State Of Louisiana v. Michael Young

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 1684

STATE OF LOUISIANA

VERSUS

MICHAEL YOUNG

DATEOFJUDGMENT.
JUL 2 4 2020

ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT
NUMBER 564396, DIVISION A, PARISH OF LAFOURCHE
STATE OF LOUISIANA

HONORABLE JOHN E. LEBLANC, JUDGE

Kristine M. Russell Counsel for Appellee
District Attorney State of Louisiana
Heather Hendrix
Joseph S. Soignet
Assistant District Attorneys
Thibodaux, Louisiana

Holli Ann Herrle- Castillo Counsel for Defendant -Appellant
Marrero, Louisiana Michael Young

BEFORE: McDONALD, THERIOT AND CHUTZ, JJ.

Disposition: CONVICTION AND SENTENCE AFFIRMED.

CHUTZ, I

The defendant, Michael Young, was charged by bill of information with

simple burglary, a violation of La. R.S. 14: 62. He pled not guilty. After a trial by

jury, he was found guilty as charged. The trial court denied the defendant' s

motions for post -verdict judgment of acquittal and new trial and sentenced the

defendant to twelve years imprisonment at hard labor. The defendant now appeals,

assigning as error the sufficiency of the evidence to support his conviction and the

alleged denial of his constitutional right to present a defense. For the following

reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On or about June 13, 2016, around 2: 00 a. m., Bobby LeBlanc, the operations

manager for BJ' s Country Stop stores,' received a call from an alarm monitoring

company, informing him that the alarm was sounding for store number 3, located

at 2846 Bayou Blue Road in Houma, Louisiana, in Lafourche Parish. The alarm

company also alerted the Lafourche Parish Sheriff' s Office ( LPSO) of the

sounding alarm at the store. Mr. LeBlanc, who lived nearby, arrived at the store

within three or four minutes of being notified and observed that one of the glass

doors had been shattered and a security bar had been broken. Mr. LeBlanc waited

for law enforcement to arrive before entering the store.

Lieutenant Trent Duplantis of the LPSO responded to the alarm and entered

the store through the shattered glass door. The store was in disarray, and the cash

register drawer was missing. Lt. Duplantis and Mr. LeBlanc viewed store video

surveillance footage that showed a black male using a bag2 to shatter the glass

door. The black male then entered the store, took the cash register drawer, and

1
According to trial testimony, the LeBlanc family operated a total of four BFs Country Stop
stores owned by Darryl LeBlanc. Bobby LeBlanc and Tracy LeBlanc testified at trial.

2 The bag, which contained a brick, was found in the middle of the store.

2

exited the store. The subject' s hands and face were covered, and he was wearing a

white muscle shirt and black shorts with a wide red stripe outlined in white on each

side.

Tracy LeBlanc, who helped manage the BJ' s Country Stop stores, was also

notified that morning of the burglary at store number 3 and viewed the surveillance

footage. Ms. LeBlanc downloaded the footage from the surveillance system, saved

it on a compact disc, and gave the disc to law enforcement. In an attempt to find

footage of the perpetrator visiting the store before the burglary, 3 Ms. LeBlanc

watched surveillance footage from the day before the burglary, June 12, 2016, for

store number 3. She subsequently began watching footage from the same time

period for store number 1, located across the street from store number 3, but

outside Houma city limits, at 2903 Highway 316 in Gray, Louisiana, in Terrebonne

Parish. She ultimately discovered and downloaded footage from store number 1,

depicting an individual whom she identified as the perpetrator, based on his

matching description, clothing, socks, and shoes. In addition to providing law

enforcement with the surveillance footage and still shots from both stores, Ms.

LeBlanc also gave them the merchant copy of the credit card receipt generated at

6: 56 p.m. for a gas transaction at store number 1 by the person she identified as the

perpetrator.
The first name of the signature on the receipt was clearly readable as

Michael," the last name appeared to start with the letter " Y," and the credit card

was issued under the name Michael T. Young.

Further, Detective Stephanie Belanger of the LPSO, who was assigned to

investigate the offense, determined that the vehicle depicted in the footage at store

number 1, for which the gas was purchased, was registered in the defendant' s

3 Ms. LeBlanc testified that based on her experience from numerous prior incidents, such as
and armed robberies, perpetrators tended to go to the store before they
burglaries, thefts,

committed the crime and often wore the same clothing later worn during the incidents.

