FROM THE 15TH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NUMBER CR 155978 HONORABLE DAVID M. SMITH,
James Latique Thru Annette Roach Louisiana Appellate Project
Pro Se Appellant: Elijah James Latique
Annette Roach Louisiana Appellate Project Counsel for
Appellant: Elijah James Latique
Kenneth Hebert Assistant District Attorney and Keith Stutes
District Attorney, Attorneys for Appellee: State of Louisiana
composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W.
JONATHAN W. PERRY JUDGE
Elijah James Latique ("Defendant") appeals his jury
convictions for possession of a firearm by a convicted felon,
aggravated burglary, and attempted manslaughter, and the
sentences the trial court imposed. We affirm Defendant's
convictions and sentences, but we remand this matter to the
trial court to more fully inform Defendant of the provisions
of La.Code Crim.P. art. 930.8.
night of April 11, 2016, Robert Short ("Short") was
working at his business, Busy Bee Towing, in Scott,
Louisiana. While outside with a tow truck driver, he saw five
men pass, then double back and pass again. Shortly
thereafter, he saw Defendant pass on a bicycle, followed by
another man. Later, he saw the pair returning.
the tow truck driver left, Short went into his office, locked
the door, and worked at his desk. The office door had a large
translucent oval-shaped window and Short was able to see that
Defendant and another man were trying to look through the
door window. Short then armed himself with a handgun he kept
in the office and called emergency services. With guns
visible, the Defendant and the other man kicked open the
front door, leaving foot prints on the door, and initially
fled when they saw Short armed inside. However, as Short
rushed toward the open door, Defendant ran back toward the
office door and pointed his handgun at Short. Short shot
Defendant just outside the office door, and both the
offenders fled. When law enforcement responded, they found
Defendant moaning and bleeding in the tow yard, Short had
security cameras and was able to provide officers with
surveillance footage of the confrontation.
15, 2016, the State filed a bill of information charging
Defendant with aggravated burglary, possession of a firearm
by a convicted felon, and aggravated assault with a firearm.
On July 27, 2016, the State filed an amended bill charging
him with attempted first degree murder, a violation of
La.R.S. 14:27 and La.R.S. 14:30, and reiterated the other two
charges. Later on June 12, 2017, the State filed yet another
amended bill of information, ultimately charging Defendant
with three counts: Count 1, attempted second degree murder, a
violation of La.R.S. 14:27 and La.R.S. 14:30.1; Count 2,
possession of a firearm by a convicted felon, a violation of
La.R.S. 14:95.1; and Count 3, aggravated burglary, a
violation of La.R.S. 14:60.
September 26, 2017, the parties selected a jury, and the case
continued to trial. After hearing evidence on September 26
and 27, 2017, the jury deliberated and found Defendant guilty
of a lesser-included offense, attempted manslaughter, on the
first count, and guilty as charged on the other two counts.
March 22, 2018, the trial court sentenced Defendant to
fifteen years for attempted manslaughter, ten years and a $1,
000 fine for possession of a firearm by a convicted felon,
and twenty-five years at hard labor for aggravated burglary.
The trial court imposed the sentences concurrent to each
other, except for five years for Defendant's possession
of a firearm as a prior convicted felon which was imposed
consecutive to the other sentences.
represented by appellate counsel, now seeks review by this
court, assigning four errors: (1) The evidence introduced at
the trial of this case, when viewed under the Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) standard,
was insufficient to prove beyond a reasonable doubt that
Defendant committed the completed crime of aggravated
burglary; (2) The evidence introduced at the trial of this
case, when viewed under the Jackson standard, was
insufficient to prove beyond a reasonable doubt that
Defendant committed either attempted manslaughter or
attempted second degree murder; (3) The trial court erred in
returning the jury for further deliberation as to count one
after the jury returned a verdict form which complied with
the court's instructions and was lawful; and (4) The
sentences imposed by the trial court violate the Eighth
Amendment of the Constitution of the United States and
La.Const. art. 1, § 20, as they are nothing more than
cruel and unusual punishment and, thus, excessive.
addition, Defendant has urged three additional pro se
assignments of error: (1) All of the State's witnesses
were present during voir dire examination; (2)
Defendant's right to testify was erroneously forfeited;
and (3) Defendant's right to testify was unknowingly,
unintelligently, and involuntary waived.
accordance with La.Code Crim.P. art. 920, we review all
appeals for errors patent on the face of the record. After
carefully reviewing the record, we find one error patent.
record shows the trial court advised Defendant at sentencing
that he has "two years to file any post-conviction
relief petitions that he may be entitled to."
Code of Criminal Procedure Article 930.8 provides the
defendant has two years after the conviction and sentence
become final to seek post-conviction relief. Considering
the specific provisions of La.Code Crim.P. art. 930.8, we
find the trial court's advisement was insufficient
because it failed to alert the Defendant that the two years
commenced with the rendition of our opinion in this court.
