State of Louisiana v. Lawrence Kivin Nixon

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1332

STATE OF LOUISIANA

VERSUS

LAWRENCE KIVIN NIXON

**********

APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR760-08-3
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Billy Howard Ezell, and David E. Chatelain,*
Judges.

AFFIRMED.

Chatelain, J., concurs and assigns written reasons.

Michael Cade Cassidy
District Attorney - Thirty-first Judicial District Court
P. O. Box 1388
Jennings, LA 70546
(337) 824-1893
Counsel for Plaintiff Appellee:
State of Louisiana

*Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

William Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
Counsel for Defendant/Appellant:
Lawrence Kivin Nixon

Kevin D. Millican
Jennings City Prosecutor
P. O. Box 1111
Jennings, LA 70546
(337) 824-8300
Counsel for Appellee:
State of Louisiana

Lawrence Kivin Nixon
Jackson Parish Corr Center
287 Industrial Dr. - Dorm P
Jonesboro, LA 71251
Counsel for Defendant/Appellant:
Lawrence Kivin Nixon

SAUNDERS, Judge.

The Defendant, Lawrence Kivin Nixon, was charged by bill of information

filed on October 22, 2008, with simple burglary, in violation of La.R.S. 14:62. On

October 27, 2008, the Defendant entered a plea of not guilty. Trial by jury

commenced on March 24, 2009, and the Defendant was found guilty as charged on

March 25, 2009. On May 18, 2009, the Defendant was sentenced to six years at hard

labor. An oral motion for reconsideration of sentence was made and denied.

A Motion for Appeal was filed on May 19, 2009, and subsequently granted.

The Defendant is now before this court asserting two assignments of error filed by his

counsel. Therein, he contends there was insufficient evidence to prove he committed

simple burglary beyond a reasonable doubt and the sentence imposed is excessive.

We find these assignments of error lack merit.

The Defendant also asserts eight pro se assignments of error. Therein, the

Defendant contends there was no probable cause to charge him with simple burglary,

the evidence was insufficient to support his conviction, trial counsel was ineffective,

his right to a fair trial by a jury of his peers was prejudiced, the jury instructions were

improper, the trial court erred in denying his motion for new trial, his police

complaint was improperly withheld, and he was sent fifty percent of the transcript in

this matter. We find that the evidence was sufficient to support the Defendant’s

conviction. Claims of ineffective assistance of counsel lack merit. The assignments

of error regarding the jury makeup, jury instructions, and the motion for new trial will

not be considered. Additionally, the assignments of error in which the Defendant

asserts the police report was improperly withheld and he received fifty percent of the

transcript lack merit.

FACTS:

The Defendant was convicted of burglarizing the home of Wendell Davis on June

4, 2008.

ASSIGNMENT OF ERROR NUMBER ONE (COUNSEL):

In his first assignment of error, the Defendant contends there is insufficient

evidence to prove he committed simple burglary beyond a reasonable doubt. We find

this assignment of error lacks merit.

In State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897
So.2d 900, 902, this court stated:

With regard to sufficiency of the evidence, this court set
forth as follows in State v. Lambert, 97-64, pp. 4-5
(La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27:

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 (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. Therefore, the appellate court
should not second-guess the credibility
determination of the trier of fact beyond the
sufficiency evaluations under the Jackson
standard of review. See King, 436 So.2d 559,
citing State v. Richardson, 425 So.2d 1228
(La.1983).

In order for the State to obtain a conviction, it must
prove the elements of the crime beyond a reasonable doubt.
In order for this court to affirm a conviction, the record
must reflect that the State has satisfied this burden of
proving the elements of the crime beyond a reasonable
doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir.
5/7/97), 695 So.2d 1367.

2

The Defendant was convicted of simple burglary, in violation of
La.R.S. 14:62 which states, in pertinent part, “Simple burglary is the
unauthorized entering of any dwelling, vehicle, watercraft, or other
structure, movable or immovable, or any cemetery, with the intent to
commit a felony or any theft therein, other than as set forth in R.S.
14:60.” To find the Defendant guilty of simple burglary, the State had
to prove beyond a reasonable doubt that the Defendant, one, entered the
subject structure without authorization, and two, entered it with the
intent to commit a felony or theft therein.