3

name.' Detective Belanger viewed the surveillance footage from both stores and

concluded, as did Ms. LeBlanc, that the perpetrator of the burglary was wearing

the " exact same clothing" as the defendant wore the day before at store number 1.

Based on the surveillance footage from both stores, the receipts for the gas

transaction, and the vehicle registration, Detective Belanger obtained a warrant for

the defendant' s arrest for the burglary.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues that the State failed

to present sufficient evidence that he committed the burglary in this case. He

argues that he was convicted because he was a black man who, on the night before

the burglary, wore shorts similar to the ones worn by the perpetrator at the time of

the burglary. The defendant claims that Ms. LeBlanc acknowledged that the shorts

the defendant wore the night before were distinguishable from the shorts that the

perpetrator had worn. He specifically asserts that Ms. LeBlanc testified that one

pair of shorts contained black piping while the other pair did not and that they

differed as to the width of the stripes. The defendant argues that Ms. LeBlanc

could not conclusively testify that the same pair of shorts were shown in each

video. The defendant contends that there was no other evidence linking him to the

burglary, noting that there was no DNA, fingerprints, or physical evidence. The

defendant argues that the perpetrator' s attire was not so unique as to negate a

reasonable probability of the offense being committed by another black man in

Lafourche Parish with similar shorts, a white tank top, and black socks. The

defendant contends that the evidence presented at trial only established that he

pumped gas the evening before the burglary at the store across the street from the

location of the burglary, wearing an outfit that any other number of black men

4 Counsel for the defendant acknowledged at trial in opening and closing remarks and on appeal
that the defendant was at store number 1, on June 12, 2016, and made the gas transaction as
depicted in the surveillance footage and still shots.

11

could have worn. Thus, he argues that the State failed to connect him to the actual

burglary and failed to exclude at least one " probability of innocence."

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, viewing the evidence in the light most

favorable to the prosecution, an appellate court must determine whether any

rational trier -of f-act could have found the essential elements of the crime and the

defendant' s identity as the perpetrator of that 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. Code Crim. P. art. 821( B); State v. Ordodi, 2006- 0207 ( La.

11/ 29/ 06), 946 So.2d 654, 660; State v. Cockerham, 2017- 0535 ( La. App. 1st Cir.

9/ 21/ 17), 231 So. 3d 698, 703, writ denied, 2017- 1802 ( La. 6/ 15/ 18), 245 So. 3d

1035. The Jackson standard of review, incorporated in Article 821, is an objective

standard for testing the overall evidence, both direct and circumstantial, for

reasonable doubt. State v. Legaux, 2019- 0075 ( La. App. 1st Cir. 9/ 27/ 19), 288

So. 3d 791, 794.

When analyzing circumstantial evidence, La. R.S. 15: 438 provides that the

factfinder must be satisfied that the overall evidence excludes every reasonable

hypothesis of innocence. State v. Patorno, 2001- 2585 ( La. App. 1st Cir. 6/ 21/ 02),

822 So. 2d 141, 144. When a case involves circumstantial evidence and the trier -

of -fact reasonably rejects the hypothesis of innocence presented by the defense,

that hypothesis falls, and the defendant is guilty unless there is another hypothesis

that raises a reasonable doubt. State v. Robertson, 2014- 0945 ( La. 6/ 30/ 15), 172

So. 3d 616, 619; State v. Dyson, 2016- 1571 ( La. App. 1st Cir. 6/ 2/ 17), 222 So. 3d

220, 228, writ denied, 2017- 1399 ( La. 6/ 15/ 18), 257 So. 3d 685.

Simple burglary is the unauthorized entering of any dwelling, vehicle,

watercraft, or other structure, movable or immovable, or any cemetery, with the

5

intent to commit a felony or any theft therein, other than as set forth in La. R.S.

14: 60. La. R.S. 14: 62( A). To be guilty of simple burglary, a defendant must have

the specific intent to commit a felony or theft therein at the time of his

unauthorized entry. State v. Godbolt, 2006- 0609 ( La. App. 1st Cir. 11/ 3/ 06), 950

So. 2d 727, 730. Specific criminal intent is defined as the state of mind that exists

when the circumstances indicate that the offender actively desired the prescribed

criminal consequences to follow his act or failure to act. La. R.S. 14: 10( 1).

