State of Louisiana v. Dennis Weldon Thompson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-194

STATE OF LOUISIANA

VERSUS

DENNIS WELDON THOMPSON

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 68548
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Don M. Burkett
District Attorney, Eleventh Judicial District
Anna L. Garcie, Assistant District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT-APPELLANT:
Dennis Weldon Thompson

PICKETT, Judge.

FACTS

Late in the evening on October 3, 2010, the defendant, Dennis Weldon

Thompson, and co-defendant, Gregory Collier, knocked on Rufus and Neva

Kelly‟s kitchen door. One of the men said that his car had broken down, and he

required help. When Mr. Kelly opened the door, one man produced a gun. The two

men then forced their way into the house and threatened to harm the couple unless

they complied. The two men ransacked the house and took money, Ms. Kelly‟s cell

phone, and Mr. Kelly‟s hat. After tying the couple up, they fled the scene.

On December 9, 2010, the defendant was charged by a bill of information

with one count of armed robbery, a violation of La.R.S. 14:64, and one count of

home invasion, a violation of La.R.S. 14:62.8. A jury trial commenced on August

28, 2012, and on August 29, 2012, the jury returned a guilty verdict of first degree

robbery, a violation of La.R.S. 14:64.1, and home invasion.

The defendant was sentenced on December 13, 2012, to forty years at hard

labor without the benefit of parole, probation, or suspension of sentence on the

conviction for first degree robbery, and twenty-five years at hard labor without the

benefit of parole, probation, or suspension of sentence on the conviction for home

invasion. The sentences were ordered to be served consecutively. Defense counsel

filed a Motion to Reconsider Sentence alleging that the sentences were excessive

considering the circumstances of the case. The motion was denied without written

reasons.

The defendant has perfected a timely appeal, alleging insufficient evidence

to sustain the convictions and excessive sentences.

ERRORS PATENT

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

this court for errors patent on the face of the record. After reviewing the record,

we find no errors patent.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that there was no direct evidence connecting him with

the home invasion and first degree robbery of the Kellys. He points out that neither

Mr. Kelly nor Mrs. Kelly identified him as the robber prior to or during the trial.

The convictions are based solely on circumstantial evidence. He further asserts that

the credibility of two of the state‟s witnesses is questionable. Accordingly, the

defendant asserts that the evidence was insufficient to sustain the convictions.

In evaluating the sufficiency of the evidence to support a
conviction, a reviewing court must determine 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.
Captville, 448 So.2d 676, 678 (La.1984). Additionally, where
circumstantial evidence forms the basis of the conviction, the
evidence must exclude every reasonable hypothesis of innocence,
“assuming every fact to be proved that the evidence tends to prove.”
La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796
So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152
L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438
“works with the Jackson constitutional sufficiency test to evaluate
whether all evidence, direct and circumstantial, is sufficient to prove
guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674
p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied,

552 U.S. 1012, 128 S.Ct. 537 (2007).

The credibility of a witness is a matter of weight of the evidence, not

sufficiency, and determination of the credibility is left to the finder of fact‟s sound

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discretion and will not be re-weighed on appeal. State v. F.B.A., 07-1526 (La.App.

3 Cir. 5/28/08), 983 So.2d 1006, writ denied, 08-1464 (La. 3/27/09), 5 So.3d 138.

At trial, the following witnesses testified:

Rufus Kelly testified that he was seventy-four years old at the time of the

incident. He lived on Kelly Road, in Sabine Parish, about a mile away from BJ‟s

Grocery on Highway 6. At approximately 11:30 p.m., there was a knock at Mr.

Kelly‟s kitchen door. Mrs. Kelly had already retired to the bedroom. A man stood

outside and, through the door, told Mr. Kelly that his car was broken down in a

ditch. When Mr. Kelly opened the door the man charged up the steps, pulled a gun,

and shouldered his way into the kitchen. The man jammed the gun under Mr.

Kelly‟s chin and asked if there was anyone else in the house. He told the man only

his wife, who was in the bedroom. He described the man as a dark-skinned black

male, and not wearing a mask. The man then pushed him towards the bedroom.

When they entered the room, Mrs. Kelly was standing beside the bed with a .22

rifle. The man “got excited and jammed the gun up harder and said, uh, put that

gun down, put it down, I‟ll kill him, I‟ll kill him.” Mrs. Kelly put the gun down.

Mr. Kelly testified that at this point another man came into the bedroom

wearing a ski mask and gloves. The first man gave the gun to the masked man.

The masked man told the first man to put his mask on, which he did at that time.

