State of Louisiana v. Michael Wayne Jones

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-624

CONSOLIDATED WITH

12-625

STATE OF LOUISIANA

VERSUS

MICHAEL WAYNE JONES

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NOS. 127273 AND 133793
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Jimmie C. Peters, J. David Painter, and James T. Genovese,
Judges.

CONVICTIONS AFFIRMED; HABITUAL OFFENDER
SENTENCE VACATED; AND REMANDED FOR
RESENTENCING WITH INSTRUCTIONS.

Beth S. Fontenot
Louisiana Appellate Project
Post Office Box 3183
Lake Charles, Louisiana 70602-3183
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Michael Wayne Jones

Michael Harson
District Attorney—Fifteenth Judicial District
Alan P. Haney
Assistant District Attorney
Post Office Box 4308
Lafayette, Louisiana 70502
(337) 291-7009
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Michael Wayne Jones, appeals his habitual

offender adjudication and sentence. He alleges insufficiency of the evidence

relative to his two predicate burglary offenses and excessive habitual offender

sentence. For the following reasons, we affirm Defendant’s convictions on the

predicate burglary offenses and vacate his habitual offender sentence due to error

patent.

FACTS AND PROCEDURAL HISTORY

On August 20, 2009, Dr. Stephen Goodeaux arrived at his veterinary clinic

in Scott, Louisiana, and discovered that someone had broken a window near the

door and gained entry to the clinic. He also noticed that the steering column of the

company truck, which was parked outside the clinic, had been destroyed. The

perpetrator left behind blood evidence inside the clinic that was eventually linked

to Defendant. Investigating officers secured a search warrant for Defendant’s

DNA and confirmed that he was the perpetrator. In a recorded statement,

Defendant confessed to breaking into the veterinary clinic and to damaging the

truck in an attempt to drive it home.

Defendant was charged with two counts of simple burglary. Following a

two-day jury trial, Defendant was found guilty on both counts.

The State then filed a habitual offender bill against Defendant, charging him

as a fourth felony offender. Defendant was sentenced on his original simple

burglary convictions to twelve years at hard labor on each count, to run

concurrently with each other. Thereafter, Defendant was adjudicated a fourth

felony offender; his previous sentence was vacated; and, he was sentenced to life

imprisonment at hard labor, without benefit of parole, probation, or suspension of

sentence.1

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record, we note that

there is one error patent.

In docket number 127273, for each of the two counts of simple burglary,

Defendant was sentenced to serve twelve years at hard labor, to run concurrently.

The State filed a habitual offender bill under docket number 133793, seeking to

have Defendant declared a fourth felony offender and sentenced to life

imprisonment. The habitual offender bill listed only a single conviction of simple

burglary under docket number 127273. Defendant denied the allegations of the

bill, and a habitual offender proceeding was held. At the start of the hearing, the

prosecutor, in giving the procedural history of the case, noted that Defendant was

convicted of two counts of simple burglary in docket number 127273. After

evidence was presented, the court vacated the previous sentence that it imposed

and imposed a sentence of life imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence.

A review of the habitual offender bill and the subsequent habitual offender

proceeding reveals that only one of the simple burglary sentences was enhanced.

Consequently, we find that the trial court erred in failing to specify which one of

Defendant’s two sentences it enhanced. In State v. Webster, 95-605, p. 9 (La.App.

3 Cir. 11/2/95), 664 So.2d 624, 630, this court addressed a sentencing issue similar

to the one at issue in the present case:

1
The trial court did not designate which burglary sentence was vacated, which is
addressed below as an error patent.
2

By these assignments of error, the defendant contends the trial
court erred in failing to specify which of the four convictions was
being enhanced at sentencing and in failing to sentence him on the
additional three counts within a reasonable amount of time.

The defendant notes that the trial court did not specify which
armed robbery conviction was being enhanced. Nor did the court
sentence the defendant on the remaining three convictions. The
defendant further contends the trial court should be divested of
jurisdiction on the three remaining counts as he will not be sentenced
on them within a reasonable amount of time.