Though intent is a question of fact, it need not be proven as a fact. It may be

inferred from the circumstances of the transaction. Thus, specific intent may be

proven by direct evidence, such as statements by a defendant, or by inference from

circumstantial evidence, such as a defendant' s actions or facts depicting the

circumstances. Specific intent is an ultimate legal conclusion to be resolved by the

factfinder. State v. Allen, 2005- 1622 ( La. App. 1st Cir. 3/ 29/ 06), 934 So. 2d 146,

152- 53.

The State bears the burden of proving the elements of the offense, along

with the burden of proving the identity of the defendant as the perpetrator. State v.

Draughn, 2005- 1825 ( La. 1/ 17/ 07), 950 So. 2d 583, 593, cert. denied, 552 U.S.

1012, 128 S. Ct. 537, 169 L.Ed.2d 377 ( 2007). When 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. Johnson, 99- 2114 ( La. App. 1st Cir. 12/ 18/ 00), 800

So. 2d 886, 888, writ denied, 2001- 0197 ( La. 12/ 7/ 01), 802 So.2d 641. A positive

identification by only one witness is sufficient to support a conviction. State v.

Weary, 2003- 3067 ( La. 4/ 24/ 06), 931 So. 2d 297, 311, cert. denied, 549 U.S. 1062,

127 S. Ct. 6829 166 L.Ed.2d 531 ( 2006) ( quoting State v. Neal, 2000- 0674 ( La.

6/ 29/ 01), 796 So. 2d 649, 658, cert. denied, 535 U.S. 940, 122 S. Ct. 1323, 152

L.Ed. 2d 231 ( 2002)); State v. Davis, 2001- 3033 ( La. App. 1st Cir. 6/ 21/ 02), 822

C*
1

So. 2d 161, 163. It is the factfinder who weighs the respective credibility of the

witnesses, and this court generally will not second- guess those determinations. See

State v. Hughes, 2005- 0992 ( La. 11/ 29/ 06), 943 So -2d 1047, 1051.

In this case, the State introduced four video clips, which were played for the

jury, and still shots from the surveillance footage taken by cameras positioned at

four different angles. The video clips collectively contain footage of the

perpetrator as he paced outside before entering the store, as he gained entry, as he

was behind the counter removing the cash register drawer, and as he exited through

his point of entry and fled from the store. The subject had what appeared to be

black socks covering his hands, and he used his right hand to break the glass door

and security bar with the bag containing a brick. As the perpetrator fled from the

store with the cash register drawer, he ran towards the Terrebonne Parish line.

After the instant burglary, Ms. LeBlanc watched surveillance footage for

store number 3, attempting to determine if the perpetrator visited the store the day

before the break- in. Since she did not find any footage for store number 3 that

included an individual who fit the description of the perpetrator, Ms. LeBlanc went

across the street to store number 1 and viewed surveillance footage for that store.

At that point, she found the footage of the person who she believed to be the

perpetrator of the burglary at issue. In identifying the individual depicted in the

footage of store number 1 as the perpetrator, Ms. LeBlanc testified that the

individuals had the "[ s] ame description, same clothing, same socks, they were just

on his feet and not his hands, same shorts, same shoes."

On cross- examination, Ms. LeBlanc confirmed that she was able to see that

the perpetrator in the footage from store number 3 was black, but could not see his

face because it was covered, and did not see any jewelry, watch, or tattoos on his

arms. Ms. LeBlanc further confirmed that some of the views of the shorts in the

footage and still photos had visible details that could not be seen from other angles,

7

such as the width of the red stripe on each side and " a very thin black line" around

the white stripe that outlined the red area on the shorts. Ms. LeBlanc was shown

still shots from both stores and asked if she could conclusively state that the shorts

being worn on June 12, 2016, in store number 1, were the same pair of shorts being

worn by the perpetrator on June 13, 2016, in store number 3. She responded, " I

mean it' s different angles, but I mean, if —
I would have got different camera shots

if I would have known it would have went to [ trial] to make sure a hundred -ten

percent."

When Ms. LeBlanc was later re -called by the defense, she was asked to

provide the basis for her identification and stated, " The features, the clothing,

particularly the shorts look the same." She added, " It' s the pattern on the side. It' s

the same coloring, the same — just it looks identical." When asked if there were

any other physical characteristics that she could note, she stated, " The white shirt,

the race of the guy. It just looks like him." When asked what was distinctive

about his complexion, she stated, "[ i] t' s dark."