The two men then marched the couple around the house looking for money. They

took Mr. Kelly‟s wallet. The first man demanded more money, stating that “I need

some ice.” Additional money was taken from a bedroom drawer. They took over

two hundred fifty dollars and Mrs. Kelly‟s cell phone. The two men tied the couple

up with duct tape and fled the house. Mr. Kelly testified that after the men went

outdoors, he heard “one say, hey, and that‟s when the driver pulls up. You can hear

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the vehicle and they got in it and left.” Mr. Kelly stated that he was never shown a

photographic lineup or identified the men for the police. He did not identify the

two men at trial as the individuals who perpetrated these offenses.

Mrs. Neva Kelly also testified. Her testimony corroborated her husband‟s

testimony. She also stated she was never shown a photograph lineup or identified

the two robbers. She said she never saw their faces.

The couple was eventually able to free themselves. Upon discovering that

their house phone was inoperable, they drove to the sheriff‟s office to report the

robbery.

David Self, a lieutenant with the Sabine Parish Sheriff‟s Office, investigated

the case. He stated that they collected the duct tape used to tie the victims to look

for DNA evidence. Lieutenant Self explained that “ice” was the street term for

methamphetamine. He also testified that eleven days after the robbery, he was

contacted by Chris Miller, a distant neighbor of the Kellys, who told him that he

had found Mrs. Kelly‟s cellphone alongside the road about one-half mile from the

Kellys‟ house. He told Mr. Miller to stay right where he was and immediately

drove to the location. Lieutenant Self stated that near where the cellphone was

found, he located several items that were apparently tossed toward the wooded

area: a ski mask, a pillow case, a blue hoodie, and some scrap material. These

items were collected to be tested for DNA evidence. He stated that shortly after

these items were sent to the crime laboratory, he was contacted by Alice Maxie,

who advised him that her former boyfriend, the defendant, had told her that he and

another man had robbed a couple and had tied them up with duct tape. Lieutenant

Self also collected DNA samples from the defendant, the co-defendant, and two

other suspects.

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Ms. Maxie testified at trial that the defendant told her that “him and Greg

had went and robbed someone out there on the—I don‟t know the name of the road

but across from BJ‟s[.]” He said that he tied up the victims with duct tape and that

he had robbed them to get money for ice. The defendant said that he and Mr.

Collier had thrown items of clothing out of the vehicle. She explained that

although she and the defendant had been living together with her young daughter,

she moved out and began living with her parents a few weeks prior to the robbery.

The defendant stayed in the rental house for a while because he had no other place

to stay at the time. However, shortly before she called the police, her former

landlady called her and told her that the stove and refrigerator were missing from

the house and she was expected to pay for the missing appliances. At trial, Ms.

Maxie identified the blue hoodie as one that belonged to her, but that the defendant

wore it. She also identified some of the material found with the blue hoodie and the

ski mask as one pant leg from her daughter‟s jogging suit. Based on this

information, Lieutenant Self obtained an arrest warrant for the defendant and Mr.

Collier.

Albert Brown, Jr. testified that he lived in New Orleans, but in October

2010, he lived in Florien, Louisiana, and knew Mr. Collier. He said that at the time

he did a lot of drugs with Mr. Collier. He did not know the defendant until he was

introduced to him by Mr. Collier. He identified both men in court. He testified that

one night in October 2010, he drove the two men and Mr. Collier‟s daughter to a

location directed by Mr. Collier‟s daughter. Mr. Collier said that he and his

daughter were homeless and he needed to pick up some money. They drove down

Highway 6 and then turned off and went a short distance. He was told to stop, and

the two men got out of the car. He said they told him to go get gas and come back

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to pick them up. After he got gas, he went back, but “I passed them up at first and

I just, you know, and I heard them holler - - somebody holler then I stopped.” He

said they drove for a bit and stopped again. The defendant and Mr. Collier got out

of the vehicle and it “sounded like they was [sic] throwing something out or

whatever, you know.”

Roxanne Liles testified regarding the DNA samples collected by the police.

She worked for the North Louisiana Criminalistics Laboratory and was qualified as

a DNA analyst and forensic scientist. She testified that she found hair in the ski

mask. She analyzed the DNA taken from the hair and a blue shirt found with the

items on the roadside. She stated that Mr. Collier could not be excluded as the

major contributor to the DNA located on those two items. Furthermore, Ms. Liles

testified that the defendant could not be excluded as the major contributor of the

DNA found on the blue hoodie.

The defendant argues that, in addition to the fact that there is no physical

evidence to connect the defendant with the crimes, Ms. Maxie‟s and Mr. Brown‟s

testimonies were suspect. He argues that they had both received deals in exchange

for their favorable testimonies.