State v. Tassin, 08-367, pp. 2-3 (La.App. 3 Cir. 11/5/08), 997 So.2d 750, 751-52.

The requisite intent required by LSA-R.S. 14:62 is specific intent. State
v. Chirlow, 99-142 (La.App. 5 Cir. 6/1/99), 738 So.2d 679. Specific
criminal intent exists “when the circumstances indicate that the offender
actively desired the prescribed criminal consequences to follow his act
or failure to act.” LSA-R.S. 14:10. Specific intent is a state of mind
and, as such, need not be proven as a fact, but may be inferred from the
circumstances and actions of the accused. State v. Graham, 420 So.2d
1126 (La.1982). The determination of whether the requisite intent is
present in a criminal case is for the trier of fact, and a review of the
correctness of this determination is to be guided by the Jackson
standard. State v. Huizar, 414 So.2d 741 (La.1982); State v. Chirlow,
supra.

State v. Petty, 99-1307, p. 3 (La.App. 5 Cir. 4/12/00), 759 So.2d 946, 949, writ

denied, 00-1718 (La. 3/16/01), 787 So.2d 301.

Patrolman Lori Touchet testified that Wendell Davis filed a complaint with the

Jennings Police Department in June 2008. In that complaint, he alleged that the

Defendant broke into his residence and took an air conditioner, a television, and

several DVDs.

Detective Steven Gauthier testified that in August 2008, he went to Davis’

residence. At that time, Davis informed him that a thirty-seven-inch plasma

television, an air conditioner, and several DVDs had been taken from his residence.

Detective Gauthier then located Joyce Duhon and Morris Sinegal and took statements

from them.

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Detective Gauthier testified that Chris Broussard was listed on a report as a

possible suspect. However, the witnesses did not see him at the residence. Further,

Buck Achane was listed as a suspect, as information indicated he was at the Davis

residence prior to the Defendant and had stolen the air conditioner. Detective

Gauthier had not located Achane at the time of trial.

Detective Gauthier further testified that Duhon told him that an air conditioner

was taken to the home of Morris Sinegal. However, Sinegal told Detective Gauthier

that Achane had an air conditioner, but Sinegal never saw it. Detective Gauthier did

not check the Defendant’s residence for the items at issue during his investigation of

the matter. However, in an unrelated matter, Detective Gauthier executed a search

warrant at the homes of the Defendant and Shannon Broussard and saw none of the

items taken from Davis’ residence.

Wendell Davis testified that he and his mother lived in the residence at issue

in Jennings, which was rented by his mother. Davis testified that he spent one to two

days a week in Jennings and that he spent the remainder of his time in Leesville with

a friend. On the date at issue, he was in Leesville and his mother was in Tacoma,

Washington, caring for her sick sister.

When Davis returned to Jennings, he encountered Joyce Edwards Duhon, who

asked him if he had moved out of the Jennings residence. Duhon then told him that

she had seen people, including the Defendant, inside the residence “hauling stuff out

of there like they was [sic] having a garage sale.” Davis went to the residence and

discovered that most of his belongings were missing. More particularly, someone had

taken a thirty-seven-inch plasma television, a DVD player, approximately 150 to 200

movies, some cologne, and various nicknacks. Davis testified that the television,

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DVD player, and movies belonged to him. Davis additionally testified that he did not

give anyone permission to enter the residence or take the items that were missing.

Furthermore, a no trespass sign was posted in the yard.

After Davis discovered that someone had removed items from the residence,

he confronted the Defendant. Davis did not recover any of the missing items from the

Defendant. Davis then filed a complaint with the Jennings Police Department. The

day following the burglary, Davis recovered his portable DVD player from Achane.

Davis testified that the Defendant had been at the residence approximately one

or two times two weeks to a month prior to the burglary. The purpose of those visits

was to mow the grass and clean leaves off the roof.