Detective Belanger confirmed that the surveillance footage of store number

1 showed the defendant using his right hand to sign the credit card receipt for the

gas transaction, just as the perpetrator of the burglary used his right hand to shatter

the glass door with the bagged brick. On cross- examination, Detective Belanger

was similarly questioned as to her conclusion that the person depicted in the

surveillance footage at store number 1 on June 12, 2016, identified as the

defendant, was also the perpetrator of the burglary on June 13, 2016, depicted in

video footage of store number 3. Specifically, she was asked if the identification

was based on the shorts and stated, " The whole outfit, but the shorts were

distinctive, yes." She added, " White shirt, he had the black shorts with the red and

white. In the second video he had black socks on his feet but in the first they were

on his hands." She denied noticing any particular physical characteristics.

The trier -of f-act is free to accept or reject, in whole or in part, the testimony

of any witness. State v. Major, 2019- 0621 ( La. App. 1st Cir. 11/ 15/ 19), 290

So. 3d 1205, 1212. Unless there is internal contradiction or irreconcilable conflict

with the physical evidence, the testimony of a single witness, if believed by the

factfinder, is sufficient to support a factual conclusion. State v. Marshall, 2004-

3139 ( La. 11/ 29/ 06), 943 So. 2d 362, 369, cert. denied, 552 U.S. 905, 128 S. Ct.

2391 169 L.Ed.2d 179 ( 2007). It is not the function of an appellate court to assess

credibility or reweigh the evidence. Appellate review for minimal constitutional

sufficiency of evidence is a limited one restricted by the standard developed in

Jackson. State v. Rosiere, 488 So. 2d 965, 968 ( La. 1986); Godbolt, 950 So. 2d at

730.

Herein, the jury viewed the surveillance footage and still shots from both

stores and did not merely rely on the testimony presented by the store managers

and the officers in this case. The jury apparently rejected the defendant' s

hypothesis of innocence that, although he was observed at store number 1, he did

not commit the burglary that subsequently occurred during the early morning hours

at store number 3, across the street. In reviewing the evidence presented at trial,

including the video surveillance footage and still shots from both stores, we cannot

say that the jurors' determination was irrational under the facts and circumstances

presented to them. See Ordodi, 946 So. 2d at 662. While defense counsel

painstakingly attempted to elicit testimony distinguishing the shorts visible in the

surveillance footage from both stores, the footage and still shots clearly depict

matching attire, including the white shirt and the black, white, and red shorts, and a

matching physical appearance ( i.e., same build, stature, and complexion) such that

there was no reasonable probability of misidentification in this case.

An appellate court errs by substituting its appreciation of the evidence and

credibility of witnesses for that of the factfinder and thereby overturning a verdict

I

on the basis of an exculpatory hypothesis of innocence presented to, and rationally

rejected by, the jury. See State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d

417, 418 ( per curiam). A court of appeal impinges on a factfinder' s discretion

beyond the extent necessary to guarantee the fundamental protection of due

process of law in accepting a hypothesis of innocence that was not unreasonably

rejected by the factfinder. See State v. Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d

698, 703 ( per curiam). After a thorough review of the record, we are convinced

that a rational trier -of f-act, viewing the evidence presented in the light most

favorable to the State, could find that the State proved beyond a reasonable doubt,

and to the exclusion of every reasonable hypothesis of innocence, all of the

elements of simple burglary and the defendant' s identity as the perpetrator.

We find that assignment of error number one lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the defendant argues that the trial court

violated his constitutional right to present a defense by not allowing him to show

his arm tattoos to the jury. He argues that his arm tattoos would have proven to the

jury that he was not the person depicted in the video burglarizing store number 3.

The defendant notes that the trial court ruled that his tattoos were inadmissible

because a foundation had not been laid for their admissibility. The defendant

further notes that the trial court subsequently refused to allow the defense to

present the testimony of two witnesses, who were located by defense counsel after

the trial court' s previous ruling. The defendant argues that the two disallowed

witnesses could have laid a foundation for the display of his tattoos to the jury.

The defendant contends that the proposed testimony of the two witnesses was not

in violation of the rules of discovery or otherwise required to be excluded. In that

regard, the defendant notes that prior to the ruling by the trial court that the

defendant' s tattoos could not be shown to the jury absent a proper foundation, the

10

defense had no idea that it would need to call these witnesses and, therefore, could

not have given the State pretrial notice of their names and dates of birth.