At trial, Mr. Brown testified that he pled guilty to accessory after the fact to

home invasion and spent sixteen months in jail. An accessory after the fact is

defined as “any person who, after the commission of a felony, shall harbor,

conceal, or aid the offender, knowing or having reasonable ground to believe that

he has committed the felony, and with the intent that he may avoid or escape from

arrest, trial, conviction, or punishment.” La.R.S. 14:25. He agreed that because of

his extensive prior criminal history, had he been charged as a principal, he would

have been facing a lengthy prison sentence. Mr. Brown also admitted that he

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agreed to testify for the state as a part of the plea agreement, although he insisted at

trial that he did not know what the two men were up to when he dropped them off

and returned to pick them up.

Ms. Maxie, however, was not charged with any crime. Ms. Maxie agreed

that she did not report the defendant‟s revelation until after she learned that he may

have taken the appliances out of the house she had leased. A person does not have

a legal obligation to report a crime if she should learn about the crime after the fact

but did nothing to aid the offender. In this case, there was no plea agreement. Ms.

Maxie did not benefit from her testimony.

The appellate court‟s authority to review questions of fact in a criminal case

is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781 (1979). The appellate court‟s function is not to assess

credibility or re-weigh the evidence. State v. Helou, 02-2302 (La. 10/23/03), 857

So.2d 1024. “In the absence of internal contradiction or irreconcilable conflict

with physical evidence, one witness's testimony, if believed by the fact finder, is

sufficient support for a requisite factual conclusion.” State v. Dorsey, 10-216, p.

44-45 (La. 9/7/11), 74 So.3d 603, 634, cert. denied, 80 U.S. 3563, 132 S.Ct. 1859

(2012).

Although the victims could not identify the men who robbed them at

gunpoint, the circumstantial evidence was overwhelming. A ski mask was located

a short distance away from the victim‟s house. DNA analysis of the hair found in

the mask connected the mask to Mr. Collier. The blue hoodie contained the

defendant‟s DNA. Both items were located close to where Mrs. Kelly‟s cellphone

was found. Mr. Kelly testified that his house was located close to BJ‟s store. The

defendant told his former girlfriend that he had robbed a couple who lived close to

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BJ‟s store. Mr. Kelly testified that after the two men left the house, he heard one of

the men yell out, and a vehicle stopped and picked them up. Mr. Brown testified

that he had passed up the two men, and when one of the men hollered, he turned

around and drove back to them. The jury heard all of the testimony, and there were

no internal contradictions or irreconcilable conflicts with the physical evidence.

We find that the jury‟s decision was rational in this case. “[I]rrational decisions to

convict will be overturned, rational decisions to convict will be upheld, and the

actual fact finder‟s discretion will be impinged upon only to the extent necessary to

guarantee the fundamental protection of due process of law.” State v. Mussall, 523

So.2d 1305, 1310 (La.1988) (emphasis in original). See also State v. Perry, 08-

1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38

So.3d 352. We find the circumstantial evidence presented excluded every

reasonable hypothesis of innocence.

There is no merit to this assignment of error.

EXCESSIVE SENTENCE

The defendant was sentenced to forty years at hard labor on the conviction

for first degree robbery and twenty-five years at hard labor on the conviction for

home invasion. The sentences were ordered to be served consecutively for a total

of sixty-five years imprisonment. The defendant argues that the sentences are

excessive considering the offenses and excessive in that the sentences were ordered

to be served consecutively.

The statute regarding the offense of first degree robbery provides for a range

of punishment “at hard labor for not less than three years and for not more than

forty years, without benefit of parole, probation or suspension of imposition or

execution of sentence.” La.R.S. 14:64.1(B). The statute regarding home invasion in

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a case where the victim is sixty-five years or older mandates that the offender

“shall be fined not more than ten thousand dollars and shall be imprisoned at hard

labor for not less than ten nor more than twenty-five years. At least ten years of the

sentence imposed shall be served without benefit of parole, probation, or

suspension of sentence.” La.R.S. 14:62.8(B)(2).

The sentences were the maximum prison sentences that could have been

ordered. The defendant asserts that the sentences are nothing more than cruel and

unusual punishment. This court discussed the standard of review applicable to

claims of excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir.

3/3/04), 867 So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ „[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.‟” State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is
given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved
for the most serious violations and the worst offenders.” State v.
Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225.
The only relevant question for us to consider on review is not whether
another sentence would be more appropriate, but whether the trial
court abused its broad discretion in sentencing a defendant. State v.
Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

This court went on to agree with the fifth circuit, who, in State v. Lisotta, 98-

648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.