We agree[] that the trial court erred in that the record does not
reveal which of defendant’s four armed robbery convictions was
being enhanced. Additionally, the trial court should have imposed a
separate sentence on each of the three remaining convictions.
Therefore, defendant’s sentence is indeterminate as he was convicted
of four counts of armed robbery and only a single sentence was
imposed. See State v. Bessonette, 574 So.2d 1305 (La.App. 3
Cir.1991); La.Code Crim.P. art. 879. Accordingly, defendant’s
sentence will be vacated and the case remanded to the trial court for
clarification as to which count is being enhanced and for imposition of
separate sentences on the remaining three counts. See State v. Parker,
593 So.2d 414 (La.App. 1 Cir.1991).

In State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, the

defendant was convicted of two counts of armed robbery. On appeal, our brethren

of the fifth circuit found patent error occurred when the trial court failed to specify

which of the two sentences it intended to enhance:

The second patent error in the record is that the trial court erred
in failing to specify which of defendant’s two sentences it intended to
enhance pursuant to the habitual offender bill. The amended
commitment also fails to indicate which of defendant’s sentences was
enhanced. Because defendant’s two convictions arose from a single
criminal episode, only one could be enhanced. State ex rel. Porter v.
Butler, 573 So.2d 1106, 1108 (La.1991). It is the opinion of this
Court that the we must vacate the habitual offender sentence and
remand the case to the trial court for re-sentencing, with the
instruction that the trial court specify which of defendant’s two
sentences are to be enhanced. See State v. Stack, 97-1176, (La.App.
5th Cir. 4/15/98), 710 So.2d 841, 845. Furthermore, in reference to
the sentencing, this Court notes that the amended commitment
incorrectly states that the defendant was convicted on Count 1 and
Count 2 of the bill of information rather than the correct Count 1 and
Count 3. This must be corrected upon re-sentencing.

3

Id. at 165.2

Additionally, in State v. Elie, 10-1494 (La.App. 3 Cir. 10/5/11), 74 So.3d

1216, writ denied, 11-2786 (La. 4/13/12), 85 So.3d 1246, this court remanded the

case for resentencing due to the defendant’s absence from sentencing, an assigned

error. On error patent review, this court noted:

In accordance with La.Code Crim.P. art. 920, all appeals are
reviewed for errors patent on the face of the record. We find one such
error. Although the trial court acknowledged that there were two
counts, it appears it enhanced only one of Defendant’s sentences at the
habitual offender proceeding for possession of a firearm by a
convicted felon. For reasons provided below, we remand this matter
to the trial court for resentencing, at which time the trial court must
specify which of Defendant’s two convictions is being enhanced.
State v. Clennon, 98-1370 La.App. 5 Cir. 6/30/99), 738 So.2d 161;
and State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664 So.2d 624.

Id. at 1219.

Considering the foregoing jurisprudence, we are required to vacate

Defendant’s habitual offender sentence, remand the matter to the trial court for

resentencing, and order the trial court to specify which of Defendant’s two

burglary sentences is being enhanced and which original sentence is being vacated.

ASSIGNMENTS OF ERROR

Defendant presents the following three assignments of error on appeal:

I. The evidence was insufficient to convict Mr. Jones because the
State failed to prove that Mr. Jones possessed the specific
intent necessary in light of the direct testimony of Mr. Jones
that his intoxicated and drugged state prevented him from
forming the specific intent necessary to commit simple
burglary.

II. In the alternative, the State failed to prove Mr. Jones committed
the offense of simple burglary of the vehicle because the State

2
We note that at the time of the Webster and Clennon opinions, it was permissible to
enhance only one of multiple convictions arising out of a single criminal episode. However, the
supreme court has since held that La.R.S. 15:529.1 does not prohibit enhancing multiple
sentences obtained the same date arising out of a single criminal episode. State v. Shaw, 06-2467
(La. 11/27/07), 969 So.2d 1233.

4

failed to prove that Mr. Jones specifically intended to commit a
felony “therein.”

III. The mandatory life sentence is unconstitutionally excessive
under the facts of this case.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, Defendant argues that the evidence was

insufficient to convict him because the State failed to prove he possessed the

specific intent necessary to commit simple burglary of the veterinary clinic and

vehicle. Defendant contends that his intoxicated and drugged state is a defense to

specific intent, an essential element of simple burglary.