Finally, the defendant argues that the State misinterpreted State v. Pettus,

11- 861 ( La. App. 5th Cir. 5/ 22/ 12), 96 So. 3d 584, 592, writ denied, 2012- 1405

La. 1/ 11/ 13), 106 So. 3d 546. Specifically, the defendant argues that Pettus does

not stand for the proposition that evidence of a tattoo is not relevant unless the

State made the presence of a tattoo at issue in its case -in -chief. In arguing that he

should have been allowed to show the jury his tattoos even though the State' s case-

in -chief did not make the presence of a tattoo an issue at trial, the defendant notes

that a defense is not a rebuttal. The defendant further contends that the proffered

testimony of his two potential witnesses showed that they had known the defendant

since 2015, and that he had visible tattoos covering his body at the time of the

burglary. The defendant argues that because the perpetrator of the burglary in the

video did not have visible tattoos covering his body, the issue of the tattoos became

relevant.
The defendant concludes that, if the jury had been allowed to compare

his arms, covered in tattoos, to the arms of the individual in the video, who " had at

most one single tattoo," the verdict likely would have been different.

The Sixth and Fourteenth Amendments of the United States Constitution and

Article I, § 16 of the Louisiana Constitution guarantee the criminally accused a

meaningful opportunity to present a complete defense. See State v. Blank, 2004-

0204 ( La. 4/ 11/ 07), 955 So. 2d 90, 130, cert. denied, 552 U.S. 994, 128 S. Ct. 494,

169 L.Ed.2d 346 ( 2007). Constitutional guarantees do not assure the defendant the

right to the admissibility of any type of evidence, only that which is deemed

trustworthy and has probative value. State v. Governor, 331 So. 2d 443, 449 ( La.

1976); State v. Magee, 2017- 1217 ( La. App. 1st Cir. 2/ 27/ 18), 243 So. 3d 151,

163, writ denied, 2018- 0509 ( La. 2/ 11/ 19), 263 So. 3d 434.

11

Relevant evidence" is evidence that has any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than without the evidence. La. Code Evid. art. 401. In deciding

the issue of relevancy, the trial judge must determine whether the evidence bears a

rational connection to the fact at issue in the case. State v. Williams, 341 So. 2d

370, 374 ( La. 1976); State v. Harris, 2011- 0779 ( La. App. 1st Cir. 11/ 9/ 11), 79

So. 3d 1037, 1046. Except as limited by the Louisiana Code of Evidence and other

laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible.

La. Code Evid. art. 402. Although relevant, evidence may nonetheless be excluded

if the probative value is substantially outweighed by its prejudicial effect. See La.

Code Evid. art. 403.

Thus, the right to present a defense does not require the trial court to admit

irrelevant evidence or evidence with such little probative value that it is

substantially outweighed by other legitimate considerations. State v. Nixon, 2017-

1582 ( La. App. 1st Cir. 4/ 13/ 18), 250 So. 3d 273, 280, writ denied, 2018- 0770 ( La.

11/ 14/ 18), 256 So.3d 290 ( citing State v. Coleman, 2014- 0402 ( La. 2/ 26/ 16), 188

So. 3d 174, 197, cert. denied, U.S. , 137 S. Ct. 153, 196 L.Ed.2d 116

2016)). The trial court is vested with broad discretion in determining whether

evidence is relevant or, even if relevant, has such little probative value that it is

substantially outweighed by other considerations. See La. Code Evid. art. 403. A

trial judge' s determination regarding the relevancy and admissibility of evidence

will not be overturned on appeal absent a clear abuse of discretion. State v.

Thompson, 2015- 1518 ( La. App. 1st Cir. 4/ 15/ 16), 2016 WL 1535160, at * 6, writ

denied, 2016- 762 ( La. 4/ 13/ 17), 216 So. 3d 793.

