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State v. Kraemer

Court of Appeals of Louisiana, First Circuit

September 27, 2019


          On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana No. 597061-1 Honorable Scott Gardner, Judge Presiding

          Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Attorneys for Appellee, State of Louisiana

          Bertha M. Hillman Covington, Louisiana Attorney for Defendant/Appellant, Patrick James Kraemer


          PENZATO, J.

         The defendant, Patrick James Kraemer, was charged by bill of information with three counts of theft of a firearm, violations of La. R.S. 14:67.15. He pled not guilty. Following a jury trial, he was found guilty as charged on all counts. On each count, he was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence and "a single $1000[.00] fine." Thereafter, the State filed a habitual offender bill of information against the defendant.[1] The defendant admitted to the allegations in the habitual offender bill. The court adjudged him a second-felony habitual offender on count I, vacated the sentence previously imposed, and resentenced him to twelve years at hard labor without benefit of probation, parole, or suspension of sentence on count I. The court also ordered that the sentences on all three counts be served concurrently. He now appeals, contending: (1) the trial court erred in denying a request for a special jury charge; and (2) the evidence was insufficient to support the convictions. For the following reasons, we affirm the convictions, the habitual offender adjudication and sentence on count I, amend the sentences on counts II and III, and affirm the sentences on counts II and III as amended.


         On October 3, 2017, Carl Muir reported that someone had stolen three of his firearms. Hilda Kraemer, [2] the defendant's grandmother, had stored the guns in her home for Muir when he worked out-of-state. The defendant lived in Hilda's home. In 2016, he had taken four firearms, including one of the same firearms involved in the instant offenses, and pawned them. In regard to the instant offenses, Hilda testified Emily Sipos told her the defendant stole the guns, and she sold them to her drug dealer. Hilda indicated that after the 2016 incident, she told the defendant she had returned the guns to Muir.


         In assignment of error number two, the defendant argues the evidence was insufficient to support the convictions because Sipos was a drug addict and liar who took the guns and pled guilty to their theft. On appeal, the defendant acknowledges that he admitted taking Sipos to New Orleans to sell the guns in a recorded statement, but he denied stealing the guns. Lastly, the defendant argues he was not guilty as a principal to the theft of the guns because he "only participated in 'transportation and facilitation' after the taking." In cases such as this one, where the defendant raises issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence, before discussing the other issues raised on appeal. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Smith, 2003-0917 (La.App. 1st Cir. 12/31/03), 868 So.2d 794, 798. Accordingly, we will first address the defendant's second assignment of error, which challenges the sufficiency of the State's evidence.

         A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider "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 beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also La. C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Watts, 2014-0429 (La.App. 1st Cir. 11/21/14), 168 So.3d 441, 444, writ denied, 2015-0146 (La. 11/20/15), 180 So.3d 315.

         When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. The facts then established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Watts, 168 So.3d at 444.

         All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. However, the defendant's mere presence at the scene is not enough to "concern" him in the crime. Only those persons who knowingly participate in the planning or execution of a crime may be said to be "concerned" in its commission, thus making them liable as principals. A principal may be connected only to those crimes for which he has the requisite mental state. State v. Neal, 2000-0674 (La. 6/29/01), 796 So.2d 649, 659, cert, denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). However, "[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice's intention." State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam) quoting 2 W. LaFave, A. Scott, Substantive Criminal Law, § 6.7, p. 138 (West 1996); State v. Clay, 2011-1974 (La.App. 1st Cir. 5/3/12), 2012 WL 1564626, at *2, writ denied. 2013-0287 (La. 6/14/13), 118 So.3d 1084.

         Louisiana Revised Statutes 14:67.15, in pertinent part, provides:

A. Theft of a firearm is the misappropriation or taking of a firearm which belongs to another, either without the consent of the other to the misappropriation or taking or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of the firearm is essential.
B. For purposes of this Section, "firearm" means a shotgun or rifle, or a pistol, revolver, or other ...

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