The analysis for a claim of insufficient evidence is well-settled:

The standard of appellate review for a sufficiency of the
evidence claim 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, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988).
A determination of the weight of evidence is a question of fact, resting
solely with the trier of fact who may accept or reject, in whole or in
part, the testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on
the factfinding function of the jury only to the extent necessary to
assure the Jackson standard of review. State v. Bordenave, 95-2328
(La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate
court to assess credibility or re-weigh the evidence. Id.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.

Simple burglary is defined as “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 [aggravated burglary].” La.R.S. 14:62(A). This court in State v. Bias,

10-1440, p. 13 (La.App. 3 Cir. 5/4/11), 63 So.3d 399, 408, writ denied, 11-1063

(La. 11/14/11), 75 So.3d 939, referred to an analysis for an intoxication defense

5

promulgated in State v. Wilson, 44,586, 44,737, p. 4 (La.App. 2 Cir. 10/28/09),

26 So.3d 210, 215, writ denied, 09-2655 (La. 1/28/11), 56 So.3d 973:

Voluntary intoxication is a defense to a
prosecution for simple burglary only if the circumstances
indicate that it has precluded the presence of specific
criminal intent. La. R.S. 14:15(2). The defendant has the
burden of proving the existence of that condition at the
time of the offense. The specific legal question is not
when the requisite specific intent was formed, but rather
whether, at the time the unauthorized entry occurred, the
defendant was so intoxicated as to preclude the existence
of any specific intent on his part to commit a theft or
felony therein. State v. Davenport, 08-463 (La.App. 5th
Cir.11/25/08), 2 So.3d 445; State v. Godbolt, 2006-0609
(La.App. 1st Cir.11/3/06), 950 So.2d 727. When
circumstances exist that intoxication could have
precluded specific intent, the burden shifts to the state to
show beyond a reasonable doubt that specific intent was
present. Whether intoxication is sufficient to negate
specific intent is a question for the trier of fact. State v.
Davenport, supra.

See also State ex rel. D.D., 11-1384 (La.App. 3 Cir. 3/7/12), 86 So.3d 171.

In its opposition, the State asserts that Defendant did not raise the defense of

intoxication at trial. The record reflects, however, that in closing argument,

defense counsel urged the jury to consider Defendant’s intoxicated and drugged

state as a defense to the element of specific intent. Additionally, with regard to

specific intent, the trial court instructed the jury to consider the defense of

intoxication as follows:

Specific criminal intent is that state of mind which exists when
the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.

The fact that a defendant was in an intoxicated condition at the
time of the commission of the crime is usually not a defense.
However, where the circumstances indicate that the defendant
voluntarily became intoxicated or drugged and that his intoxicated
condition precluded the presence of a specific criminal intent required
in a particular crime, this fact constitutes a defense to a prosecution
for that crime.
Voluntary intoxication is a defense to the charge of simple
burglary only if the circumstances indicate that it has precluded the

6

presence of specific criminal intent. The specific legal question is not
whether the requisite specific intent was formed but, rather, whether at
the time the unauthorized entry occurred the defendant was so
intoxicated as to preclude the existence of any criminal -- any specific
intent on his part to commit a theft or felony therein.

A review of the record herein indicates that there were no eyewitnesses to

the offenses. Dr. Goodeaux testified that on August 20, 2009, he discovered that

someone had broken into his veterinary clinic. The window to the left of the front

door had been knocked out. Dr. Goodeaux also observed credit card receipts in the

driveway outside the clinic which had been removed from a drawer located inside

the clinic. After the police had secured the building, Dr. Goodeaux went through

the building and confirmed that none of the pharmaceuticals were missing. Glass

from the window was scattered around the front room, and blood spots were

observed throughout the clinic. The drawers in the front desk appeared as though

someone had rummaged through them; they were left open. Dr. Goodeaux also

testified about a truck he had purchased for his veterinary practice that was parked

in front of the clinic; he had not yet started using the truck. The steering column of

the truck had been destroyed.

On cross-examination, Dr. Goodeaux indicated that some things were

missing from the front drawer, including stamps, pocket change, and a prescription

belonging to his secretary. He stated that he learned about the missing stamps

from his secretary.