Herein, outside the presence of the jury, in anticipation of the defense

requesting to allow the defendant to display his tattoos to the jury, the State argued

that the defendant' s tattoos had no bearing on the case. The State noted that the

12

defendant already admitted to being featured in the surveillance footage of the gas

transaction and noted that the admitted footage of him did not show any markings

or tattoos on his arms. The State argued that the defendant could have gotten

tattoos after the offense. In response, defense counsel noted that the defendant has

a dark complexion and that his tattoos do not show up, noting that they attempted

to enhance and enlarge photos and were unable to get a good picture of his tattoos

because of the color of his skin. At that point, the trial court sustained the State' s

anticipatory objection, noting that procedurally, there was an issue with the

defendant " doing anything" during the State' s case -in -chief. The trial court further

found that the defendant' s tattoos at the time of the trial would not be relevant to

his condition at the time of the offense. The court concluded that it would be for

the jury to compare the individual depicted in the two sets of surveillance footage

from the stores captured within a twenty -four-hour period. Finally, the trial court

noted concern as to whether the defendant would be subject to cross- examination,

should he display his tattoos as evidence.

In a later conference in chambers, defense counsel presented the trial court

with a Louisiana Supreme Court case, State v. Martin, 519 So.2d 87 ( La. 1988).

In Martin, the defendant was convicted of aggravated rape, aggravated crime

against nature, and aggravated battery. The primary issue in the case was whether

the defendant was the rapist. The victim testified that the man who attacked her

had a tattoo on his right upper arm that " said something like ` Angela,"' and " had

some loops in it." Martin, 519 So. 2d at 87. In response to this testimony, the

defendant asked to be permitted to display his arms to the jury, for the apparent

purpose of demonstrating that he did not have a tattoo that matched the victim' s

description, but that he did have noticeable tattoos on his arms of a type that had

not been observed by the victim on her assailant. The trial judge ruled that the

defendant could display his arms to the jury, but that if he did so, the State would

13

be permitted to cross- examine him on the origin of any tattoos that were on his

arms, and on whether he had ever had any tattoos removed. Rather than exposing

the defendant to cross- examination in this fashion, defense counsel opted not to

have his client display his arms to the jury. Martin, 519 So. 2d at 87.

On appeal, this court found that while it is " well settled" that an identifying

tattoo on a defendant' s body is " demonstrative rather than testimonial evidence,"

such evidence is only admissible when it is material. Noting that the trial judge is

vested with wide discretion in determining whether evidence is relevant, this court

concluded that the court' s ruling on the tattoo issue was not an abuse of discretion:

Because body tatoos [ sic] are subject to alteration, the trial court properly limited

their display absent some foundation as to origin." State v. Martin, 509 So. 2d

160, 166 ( La. App. 1 st Cir.), reversed, 519 So. 2d 87 ( La. 1987).

The Louisiana Supreme Court reversed, finding that the trial judge erred in

holding that defendant would be subject to " limited" cross- examination if he chose

to display his tattoos to the jury. The Court found that such a display would not

have constituted testimony by the defendant, and, thus, there would have been no

waiver of his privilege against self-incrimination. Martin, 519 So. 2d at 91- 92.

The Court indicated that this court correctly noted that a tattoo display by the

defendant would constitute demonstrative, rather than testimonial evidence.

However, the Court found that the victim' s testimony alone constituted a sufficient

evidentiary foundation to allow the defendant to display his arms to the jury. The

Court further noted that various defense witnesses testified that, to their

knowledge, Martin did not have a tattoo that matched or was similar to the one

described by the victim, that he had never had a tattoo removed, that he had a

number of tattoos on his person, and that he had obtained those tattoos years ago.

The Court found that the additional testimony further established a relevance

foundation for the proposed tattoo display in that case. Martin, 519 So. 2d at 92.

14

In the instant case, in response to defense counsel' s reliance on Martin, the

State argued that the facts in Pettus were more pertinent to the facts present herein.

In Pettus, the defendant was convicted of simple robbery. Identification was the

primary issue in Pettus because no one positively identified the defendant as the

robber, and the case against him was circumstantial. Therefore, as the appellate

court noted, it would have been relevant if he had a tattoo on his right forearm at

the time of the robbery that was not, but could have been, seen by the victim

during the robbery. Pettus, 96 So. 3d at 592.

