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State v. Latique

Court of Appeals of Louisiana, Third Circuit

February 20, 2019

STATE OF LOUISIANA
v.
ELIJAH JAMES LATIQUE

          APPEAL FROM THE 15TH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NUMBER CR 155978 HONORABLE DAVID M. SMITH, DISTRICT JUDGE

          Elijah 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

          Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.

          JONATHAN W. PERRY JUDGE

         Defendant 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.

         FACTS

         On the 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.

         After 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.

         PROCEDURE AND TRIAL

         On June 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.

         On 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.

         On 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.

         Defendant, 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.

         In 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.

         ERRORS PATENT REVIEW

         In 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.

         The 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."

         Louisiana 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.

         SUFFICIENCY OF EVIDENCE

         In his 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.

         In 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.

Aggravated Burglary

         As 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 office.

         In 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 the opening.
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.

         Initially, 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.

         The 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 ...


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