Amy Miller, Dr. Goodeaux’s veterinary assistant, testified that when she

arrived at work on August 20, 2009, she observed that a window had been smashed

in and that someone had invaded the building. Ms. Miller saw blood on the floor

and throughout the clinic and noticed that someone had gone through the drawers

in the both the secretary’s office and Dr. Goodeaux’s office. A binder in which

clients’ credit card receipts were stored was found outside the clinic in a ditch.

7

Ms. Miller also stated that the truck parked outside was damaged after she left

work the previous day.

On cross-examination, Ms. Miller explained that she shared the front desk

with the secretary. A tray was missing that contained stamps, loose change, and

things of that nature. She was not certain, however, of the exact time the

secretary’s prescription went missing, only that it was not there when she arrived

that morning.

Sergeant Gary Nezat, with the City of Scott Police Department, testified that

when he arrived at the scene, he recovered a stone found at the base of the broken

window; the stone had blood on it. He also observed blood on the fabric window

blind and on a bloody rag inside the window. Once inside the building, Sergeant

Nezat did not see anything out of the ordinary or that appeared to be disturbed. He

stated that the steering column on the truck parked at the clinic had been “busted.”

Sergeant Nezat submitted into evidence several swabs of blood that were

collected at the scene, along with the bloody rag. On cross-examination, Sergeant

Nezat confirmed that he wrote in his report, “After the inventory of the business by

personnel, no property had appeared to be missing.”

Detective Durand Hebert, with the City of Scott Police Department, testified

that he photographed the broken window of the office, the blood droplets

throughout the building, and the damaged truck parked outside the building.

Detective Hebert identified photographs of the secretary’s chair with blood on it,

the desk with opened drawers, the wooden desk top and counter top with blood on

them, and the damaged steering column and ignition of the truck. Based on his

experience, Detective Hebert believed that the truck had been tampered with in an

attempt to start it without the keys.

8

The biological material collected at the crime scene was submitted to be

analyzed and compared to the CODIS (Combined DNA Index System). The blood

samples were subsequently matched to Defendant. Detective Hebert then obtained

a search warrant to secure biological material from Defendant to compare and

either confirm or eliminate him as a suspect. Defendant was interviewed on

April 9, 2010, after he waived his Miranda rights. Detective Herbert testified that

Defendant did not appear intoxicated, and he freely and voluntarily answered the

questions. Detective Hebert did not tell Defendant about specific facts of the

offenses; Defendant volunteered the facts heard on the recorded statement. An

audio recording of Defendant’s interview was played for the jury.

In his recorded statement, Defendant indicated he was drunk and had

smoked crack cocaine prior to the commission of the offenses. Although he did

not remember the time he committed the offenses, he recalled that he was alone.

He could also remember some of the details of the offenses. Defendant stated that

he first tried to break the front window of the veterinary clinic by kicking it. He

then took what may have been a brick, threw it through the window, reached

through the broken window, and opened the door. Defendant testified that once he

realized what he was doing, he left the building. When Detective Hebert informed

him that his blood was found on the counters and drawers of the clinic, Defendant

then admitted that he had rummaged through the desk drawers. He maintained,

however, that he was searching for a Band-Aid for his bleeding hand. Defendant

reiterated that he was under the influence of alcohol and crack cocaine and did not

know what happened.

With regard to the truck, Defendant recalled that the door to the truck was

“open,” and he looked inside for a Band-Aid. He then found a screwdriver on the

floorboard of the truck and unsuccessfully tried to turn the ignition with

9

screwdriver. Defendant stated that he intended to drive the truck home if it would

have the started. When the truck did not start, he headed home on foot and later

hitch-hiked a ride to his home.

Bethany Harris, a DNA analyst at the Acadian Crime Lab, testified that a

DNA profile was developed from one of the swabs entered into a database. The

DNA profile matched another DNA profile, that of Defendant, already in the

database. After Defendant was located, a reference sample was obtained from him

to confirm that the DNA from the crime scene belonged to him. The profile

obtained from the reference was the same profile obtained from the evidence

sample. To a reasonable degree of scientific certainty, Ms. Harris stated that

Defendant was in fact the source of the DNA profile obtained from the blood on

the swab collected at the scene. The report issued by the crime lab was offered

into evidence.