In Pettus, comparing the facts therein to the facts before the Louisiana

Supreme Court in Martin, the Fifth Circuit Court of Appeal found that the trial

judge did not err by denying Pettus' request to show his tattoo to the jury, because,

unlike Martin, the defense did not lay the proper foundation. The Pettus court

noted that there was no evidence introduced at trial that showed Pettus had the

tattoo in question at the time of the robbery, or that the tattoo would have been

reasonably visible or noticeable by the victim. Pettus, 96 So. 3d at 592- 93. The

detective therein testified at trial that he was aware that Pettus had a tattoo of a

phrase on his upper arm, although he did not take note of or observe any tattoo on

his forearms. However, none of the witnesses, including the detective, testified as

to what that tattoo on his upper arm depicted or said, when Pettus had acquired that

tattoo, or whether he had it at the time of the robbery. Pettus, 96 So. 3d at 593.

Unlike Martin, the victim in Pettus did not put the existence of the tattoo at issue

nor did Pettus demonstrate, at trial, the relevance of the tattoo in connection with

his identity as the perpetrator. The victim therein testified that she did not see any

identifying marks on the suspect such as tattoos or cuts. Further, it was never

proven whether the tattoo would have been reasonably visible to or noticeable by

her. Thus, the appellate court found that the trial court properly excluded the tattoo

evidence. Pettus, 96 So. 3d at 593- 94.

15

In this case, the trial court agreed with the State' s position and found Pettus

was applicable to the facts presented herein. The trial court later stated:

This is a case that' s unusual because there' s not a victim in here
that' s identifying the defendant by particular markings or tattoos.
This is an entirely recorded incident where the jury can see
exactly what happened and exactly who did it, and they can
compare a second set of images for distinction between the two
individuals. It' s their determination of the facts. The argument of
counsel is not evidence. [ Emphasis added.]

Thus, in denying the defendant' s request to display his tattoos to the jury, the trial

court emphasized the fact that the jury had the opportunity to view the defendant in

the second surveillance video from store number 1 and to compare him to the

perpetrator shown in the video of the burglary of store number 3. The defendant' s

arms were clearly visible in the second video, allowing the jury to observe any

similarities or dissimilarities between the defendant and the perpetrator.

The defendant filed a supervisory writ application with this court seeking

review of the trial court' s ruling, which this court denied. See State v. Young,

2018- 1018 ( La. App. 1 st Cir. 7/ 26/ 18) ( unpublished writ action).' The trial court

allowed the defendant to proffer the testimony of two witnesses, who both testified

that they knew the defendant before the offense and that he had tattoos all over his

body. However, the witnesses were not shown any of the surveillance footage or

questioned as to whether the defendant' s tattoos would have been visible on the

video of the burglary. Moreover, one of the witnesses, Christshonda Norman,

confirmed that the defendant' s tattoos were not in color. She specifically stated,

They' re all dark. They' re all black."

5 Although a pretrial determination does not absolutely preclude a different decision on appeal,
judicial efficiency demands that this court accord great deference to its pretrial decisions unless it
is apparent, in light of a subsequent trial record, that the determination was patently erroneous
and produced an unjust result. See State v. Humphrey, 412 So. 2d 507, 523 ( La. 1982) ( on
rehearing); State v. Patterson, 2008- 0416 ( La. App. 1st Cir. 9/ 26/ 08), 995 So. 2d 38, 40. The
record before us on appeal, as discussed herein, does not show that this court' s previous ruling
was patently erroneous or produced an unjust result.

16

We note that during her trial testimony, Ms. LeBlanc confirmed that she did

not see any jewelry, watch, or tattoos on the arms of the perpetrator in the still

photos. When asked again about tattoos or physical markings on his arms from a

different view, Ms. LeBlanc responded, " I see something on his right arm. I don' t

know if it' s on him or just something with the camera." Regarding the possibility

of distinctive characteristics visible in the still shots, she later stated, " If you' re

referring to tattoos, it' s on the video footage. You can see something, like an

outline." Detective Belanger denied seeing any tattoos in her review of the video

footage.

Further, we note that, while the defendant proffered the testimony of the two

witnesses in an attempt to lay a foundation for the display of his tattoos, he did not

proffer any photos of his arms such that this court could view the tattoos that he

wished to display to the jury. See La. Code Evid. art. 103( A)(2). Moreover, we

agree with the trial court' s assessment in this case. We find that the trial court did

not abuse its discretion in denying the defendant' s request to display the tattoos on

his arms to the jury, particularly since the jury had the opportunity to observe the

defendant' s arms in the surveillance video from store number 1. Accordingly, we

find no violation of the defendant' s constitutional right to present a defense in this

case. Thus, assignment of error number two is without merit.

CONVICTION AND SENTENCE AFFIRMED.

17