Joyce Edwards Duhon testified that she went to school with the Defendant and

had known him for a “long while.” She then made an in-court identification of the

Defendant.

Duhon testified that on June 4, 2008, the bedroom light in the residence at issue

was on and she saw Shannon Broussard, the Defendant’s girlfriend, go through the

window of the residence. Duhon further testified that it was not unusual to see

someone going through the window of the residence, as her friend had previously

lived in the residence and entered the residence through the window. There was no

air conditioner in any of the windows at the time Broussard entered the residence.

However, Duhon had seen an air conditioner in one of the windows earlier that day.

According to Duhon, once Broussard was inside the residence, she turned on

the living room light and picked up items and put them in a bag. Duhon testified that

Broussard was pretending that she was cleaning up. At this time, Duhon was walking

down the street. Duhon testified that she spoke to Broussard, who said she was

5

cleaning out the residence, as the previous residents had moved out and she was

going to move in.

Duhon was questioned about the Defendant as follows:

Q Okay. At what point did you see Mr. - - - did you ever see Mr. Nixon
in that residence?

A Other than going in, speaking with her, and grabbing the big black
trash bag, and riding off on the bicycle with it.

Q Okay. So you saw Mr. Nixon in the home?

A Yes, sir.

Q Okay. Did you see him physically pick up a bag, a trash bag?

A Yes, sir.

Duhon went on to testify that the Defendant then left the residence on a bicycle,

which he was having a hard time riding because of the bag. Duhon claimed to know

that there were DVDs inside the bag.

Duhon testified that there was no one with Broussard and the Defendant when

she saw them. However, if someone was in the bathroom, she would not have known.

Additionally, Duhon did not see Achane at the residence. Duhon testified that it was

not possible that she mistook the Defendant for Achane, as Achane was very light

skinned and the Defendant was dark. Further, Duhon had no doubt that the man she

saw was the Defendant. Duhon further testified that the Defendant waved at her.

These events occurred after midnight. However, there was a street light.

Duhon saw Davis the following day and asked if he was moving out of the

residence. Davis later informed Duhon of what items were missing from the

residence, and Duhon told Davis that she saw Achane at Sinegal’s residence and

Achane had brought an air conditioner and portable DVD player with him. Duhon

6

saw Achane and Sinegal prior to her seeing Broussard and the Defendant at Davis’s

residence.

In Duhon’s statement to police, she indicated the Defendant took a television

from Davis’ residence. However, at trial, she did not know if the item was a

television. She testified that it could have been a computer.

Based on this testimony, the Defendant was convicted of simple burglary. He

argues the evidence was not sufficient to support his conviction. The Defendant

contends Duhon’s testimony did not establish that he entered the residence. The

Defendant further argues that the State failed to negate every reasonable possibility

of misidentification. The Defendant notes that Duhon observed the burglary at

midnight aided only by a street light and that her opportunity to observe the person

on the bicycle was limited in time. The Defendant also argues that the events that

occurred after the burglary lend credence to his claim that Duhon wrongly identified

him.

In support of the argument that he was misidentified, the Defendant further

notes that Davis confronted him after the burglary and none of Davis’ property was

returned by him. However, Achane brought a DVD player and air conditioner to

Sinegal’s residence. Additionally, Duhon saw Achane at Davis’ residence before the

burglary. Further, Detective Gauthier admitted it was a possibility that Achane might

have stolen the air conditioner before Broussard arrived.

The Defendant also argues that the State failed to prove he had the specific

intent to commit a theft in the residence. He asserts the person on the bicycle

received a trash bag from Broussard and that person would likely have been told by

7

Broussard that she was cleaning the house in preparation to move in and thought he

was disposing of abandoned or discarded items.

The State argues that Duhon’s testimony proved the Defendant entered the

residence. Further, the Defendant’s argument fails to consider the definition of

principal as defined in La.R.S. 14:24 as “[a]ll 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.” The State argues that regardless of

whether the Defendant stepped into the residence, it is clear that he was a principal

to the crime.