In closing arguments, defense counsel raised the possibility of Defendant’s

intoxication and drugged state as a defense for simple burglary. However, the only

evidence introduced at trial that Defendant was intoxicated and/or under the

influence of drugs was his recorded statement taken almost eight months after the

offenses. Also, Defendant was able to recall details of the offenses that had not

been shared with him by police prior to his statement. As noted by this court in

State ex rel. D.D., 86 So.3d at 178:

A defendant’s voluntary intoxication may be asserted as a
defense “where the circumstances indicate that an intoxicated or
drugged condition has precluded the presence of a specific criminal
intent or of special knowledge required in a particular crime.” La.
R.S. 14:15(2). “It is, however, an affirmative defense, and the burden
is on defendant to prove by a preponderance of the evidence that he
was in fact intoxicated at the time of the offense.” State v. Mack,
45,552, p. 3 (La.App. 2 Cir. 8/11/10), 46 So.3d 801, 803. See also
State v. Bias, 10-1440 (La.App. 3 Cir. 5/4/11), 63 So.3d 399, writ
denied, 11-1063 (La.11/14/11), 75 So.3d 939.

10

Without any additional evidence of Defendant’s intoxication or drug use at the

time of the offenses, combined with his ability to recall specific details about the

offenses, we find that he did not prove by a preponderance of the evidence that he

was so intoxicated or under the influence of drugs at the time of the offenses in

order to preclude specific intent on his part to commit a theft or felony while inside

the veterinary clinic and vehicle. As such, there is no merit in this assignment of

error.

ASSIGNMENT OF ERROR NUMBER TWO

In the alternative, Defendant argues that the State failed to prove he

committed simple burglary of the vehicle. Defendant contends that the State did

not prove he specifically intended to commit a felony after entering the truck

because he did not take anything of value from inside the truck. Defendant

concedes that he tried to use the truck to drive home.

Dr. Goodeaux’s testimony reflects that the steering column of the truck was

destroyed, which is consistent with Detective Hebert’s opinion that the perpetrator

tried to start the truck without keys. However, no testimony or evidence was

introduced to show that Defendant took anything of value from inside the truck.

Accordingly, Defendant contends that the taking or using a truck without

authorization constitutes a felony; it does not constitute a felony or theft therein or

inside the vehicle.

Defendant acknowledges that in State v. Craig, 32,209 (La.App. 2 Cir.

8/18/99), 747 So.2d 604, the court held that the defendant found trying to steal a

vehicle could be convicted of simple burglary and that the theft of an entire

movable constituted a theft therein. In reaching this conclusion, the court stated:

A violation of La. R.S. 14:62, simple burglary, occurs when a
person enters into a structure (a vehicle is explicitly included) without
authority and with the specific intent to commit a felony or theft

11

therein. State v. Robinson, 29,488 (La.App.2d Cir.06/18/97), 697
So.2d 607; State v. Mitchell, 96-207 (La.App. 3d Cir.10/09/96), 684
So.2d 6. Simple burglary has substantial inchoate or incomplete
elements, i.e., an unauthorized entering of a vehicle with the intent to
commit a theft therein. If the intent is present, an actual theft does not
have to be consummated. In this respect, simple burglary is also an
attempted theft.

....

Whether an actor is charged with attempted theft or simple
burglary is within the discretion of the prosecuting authority. That the
prosecution could have chosen to charge defendant with attempted
theft is of no moment. It is not unusual that an accused’s conduct falls
within the definition of more than one criminal statute with significant
differences in penalties. The district attorney has the sole discretion to
choose under which law he will prosecute. See United States v.
Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); La.
R.S. 14:4; La.C.Cr.P. art. 61; State v. Walters, 440 So.2d 115
(La.1983); State v. Flores, 27,736 (La.App.2d Cir.02/28/96), 669
So.2d 646.

....

. . . While defendant poses an interesting question, i.e., whether
the theft or attempted theft of an entire movable constitutes a theft
therein, the fact remains that if someone is inside a vehicle attempting
to steal that vehicle, his intent is to commit a theft therein, not only of
the contents but of the vehicle itself. See State v. Augustus, 93-406
(La.App. 5th Cir.02/23/94), 633 So.2d 783; State v. Pierce, 450 So.2d
730 (La.App. 5th Cir.1984).

Id. at 606.