Therefore, we direct the trial court to inform the Defendant
of the provisions of La.Code Crim.P. art. 930.8 by sending
written notice to the Defendant within ten days of the
rendition of this opinion and to file written proof in the
record that the Defendant received the notice. 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.
first two assignments of error, Defendant argues the
State's evidence was insufficient to support his
convictions for aggravated burglary and attempted
manslaughter. With regard to the aggravated burglary
conviction, Defendant contends the State failed to prove he
entered Short's office. As to the attempted manslaughter
conviction, Defendant further contends the State failed to
prove he had specific intent to kill Short, an essential
element of the crime charged.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.
5/7/97), 695 So.2d 1367, 1371, we articulated the
well-established analysis for such claims:
When the issue of sufficiency of evidence is raised on
appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing
denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126
(1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105
(La.1982); State v. Moody, 393 So.2d 1212 (La.1981).
It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate
court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State
ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this
Court to affirm a conviction, however, the record must
reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.
applicable in the present case, the elements of aggravated
burglary are found in La.R.S. 14:60(A)(1): "Aggravated
burglary is the unauthorized entering of any inhabited
dwelling, or of any structure, water craft, or movable where
a person is present, with the intent to commit a felony or
any theft therein, under any of the following circumstances:
(1) If the offender is armed with a dangerous weapon."
Defendant argues the State failed to prove any part of his
body passed the line of the threshold into Short's
State v. Bryant, 12-233, pp 5-6 (La. 10/16/12), 101
So.3d 429, 432-433, the supreme court addressed the meaning
of "entry" as contemplated in La.R.S. 14:60(A)(1):
"Entry" is not statutorily defined in Louisiana.
While this Court has never directly addressed the issue, our
appellate courts have found "entry" for purposes of
the crime of burglary whenever any part of the
defendant's body passes the line of the threshold.
See, State v. Abrams, 527 So.2d 1057, 1059
(La.App. 1st Cir.1988) ("it is sufficient if any part of
the actor's person intrudes, even momentarily, into the
structure"); State v. Hogan, 33, 077 (La.App. 2
Cir. 3/1/00), 753 So.2d 965, 967; State v.
Jefferson, 33, 333 (La.App. 2 Cir. 5/10/00), 759 So.2d
1016, 1019. The term has also been uniformly defined in
criminal law treatises. Wharton's provides:
There is entry when any part of the defendant's person
passes the line of the threshold. Thus, there is an entry
when the defendant, after opening a closed door, steps across
the threshold; when, after breaking the glass of a door or
window, he reaches inside to unlock the door or window or to
steal property; when in the course of breaking the glass of a
door or window, his finger, hand, or foot happens to pass
through the opening; or when, in the course of pushing open a
closed door or raising a closed window, his finger or hand
happens to pass the line of the threshold or to pass through
3 Wharton's Criminal Law, § 322, pp. 247-48 (15th
ed.1995, Charles E. Torcia, ed.); see also W.R.
LaFave, A.W. Scott, 2 Substantive Criminal Law § 8.13,
p. 467 (1986) ("It is sufficient if any part of the
actor's person intrudes, even momentarily, into the
structure. Thus, the momentary intrusion of part of a foot in
kicking out a window, constitutes the requisite entry.")
High courts in other jurisdictions have defined entry
similarly, consistently holding that a "slight
entry," consisting of any part of the actor's body
crossing the plane, is sufficient. See, People
v.Beauchamp, 241 Ill.2d 1, 348 Ill.Dec. 366, 944 N.E.2d
319, 324 (2011); State v. Keopasaeuth, 645 N.W.2d
637 (Iowa 2002); State v. Gutierrez, 285 Kan. 332,
172 P.3d 18, 23 (2007); State v. Crossman, 790 A.2d
603, 606 (Me.2002); Hebron v. State, 331 Md. 219,
627 A.2d 1029 (1993); State v. Fernandes, 783 A.2d
913, 917 (R.I.2001); Rowland v. Com., 281 Va. 396,
707 S.E.2d 331, 333 (2011). We agree with the universal
definition given to the term "entry," and hold as a
matter of law that an "entry" for purposes of the
crime of burglary occurs when any part of the intruder's
person crosses the plane of the threshold.
Short testified that the men "fell in" after they
kicked open the door. Defendant argues that no part of his
body crossed the threshold of the front door, only the barrel
of his gun extended into the office.
State presented evidence to the jury of Defendant's entry
into the Busy Bee Towing office by two means: a
contemporaneous security video of the entry and Short's
direct testimony. We have carefully viewed the video and
observe that although the camera was mounted on a post aimed
at the front door, it is somewhat difficult to determine to
what extent Defendant's hand or arm protruded into
Short's office. Nonetheless, the video clearly shows
Defendant's right foot and leg crossed the threshold of
the door as he kicked it. Despite Defendant's contention
that his hand did not cross the threshold, Short, who was off
to one side of the entry door, unequivocally testified
Defendant's and the other offenders' "hands were
in the building." Juries are not required to abandon
common sense and life experiences when they enter a jury
room. State v. Blazio, 09-851 (La.App. 5 Cir.
6/29/10), 44 So.3d 725, writ denied, 10-1781 (La.
2/4/11), 57 So.3d ...