The State then asserts that Duhon’s identification of the Defendant was

sufficient, as she testified that she had known the Defendant since they were children

and considered him a friend, she identified him in court, and repeatedly testified that

he was the person inside the residence. Duhon further testified that there were several

lights on inside the residence and there was a streetlight in the area.

The State asserts that the testimony of Davis and Duhon established all

elements of the offense of simple burglary. Thus, the Defendant’s conviction should

be affirmed.

The State was required to prove the Defendant, one, entered the residence

without authorization, and two, entered it with the intent to commit a felony or theft

therein.

We find that the Defendant’s assertion that Duhon’s testimony did not prove

he entered the residence is incorrect. Duhon testified that she went to school with the

Defendant, made an in-court identification of him, and testified that the Defendant

8

was the person she saw enter the residence at issue. Thus, the State proved the

Defendant entered the residence. Further, Davis testified the Defendant did not have

permission to enter the residence and there was a no trespassing sign in the yard.

Thus, the jury could have found that the State proved the Defendant’s entry was

without authorization.

Duhon further testified that Broussard entered the residence through a window,

placed items in a bag, and the Defendant entered the residence, took the bag from

Broussard, and rode away on his bicycle. Based on this evidence, we find that the

jury could infer that the Defendant had the specific intent to commit a felony or a

theft upon entering the residence. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO (COUNSEL):

In his second assignment of error, the Defendant contends the sentence

imposed is excessive for this offender and this offense. We do not agree.

In brief to this court, the Defendant asserts the trial court failed to adequately

consider several mitigating factors, including the fact that he obtained his GED, had

taken college courses, he had no juvenile record, his prior conviction was for a non-

violent felony, he is thirty-four years old, has five children under the age of

seventeen, he had a drug and alcohol problem, and the Victim did not want the

Defendant to receive jail time. The Defendant then asserts that, given the lack of

credible evidence and the number of mitigating factors present, the sentence imposed

is excessive. Accordingly, he alleges the sentence imposed should be vacated and set

aside and the matter remanded for resentencing.

At the sentencing hearing, defense counsel made an oral motion for

reconsideration of sentence asserting the Defendant’s sentence was excessive and

9

argued that the Defendant should receive a probated sentence because this was only

his second conviction, both being non-violent offenses, and the Victim requested that

the Defendant receive a probated sentence and treatment for his drug problem.

We will consider only those mitigating factors that were set forth by defense

counsel when he moved for reconsideration of sentence. See La.Code Crim.P. art.

881.1(E); Uniform Rules—Courts of Appeal, Rule 1-3; State v. Hebert, 08-542

(La.App. 3 Cir. 11/5/08), 996 So.2d 688.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247,

250 (alteration in original), as follows:

A sentence which falls within the statutory limits
may be excessive under certain circumstances. To
constitute an excessive sentence, this Court must find that
the penalty is so grossly disproportionate to the severity of
the crime as to shock our sense of justice or that the
sentence makes no reasonable contribution to acceptable
penal goals and[,] therefore, is nothing more than the
needless imposition of pain and suffering. The trial judge
has broad discretion, and a reviewing court may not set
sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158,
1167 (citations omitted).

In 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 (citations
omitted), this court discussed the factors it would consider in order to
determine whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes
no meaningful contribution to acceptable penal goals, 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.
While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that

10

sentences must be individualized to the particular offender
and to the particular offense committed.” 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.”

The Defendant was convicted of simple burglary. “Whoever commits the

crime of simple burglary shall be fined not more than two thousand dollars,

imprisoned with or without hard labor for not more than twelve years, or both.”

La.R.S. 14:62(B). The Defendant was sentenced to serve six years at hard labor.