Defendant stresses that since the 1999 Craig decision, La.R.S. 14:67.26 was

enacted, clearly defining theft of a motor vehicle.3 Section A of La.R.S. 14:67.26

reads, in pertinent part, as follows:

Theft of a motor vehicle is the intentional performance of any
of the following acts:

(1) The taking of a motor vehicle, which belongs to another,
either without the owner’s consent or by means of fraudulent conduct,
practices, or representations, with the intention to permanently deprive
the owner of the motor vehicle; or

3
Louisiana Revised Statutes 14:67.26 was added by 2008 La. Acts No. 633, § 1 and
amended by 2010 La. Acts. No. 585, § 1.
12

(2) The taking control of a motor vehicle that is lost or mis-
delivered under circumstances which provide a means of inquiry as to
the true owner, and the person in control of the motor vehicle does not
make reasonable efforts to notify or locate the true owner; or

(3) The taking control of a motor vehicle when the person
knows or should have known that the motor vehicle has been stolen.

Defendant also points out that the legislature specifically defined the

unauthorized use of a motor vehicle as a separate and distinct offense in La.R.S.

14:68.4(A), which reads, “ Unauthorized use of a motor vehicle is the intentional

taking or use of a motor vehicle which belongs to another, either without the

other’s consent, or by means of fraudulent conduct, practices, or representations,

but without any intention to deprive the other of the motor vehicle permanently.”

By these specific enactments, Defendant maintains that the legislature clearly

intended for the unauthorized use or the taking of a vehicle to be prosecuted under

one of these provisions rather than simple burglary. Defendant concludes that the

element of simply burglary, the specific intent to commit a felony or theft therein,

does not apply when the intent is to take or use a vehicle without authorization.

Prior to Craig, this court in State v. Morris, 614 So.2d 180, 184 (La.App. 3

Cir. 1993), found that, “When defendant crawled into the cab of the truck with the

intent to commit a theft of the truck or any of its parts, or with the intent to commit

a felony, such as unauthorized use of a movable, he was committing simple

burglary.” In addition to his lack of authority or the owner’s consent to enter or

use the truck, the court found the fact that the defendant immediately started the

truck, drove it off a car lot, and sought the help of another person to hide the truck

established that he entered the truck with the intent to commit a theft or other

felony.

The record herein reflects that Defendant did not take anything of value

from inside the truck but, instead, damaged the steering column of the vehicle in an

13

attempt to take the truck. In State v. Wilson, 26 So.3d at 215, the court stated:

Although intent to commit a burglary is a question of fact, it
need not be proved as a fact. It may be inferred from the
circumstances. State v. Robinson, 29,488 (La.App. 2d Cir.6/18/97),
697 So.2d 607, writ denied, 1997-1845 (La.12/12/97), 704 So.2d
1200. A taking is not required. State v. Wright, 36,635 (La.App. 2d
Cir.3/7/03), 840 So.2d 1271. Displacement of the victim's
possessions may be indicative of the specific intent to commit a theft.
State v. Bell, [42,394 (La.App. 2 Cir. 12/5/07), 972 So.2d 1207]; State
v. Wright, supra.

Similarly, the court in State v. Jones, 97-2591, p. 8 (La.App. 4 Cir. 9/8/99), 744

So.2d 165, 169, writ denied, 99-3141 (La. 4/7/00), 759 So.2d 91, explained, “The

essence of burglary . . . is an unauthorized entry with criminal intent; a taking is

not required.” Considering this court’s ruling in State v. Morris, 614 So.2d 180,

and the related jurisprudence, we find that the elements of simple burglary of the

vehicle herein were proven by the State at trial; thus, this assignment of error is

without merit.

ASSIGNMENT OF ERROR NUMBER THREE

By this assignment of error, Defendant argues that his mandatory life

sentence is unconstitutionally excessive under the facts of this case. In light of the

fact that we vacate Defendant’s habitual offender sentence due to an error patent,

this assignment of error is rendered moot.

DISPOSITION

Defendant’s burglary convictions are affirmed. His habitual offender

sentence is vacated, and the matter is remanded for resentencing with the trial court

being ordered to specify which of Defendant’s two burglary sentences is being

enhanced and which original sentence is being vacated.

CONVICTIONS AFFIRMED; HABITUAL OFFENDER SENTENCE
VACATED; AND REMANDED FOR RESENTENCING WITH
INSTRUCTIONS.

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