State of Louisiana v. Daniel James Broussard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1225

STATE OF LOUISIANA

VERSUS

DANIEL JAMES BROUSSARD

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 117904
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Michael Harson
District Attorney
J. N. Prather, Jr.
Assistant District Attorney
Post Office Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
COUNSEL FOR DEFENDANT/APPELLANT:
Daniel James Broussard

AMY, Judge.

The defendant was convicted of the unauthorized use of a motor vehicle. He

was sentenced to serve seven years imprisonment at hard labor. The defendant now

appeals, challenging the sufficiency of the evidence for his conviction. He also

argues that the sentence imposed is excessive. For the following reasons, we affirm

the defendant’s conviction and sentence.

Factual and Procedural Background

On June 19, 2007, Corporal Randall Leger of the Lafayette Police Department,

took a report from Matt Braden concerning a stolen vehicle that was owned by Mr.

Braden’s friend, James Gillaspie. Corporal Leger communicated the information

about the reportedly stolen vehicle to the police department, and the police dispatch

communications department contacted the owner of the stolen vehicle to confirm that

he owned the vehicle and wanted to file a stolen vehicle report. Corporal Leger

entered information about that vehicle into the National Crime Information Center so

that, if an officer anywhere in the United States ran the vehicle’s license plate, the

system would show that the vehicle was stolen.

Corporal Jason Herpin, an officer with the Lafayette Police Department’s

Action Unit, testified that on June 26, 2007, he was on patrol when he observed a tan

Dodge Intrepid at a stop sign and recognized it as the make and model of the

reportedly stolen vehicle. He stated that, as the vehicle turned at the stop sign, he

observed “a black male wearing a black muscle shirt” driving the vehicle. Corporal

Herpin then retrieved the license plate number off the vehicle, contacted another

officer with that information, and learned that the vehicle was stolen. He radioed to

other officers in the area with information about the direction the vehicle was

traveling.

Corporal Tom Mercier testified that he received the call from Corporal Herpin

and began to search for the vehicle. Within five to seven minutes of receiving that

call, Corporal Mercier found the vehicle in the rear parking lot of a church. He

further testified that when he pulled into the church parking lot and exited his police

car, the defendant “quickly walked into the rear of a residence that butts up against

the - - where the church is located at.” When asked whether he observed the

defendant go inside the residence, Corporal Mercier replied “Negative. In my

opinion, it - - it appeared he walked to the back door. It appeared he - - like he was

making it look like he was attempting to knock.” He further testified that he made

contact with the defendant, detained him, and escorted him to the area where the

vehicle was located. By this time, Corporal Herpin arrived on the scene and

identified the defendant as the driver he had seen in the stolen vehicle. The defendant

told the officers he was driving a blue Dodge Intrepid, also parked in the lot, which

was registered to him. Corporal Herpin testified that he grabbed the muffler of the

blue vehicle, and it was cold. He stated that when he tried to grab the muffler of the

tan vehicle, it was too hot for him to touch.

The defendant was arrested and later charged by bill of information with

unauthorized use of a vehicle, a violation of La.R.S. 14:68.4. On June 23, 2009, a

unanimous jury found the defendant guilty as charged. On September 22, 2009, the

trial court sentenced the defendant to serve seven years imprisonment at hard labor.

The defendant now appeals, asserting that there is insufficient evidence to

support his conviction because the owner of the vehicle never testified or swore under

oath that the car was taken without his authority. He also argues that his sentence is

excessive.

2

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there are

no errors patent.

Sufficiency of the Evidence

The defendant argues the evidence was insufficient to prove his guilt beyond

a reasonable doubt because the owner never testified or swore under oath that the

vehicle was taken without his authority. The standard of review in a sufficiency of

the evidence claim is “whether, viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found proof beyond a reasonable

doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11,

p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279

(2007), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v.

Captville, 448 So.2d 676, 678 (La.1984). “The essential elements of the crime of

unauthorized use of a motor vehicle, La.R.S. 14:68.4 are: (1) the intentional taking

or use (2) of a motor vehicle (3) which belongs to another (4) without the other’s

consent or by fraud.” State v. Rios, 44,132, p. 4 (La.App. 2 Cir. 4/8/09), 7 So.3d 832,

834. After a review of the record, we find that the evidence presented at trial was

sufficient to support the jury’s guilty verdict.