At the time of sentencing, the trial court stated:

The Pre-Sentence Investigation indicates that you are thirty-four
(34) years of age, born on February 15th, 1971. You are currently single,
having never been married. You have five (5) children, ranging in ages
from seventeen (17) to fourteen (14). You attended Jennings High
School but quit during your senior year. You later obtained your GED.
You attended Trinity Valley -- Valley Community College in Texas for
one (1) semester and the Pearl River Community College in Mississippi
for three (3) semesters, but did not obtain a degree. You returned home
and started working for Holiday Inn as a maintenance man, and then you
worked for three (3) years for Otis Landry performing lawn care. You
also worked for Moncla Drilling for approximately four (4) months as
a floor hand, and your last employment was with Sonic Drive Inn for
three (3) months as a cook. You have not been employed since 2005.
You admitted to using alcohol, marijuana, and cocaine since the age of
nineteen (19). You began substance abuse treatment with Jeff Davis
Addictive Disorders Clinic, but you do not know if you completed the
program.

The Pre-Sentence Investigation states that you do not have a
juvenile criminal record. You have several criminal charges in youradult
criminal history, beginning in 1992. You were convicted of simple
battery on November 1st, 1993, and was fined one hundred dollars
($100.00). And you were arrested several times between 1995 and 2006
for various crimes, including illegal possession of stolen things, simple
burglary, theft, forcible rape, battery, and murder; however, these
charges were all eventually dismissed. On March 17th, 2003, you were
found guilty of simple burglary of an inhabited dwelling and was given
a sentence of two (2) years of supervised probation. However, on
January the 3rd, 2005, your probation was revoked, and you were
sentenced to serve three (3) years with the Department of Corrections.
That was suspended, and you were placed on two (2) years of probation.

11

Your probation was terminated unsatisfactorily on January 29th, 2007.
In addition to your current conviction for simple burglary, you also have
pending charges of simple burglary and possession of stolen things in
Jeff Davis Parish.

....

In reviewing the Pre-Sentence Investigation, the Court takes note
of the fact that you are thirty-four (34) years of age, and that you have
five (5) children. This has been taken into consideration in mitigating
against imposition of the maximum sentence in this matter. However,
the Court can find no other mitigating factors.

Your involvement in criminal activity -- activity demonstrates to
this Court you cannot live in society, and that this community must be
protected from you. You are certainly in need of correctional treatment
in a custodial environment for a significant period of time. Anything
would deprecate -- anything less would deprecate from the seriousness
of your offense, would not promote -- would not promote respect for the
law, and would not provide a just punishment for the crime of which you
are -- which you stand convicted. This Court has an obligation to protect
the public from you and will do so.

In State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864, the court

found a sentence of six years at hard labor for simple burglary was not

unconstitutionally excessive, given the sentence was half the maximum sentence and

the defendant was a mature, second felony offender who had a history of

unauthorized entry and theft and who was unsuccessful during a prior period of

probation.

In State v. Parker, 594 So.2d 3 (La.App. 5 Cir. 1992), the court found a

sentence of six years at hard labor for simple burglary was not excessive, in light of

the defendant’s prior criminal record, including a previous conviction for simple

robbery, which had been reduced from armed robbery.

After considering the factors set forth in Bailey, 968 So.2d 247, and the cases

cited herein, we find that the Defendant’s sentence is not excessive. Accordingly, this

assignment of error lacks merit.

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PRO SE ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In his first pro se assignment of error, the Defendant contends there was no

probable cause to charge him with simple burglary of the Davis residence. The only

evidence police had was hearsay, and there was no circumstantial or direct evidence

to substantiate a charge of simple burglary, which the due process clause requires.

The Defendant asserts there was no direct or circumstantial evidence to

substantiate a charge of simple burglary, such as fingerprints or the presence of any

stolen items on his person or property. Thus, there was no probable cause to charge

him with simple burglary. The Defendant asserts the only evidence that existed was

hearsay evidence. The Defendant asks this court to look at Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979), and state jurisprudence on evidence in criminal trials.

In his second pro se assignment of error, the Defendant contends the evidence

in this case was all “HEARSAY” and is insufficient to substantiate a charge of simple

burglary. Therefore, the State did not fulfill its constitutional due process obligation

mandated by the United States Supreme Court in proving the charge of simple

burglary before the jury. Therefore, the jury’s verdict rests entirely upon hearsay

evidence.

