coughing and realized the house was on fire. Mr. Colbert ran out of the house and called his mother, then Ms. Johnlouis, and then 9-1-1.

         The house and contents were extensively damaged by the fire. An investigation into the cause and origin of the fire was conducted. The fire marshal who conducted the investigation determined it was incendiary in nature. In the course of the investigation, footage was retrieved from the security camera of a neighborhood home which showed a man walking both to and from the area behind Ms. Johnlouis's house immediately before the fire was discovered. Fire Chief Clarence Clark reviewed the footage and identified the man as his second cousin, Katron Richard, the defendant herein. Mr. Colbert also identified the man on the security camera footage as the defendant. Chief Clark contacted the defendant and asked him to come in and give a statement. The defendant agreed to come in for an interview but failed to appear. Ultimately, a warrant was issued for his arrest.

         The defendant was charged by bill of information filed on August 25, 2016, and amended bill of information filed on October 11, 2017, with aggravated arson, a violation of La.R.S. 14:51. Trial by jury commenced on October 16, 2017. The defendant was found guilty of the responsive verdict of simple arson over $500.00, a violation of La.R.S. 14:52, on October 18, 2017. On January 12, 2018, the defendant was sentenced to serve eight years at hard labor and ordered to pay restitution in the amount of $33, 617.98 to Mr. Babineaux and $10, 000.00 to Ms. Johnlouis.[1]' [2] A Motion to Reconsider Sentence was filed on January 30, 2018 and denied without a hearing the following day. A Motion for Appeal and Designation of Record was filed on February 26, 2018 and was subsequently granted.


         The defendant asserts two assignments of error:

1. The evidence was insufficient to uphold the conviction.
2. The sentence imposed was excessive.


         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

         Trial court gave the defendant insufficient advice as to the time period for filing post-conviction relief. The trial court advised the defendant as follows:

Mr. Richard, you have two years within which to file for post-conviction relief. If you think a state or federal constitutional right has been violated, you have two years to complain about it. Failure to complain about it within two years means you lose the right to complain about it.

         According to La.Code Crim.P. art. 930.8, the two-year prescriptive period for filing post-conviction relief begins to run after the conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. Thus, the trial court's advice was insufficient in that it failed to inform the defendant that the two- year time period will begin to run after the defendant's conviction and sentence become final. The trial court is directed to inform the defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof in the record of the proceedings that the defendant received the notice. See State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.


         In his first assignment of error, the defendant contends the evidence is insufficient to uphold his conviction for simple arson.

In State v. Bryant, 12-233 (La.10/16/12), 101 So.3d 429, the Louisiana supreme court addressed the sufficiency of the evidence claims, reiterating that the appellate review of such claims is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676 (La.1984). In applying the Jackson v. Virginia standard, the appellate court must determine that, when viewed in the light most favorable to the prosecution, the evidence is "sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." Bryant, 101 So.3d at 432. See also La.Code Crim.P. art. 821.
In State v. Spears, 05-964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222-23, the supreme court stated that:
constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law.
"Evidence may be either direct or circumstantial." State v. Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, [568] U.S. [838], 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard. State v. Williams, 33, 881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983)), writ denied, 00-99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La.R.S. 15:438.
In State v. Chism, 436 So.2d 464, 469 (La.1983) (citations omitted), the supreme court discussed the use of circumstantial evidence, stating:
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eyewitnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

State v. Williams, 13-497, pp. 3-5 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1239-40, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024. "[W]hen the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification." State v. Hughes, 05-992, p. 5 (La. 11/29/06), 943 So.2d 1047, 1051.

         The defendant was convicted of simple arson, which is "[t]he intentional damaging by any explosive substance or the setting fire to any property of another, without the consent of the owner and except as provided in [aggravated arson]." La.R.S. 14:52.

         Mr. Babineaux testified that he owned the residence located at 415 Hubertville Road in Jeanerette, Louisiana, on June 19, 2016. At that time, he rented the residence to Ms. Johnlouis for $600.00 a month. The house was furnished with a washer, dryer, stove, refrigerator, couch, and love seat when Ms. Johnlouis rented it.

         Mr. Babineaux testified he was at church at the time the house burned. Mr. Babineaux lost the following items in the fire: "the refrigerator, the range, washing machine, dryer, hot water heater, two air conditioning units, heat and cool units, 24, 000 BTUs, and the dining room set." Mr. Babineaux stated those items cost $5, 760.98. There was also structural damage to the home, and repairs were estimated at $20, 657.00.

         A few days before the fire, the defendant sought out Mr. Babineaux at one of his rental properties. The defendant asked Mr. Babineaux for a key to the Hubertville Road house. Although Mr. Babineaux was aware that the defendant lived at the home with Ms. Johnlouis, Mr. Babineaux denied the request because the house was rented to Ms. Johnlouis. This upset the defendant. Mr. Babineaux did not know if the defendant had any property inside the home.

         Chief Clark was employed by the St. Mary Parish Fire Protection, District Number 11. He was the first firefighter to respond to 415 Hubertville Road on June 19, 2016, arriving at 8:31 a.m. The state fire marshal was notified because the fire was suspicious in nature.

         Chief Clark concluded the fire was started on the outside of the home. He stated: "At the rear of the house where the 'V' pattern was, there was nothing capable of producing any type of heat or electrical arcing to start a fire." He explained a "V" pattern "basically, is the way the fire burns. Basically, fire burns up and out. Basically, where the 'V' pattern is [sic] where the fire normally would start. Once it goes up, it basically spreads out." Chief Clark found nothing structural in that area that would have caused the fire. Chief Clark testified the hot water heater was ruled out as the source of the fire. Chief Clark testified the state fire marshal concluded the fire was arson. Chief Clark did not find any accelerant or any kind of bottle at the scene of the fire.

         During his investigation, Chief Clark found that a house located one street from the Hubertville Road residence had security camera footage from the night in question.[3] Although the video footage was of poor quality, it was played for the jury. At 8:05 a.m., a man in a green shirt walked down the street carrying something in his hand. The man reappears at 8:08:40 a.m., walking in the direction he original came from, and his hands are empty.

         Chief Clark identified the man in the video as the defendant, who was his second cousin. He claimed he immediately recognized the defendant. When asked what caused him to recognize the defendant, Chief Clark stated, "Walk, character, person's movement and everything like that." Chief Clark later testified, "The walk comes back to him." Chief Clark was sure the person he saw was the defendant. However, Chief Clark could not say what kind of hairstyle the man had or if he had facial hair. Chief Clark agreed that "the person on that video [was] coming from behind the Hubertville house."

         Chief Clark was cross-examined about the video and evidence against the defendant as follows:

Q. Is it possible that it's not Katron on that video?
A. It can be possible. However, I've been in law enforcement and the fire service and know my people around town.
Q. But you say it's possible?
A. Yeah.
Q. You don't know if K. K. has a shirt like that?[4]
. . . .
A. I can't tell you what kind of shirt you have.
Q. Did you find any boots in his mom's house?
A. Never went to his mom's house.
. . . .
Q. Did you speak to the neighbor directly across ...

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