Corporal Leger received the stolen vehicle report from Matt Braden on June

20, 2007, almost a week prior to the defendant’s arrest. He testified that James

Gillaspie, the owner of the vehicle and friend of Mr. Braden, was contacted to

confirm Mr. Braden’s facts given in the report. Dispatch communications verified

3

the vehicle belonged to Mr. Gillaspie, and verified that Mr. Gillaspie wanted to file

a stolen vehicle report. The defendant did not object to this testimony or controvert

it in any manner. Hearsay evidence admitted without objection becomes substantive

evidence. State v. Allen, 03-2418 (La. 6/29/05), 913 So.2d 788. Here, while Mr.

Gillaspie himself did not testify, the undisputed testimony showed the unauthorized

taking of his vehicle and, thus, provided evidence for the jury to consider.

The jury could also have relied on other evidence to reasonably find that the

defendant was guilty beyond a reasonable doubt. According to Corporal Herpin’s

testimony, the defendant was dressed the same way as the man he saw in the stolen

vehicle. While the defendant said he had been driving the blue Intrepid, Corporal

Herpin testified that its muffler was cool. He explained that, on the other hand, the

stolen vehicle’s muffler was too hot to touch, which he concluded indicated “that the

blue car hadn’t been moved in a while and the tan had been - - was being driven by

someone.” Also, Corporal Herpin testified that after arresting the defendant and

placing him in the back of his police car, the defendant asked him to turn off his cell

phone. When he went to turn off the phone, Corporal Herpin observed the nickname

“Double D” on the phone’s screen. According to him, this nickname on the

defendant’s cell phone was the same nickname as that of a man reported to police to

be driving the stolen vehicle the previous day.

Accordingly, we find that the evidence was sufficient to prove the defendant’s

guilt beyond a reasonable doubt, and therefore, his conviction is affirmed.

This assignment lacks merit.

4

Excessiveness of Sentence

The defendant also argues that his sentence of seven years imprisonment at

hard labor is excessive. Louisiana Code of Criminal Procedure Article 881.1(E)

requires a defendant to make or file a motion to reconsider his sentence within thirty

days of imposition of the sentence. A defendant who fails to make or file such a

motion is precluded from raising any objection to the sentence on appeal. See

La.Code Crim.P. art. 881.2; State v. Cornwell, 08-44 (La.App. 3 Cir. 4/30/08), 982

So.2d 287. The defendant here did not make or file a motion to reconsider his

sentence in the trial court. Nevertheless, we will review the defendant’s argument as

a bare claim of excessiveness. State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986

So.2d 682.

This court has set out a standard to be used in reviewing excessive sentence

claims:

La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 [p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ
denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question
is whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519
U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

5

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

03-562 (La. 5/30/03), 845 So.2d 1061.

At sentencing, the trial court indicated that it reviewed the factors of La.Code

Crim.P. art. 894.1 and the pre-sentence investigation report. The record indicates that

the trial court specifically reviewed the defendant’s criminal history. The trial court

noted the defendant had several prior felony convictions, including: distribution of

counterfeit drugs, possession with intent to distribute cocaine, and driving while

intoxicated. Further, the trial court noted that the defendant also had at least eleven

misdemeanor convictions, had previously been placed on probation, and had that

probation revoked. Also, on the day the defendant was sentenced in this case, he was

additionally sentenced to six months in the parish jail for violation of a protective

order and six months in the parish jail for resisting an officer. These sentences are

to run concurrently with each other, but consecutively to the defendant’s sentence in

this case. He was also sentenced that same day to imprisonment at hard labor for

three years, for the offense of simple escape, to run consecutively to all other

sentences.

6

The defendant could have received a sentence of imprisonment with or without

hard labor for up to ten years and/or a five thousand dollar fine. La.R.S. 14:68.4. The

trial court sentenced the defendant to seven years imprisonment at hard labor which

is in the mid to upper range of his possible sentence. While the defendant was not

charged as a habitual offender, as a third felony offender, the defendant could have

been subjected to imprisonment for as long as twenty years for this offense. See

La.R.S. 14:68.4 and La.R.S. 15:529.1.

In light of these factors, we conclude that the defendant’s sentence is not

excessive. Accordingly, the defendant’s sentence is affirmed.

This assignment lacks merit.

DECREE

For the forgoing reasons, the defendant’s conviction and sentence for the

unauthorized use of a vehicle is affirmed.

AFFIRMED.

7