The Defendant asserts that he was wrongly convicted based on circumstantial

evidence. Additionally, there were no stolen items found inside his home and his

fingerprints were not found inside Davis’ residence. Further, Duhon gave several

conflicting statements to police.1 The Defendant contends the statements of Duhon

and Sinegal are conflicting.

1
The statements given by Duhon and Sinigal were not admitted into evidence at trial.

13

In counsel’s first assignment of error, we found the evidence was sufficient to

support the Defendant’s conviction. Thus, these assignments of error lack merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE:

In his third pro se assignment of error, the Defendant contends that trial

counsel’s performance during the preliminary and trial phases fell below the

constitutional standards of effective representation, rendering his assistance

ineffective in violation of his sixth amendment rights.

The Defendant argues that trial counsel failed to insure the jury was properly

instructed regarding probable cause and the types of evidence that must be presented

to convict, he failed to seek supervisory writs regarding the arbitrary denial of his

motions for judgment of acquittal and new trial, and he failed to contest the simple

burglary charge based on a lack of direct and circumstantial evidence or argue the

lack of such evidence before the jury.

[T]he standard for ineffective assistance of counsel set out in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), adopted by this Court in State v. Washington, 491 So.2d 1337,
1339 (La.1986), requires respondent to show not only that his trial
attorney’s performance fell below an objective standard of
reasonableness under prevailing professional norms but also that
counsel’s inadequate performance prejudiced him to the extent that the
trial was rendered unfair and the verdict suspect, i.e. that counsel’s
errors undermined the proper functioning of the adversary process.

State v. Matthis, 07-691, p. 7 (La. 11/2/07), 970 So.2d 505, 509.

The Defendant does not present any proof of his allegations or point to any

portion of the record to support his various claims. Thus, we find that the Defendant

has failed to meet his burden of proof. Accordingly, this assignment of error lacks

merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR:

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In his fourth pro se assignment of error, the Defendant contends that his right

to a fair trial by a jury of his peers was prejudiced. He bases his contention on the

fact that he was denied the right to select jurors of his race to participate actively in

trying his case.

The Defendant feels that if he had had a jury made up of his race, the outcome

of the trial would have been different. “Therefore, as a result of racial discrimination,

Appellant’s right to a fair and impartial trial and due process were violated.” The

Defendant further asserts he was discriminated against by an all-white jury.

The Defendant has not made reference to the record, by volume and page

number, which contains the basis for the alleged error. Thus, this court will not

consider this assignment of error. Uniform Rules—Courts of Appeal, Rule 2-12.4

PRO SE ASSIGNMENT OF ERROR NUMBER FIVE:

In his fifth pro se assignment of error, the Defendant contends the trial court

failed to insure for the record that the jury instructions in this case contained proper

instructions concerning the law on probable cause and the evidence that must be

present in this case to convict him of simple burglary.

The Defendant asserts that his conviction rests entirely upon hearsay and

circumstantial evidence. He further asserts there was no direct evidence. He

contends the jury instructions regarding probable cause and the evidence necessary

to convict obviously did not include what specific evidence must be present to

corroborate such circumstantial evidence to satisfy the constitutional mandates of due

process, which are necessary to substantiate a charge of burglary.

15

Once again, the Defendant has not made reference to the record, by volume and

page number, which contains the basis for the alleged error. Thus, this court will not

consider this assignment of error. Uniform Rules—Courts of Appeal, Rule 2-12.4.

PRO SE ASSIGNMENT OF ERROR NUMBER SIX:

In his sixth pro se assignment of error, the Defendant contends the trial court

erred in denying his motion for a new trial. The Defendant contends there was no

direct evidence to substantiate a charge of simple burglary. In fact, because there was

obviously insufficient evidence to support his conviction, the case should not have

been permitted to proceed to trial.

A Motion for New Trial was filed on April 9, 2009. In the motion and at the

hearing on the motion, the Defendant alleged the evidence was insufficient to support

his conviction, as the State failed to prove his entry into the residence was

unauthorized, as neither the landlord nor the renter of the property at issue testified

at trial. The motion was denied on April 27, 2009.

With respect to the motion for new trial, the motion alleged that
the evidence was not sufficient to support the verdict (La.C.Cr.P. art.
851(1) ) and that a new trial should have been granted to satisfy the ends
of justice (La.C.Cr.P. art. 851(5) ). As to the first ground, the denial of
a motion for new trial based upon La.C.Cr.P. art. 851(1) is not subject
to review. See State v. Toups, 2000-1944 (La.App. 4 Cir. 10/8/03), 859
So.2d 768; State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809
So.2d 1093. This holding is based upon the reasoning that review of a
ruling on a motion for new trial is limited to a review of “error of law,”
see La.C.Cr.P. art. 858, and that a trial judge’s ruling on a motion for
new trial on the basis that the verdict is contrary to the law and evidence
is grounded on the court’s reassessment of the weight of the evidence,
not the actual sufficiency of the evidence, which would bar a new trial.
See State v. Mack, 37,174 (La.App. 2 Cir. 6/27/03), 850 So.2d 1035.
Thus, this court cannot consider the trial court’s ruling on the motion for
new trial on this basis.

State v. Colbert, 07-947, p. 14 (La.App. 4 Cir. 7/23/08), 990 So.2d 76, 85, writ

denied, 08-2098 (La. 5/15/09), 8 So.3d 579.

16

Accordingly, given that such a denial of a motion for new trial is not subject

to review, we will not consider this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER SEVEN:

In his seventh pro se assignment of error, the Defendant contends that the trial

court committed reversible error by withholding his written voluntarily police

complaint information pursuant to the discovery rule motion under “Brady material

in accordance with the prior evidence law. To-wit; see, police narrative report

appendix ‘O’- Page 2 of 5 as voluntarily confirms a submission of ‘yes.’ To-wit; ‘but

for cause.’”

The Defendant contends that:

evidence was not properly submitted to the Rule Motion of Discovery.
Thus, it reflects a record for truth on narrative archive police report page
2 of 5, the District Attorney withheld Appellant’s information in that
Wendell Davis came in to his residence at 1219 South Main approaching
me in a hostile manner with a chrome plated, black handle hand-gun, to-
wit ; I ran to call the police. Also, Wendell Davis came inside my
residence without consent, to-wit; my driver’s license and food stamp
card was missing. nevertheless, there is no record other than that
reflects Appellant submitted information complaint statement in
accordance to due process rights for ATTEST - ‘BUT FOR CAUSE.’”

The record does not contain the answers to the Defendant’s requests for

discovery. Thus, we cannot determine whether the police complaint was withheld.

Accordingly, we can only find that this assignment of error lacks merit.

ADDITIONAL PRO SE ASSIGNMENT OF ERROR:

In an additional pro se assignment of error, the Defendant contends:

that there’s insufficient answers admitted into the record of transcript
which was sent to him in regards to docket # 760-08-3 of the request for
discovery and inspection and exculpatory evidence, and including all the
answers to the preliminary hearing proceeding on probable cause
verified to be present in the transcript record which was sent to him in
custody to appeal therefrom. And accordingly, trial court officials
transcript records were to be present and sufficient to the appellant in

17

legal compliance with law and order. Appellant states that only 50% of
transcript proceedings were sent to him in custody leaving the ultimate
material facts in issue withheld from the record of transcript which was
sent to him in custody as such withholding all the answers for the
verbatim preliminary hearing proceeding on probable cause. Appellant
contends this Act for withholding 50% of transcript record to be a
violation of due process rights entered by the 14th Amendment of the
United States and Louisiana Constitution.

We interpret this assignment of error as a complaint that the Defendant

received only fifty percent of the transcript in this matter. It is clear that the record,

as it exists in this court, was sent to the Defendant on November 6, 2009. Thus, this

assignment of error lacks merit.

DECREE:

The Defendant’s conviction and sentence is affirmed.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3,

Uniform Rules – Courts of Appeal.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1332

STATE OF LOUISIANA

VERSUS

LAWRENCE KIVIN NIXON

CHATELAIN, Judge, concurring.

I concur in the result of the majority opinion and offer additional reasons on

the question of whether the defendant entered the subject dwelling without

authorization.

When circumstantial evidence forms the basis of the conviction, such evidence

must consist of proof of collateral facts and circumstances from which the existence

of the main fact may be inferred according to reason and common experience. State

v. Shapiro, 431 So.2d 372 (La.1982). The reviewing court “does not determine

whether another possible hypothesis suggested by a defendant could afford an

exculpatory explanation of the events.” State v. Davis, 92-1623, p. 11 (La. 5/23/94),

637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450 (1994). Instead,

when evaluating the evidence in the light most favorable to the prosecution, the

reviewing court must determine “whether the possible alternative hypothesis is

sufficiently reasonable that a rational juror could not have found proof of guilt

beyond a reasonable doubt” as delineated in Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781 (1979). Id. (Emphasis omitted). This is not a separate test from that

enunciated in Jackson but rather an evidentiary guide to facilitate appellate review

of whether a rational juror could have found a defendant guilty beyond a reasonable

doubt. State v. Wright, 445 So.2d 1198 (La.1984).

1

In the present case, the defendant suggested to the jury in closing argument that

the State failed to carry its burden of proving the defendant’s entry into the Davis

dwelling was not authorized. In making this argument, the defendant contended

Marilyn Davis, the mother of Wendell Davis (Mr. Davis), was the lessee of the

dwelling. Accordingly, the defendant argues that although Mr. Davis testified that

he had not given the defendant authority to enter the dwelling, the State failed to

present like testimony from his mother. I find no merit to this argument.

Albeit, Mr. Davis’ mother rented the dwelling, the evidence is not disputed that

she and her son resided at this dwelling and their belongings were situated in the

dwelling. It was also developed that Mr. Davis and his mother were not always at the

dwelling. Mr. Davis testified that he split time between this dwelling in Jennings and

a dwelling in Leesville. It is equally well established that at the time of this burglary,

Mr. Davis’ mother was in Tacoma, Washington, taking care of her dying daughter;

after her daughter died, Mr. Davis’ mother remained in Tacoma to care for her

grandchildren. Accordingly, it is clear that Mr. Davis’ mother was not in Jennings

to authorize the defendant’s entry into this dwelling.

Moreover, the jury heard compelling testimony from which it could have

reasonably deduced that the defendant’s entry into this dwelling was unauthorized.

In this regard, it is noteworthy that the entry into this dwelling was by way of a

window, not a door. Likewise, this entry occurred after midnight. Although not

conclusive evidence, neither of these circumstantial facts support the defendant’s

contention that the entry into the dwelling was authorized.

Similarly, I find no merit to the defendant’s like argument to the jury that the

State failed to have the landlord testify regarding the issue of authorization to enter

2

the dwelling. Proof of lack of authorization from the dwelling’s owner is not required

under the provisions of La.R.S. 14:62; to the contrary, it need only be shown that

there was an unauthorized entry into the dwelling. See State v. Jacobs, 572 So.2d

1140 (La.App. 1 Cir. 12/18/90) (circumstantial evidence can be used to establish that

an unauthorized entry occurred). As stated in State v. Lozier, 375 So.2d 1333

(La.1979), a case involving an aggravated burglary conviction, “In the case of a

private dwelling a person must have the consent of an occupant or an occupant’s

agent to constitute a defense to ‘unauthorized’ entry.” Id. at 1336. In the present

case, it is clear that the State proved beyond a reasonable doubt that Mr. Davis, the

occupant of the dwelling, did not authorize the defendant’s entry into the dwelling.

Although the defendant may have posed possible alternative hypotheses for the

jury’s consideration about the element of authorization, I do not find that these

hypotheses were sufficiently reasonable that a rational juror could not have found

proof of guilt beyond a reasonable doubt as delineated in Jackson. Viewing the

evidence in the light most favorable to the prosecution, I find a rational trier of fact

could have found the State proved beyond a reasonable doubt that the defendant was

guilty of simple burglary.

3