6/25/99), 745 So.2d 1183, stated that a reviewing court should consider three

factors in reviewing the trial court‟s sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

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3. The sentence imposed for similar crimes by the same court and
other courts.

In the current case, at the sentencing hearing, the trial court stated for the record:

You appeared in this court and you were convicted by a jury of
home invasion and first degree robbery. I discussed with your
attorney and Ms. Garcia regarding the mistake made in the
presentence investigation. It should have reflected that jury convicted
you of home invasion and first degree robbery not armed robbery. I
note that you are in fact a fourth felony offender. I‟ve reviewed the
PSI. I‟ve made it available to your attorney to review. I‟ve read your
statement. I‟ve noted the victim impact statement. As I stated earlier, I
noted that you are a fourth felony offender. I‟ve reviewed the
sentencing guidelines. In this court‟s opinion, a lesser sentence would
not address the seriousness of these offenses that you committed. And
this is not the first time that you have gone into someone‟s home or a
dwelling. You were originally back in 2000 in fact-- and of course the
PSI reflects all this and I‟m going to cause it to be filed in the record-
- you were originally charged with aggravated burglary and armed
robbery and allowed to plead guilty to aggravated burglary. And then
you have some other felonies as well.

The defendant argues that the trial court did not state for the record sufficient

aggravating factors to warrant maximum sentences, particularly maximum

sentences that are also ordered to be served consecutively. However, the trial court

is not required to list every aggravating or mitigating circumstance as long as the

record reflects that it adequately considered the guidelines of the article. State v.

Smith, 433 So.2d 688, 698 (La.1983). Where the record clearly shows an adequate

factual basis for the sentence imposed, remand is unnecessary even where there has

not been full compliance with La.Code Crim.P. art. 894.1. State v. Lanclos, 419

So.2d 475 (La.1982).

As noted above, the trial court ordered and reviewed a presentence report

and filed it into the record. The report indicated that the defendant was thirty-four

at the time. He had a tenth grade education. In the defendant‟s statement, he

admitted he relied on a life of crime to support a drug and alcohol problem. The

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report revealed that while he was not married, he had four children, whom, he

claimed, he supported. Prior to the current offenses, he had been arrested five

times, involving twelve offenses, starting in 1997. He pled guilty to two

misdemeanors and four felonies. Several of the sentences imposed were

suspended, and he was placed on probation. In each case, the probation was

revoked and he was required to serve out the sentence. The defendant has never

satisfactorily completed a term of probation or parole.

The trial court heard the evidence at trial that supported a conviction for

armed robbery, but the jury chose to convict the defendant of first degree robbery,

an offense that involves threats of death or great bodily harm to more than one

person. The defendant also argues that it was error for the trial court to order the

sentences to run consecutively pursuant to La.Code Crim.P. art. 883, which

provides that, when two or more convictions arise from the same transaction or

constitute parts of a common scheme or plan, the terms of imprisonment shall be

served concurrently unless the court expressly directs that some or all be served

consecutively. However, the jurisprudence recognizes that it is within a trial

court‟s discretion to order sentences to run consecutively rather than concurrently.

State v. Bartie, 12-673 (La.App. 3 Cir. 12/5/12), 104 So.3d 735. “The factors to

consider when imposing consecutive sentences include defendant‟s criminal

record, the severity or violent nature of the offenses, or the danger the defendant

poses to the public.” State v. Wallace, 11-1258, p. 14 (La.App. 3 Cir. 5/30/12), 92

So.3d 592, 602, writs denied, 12-1861, 12-1865 (La. 3/8/13), 109 So.3d 355.

Failure to articulate specific reasons for consecutive sentences does not require

remand if the record provides an adequate factual basis to support consecutive

sentences. State v. Williams, 08-556 (La.App. 5 Cir. 1/13/09), 8 So.3d 3, writ

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denied, 09-330 (La.11/6/09), 21 So.3d 298. Furthermore, while noting that

particularly where the convictions arise out of the same course of conduct, in State

v. Brown, 627 So.2d 192, 199 (La.App. 3 Cir. 1993), writ denied, 93-3101 (La.

3/18/94), 634 So.2d 850, this court stated that “in cases involving offenders

without prior felony record, concurrent rather than consecutive sentence should be

imposed[.]” This defendant has a significant felony record.

This court affirmed a thirty-year sentence imposed on a conviction for first

degree robbery in State v. Sullivan, 02-360 (La.App. 3 Cir. 10/2/02), 827 So.2d

1260, writs denied, 02-2931 (La. 4/21/03) 841 So.2d 790 and 02-2965 (La 9/5/03),

852 So.2d 1024. The defendant, who had four prior convictions, robbed a bank

while pretending he had a gun. In the current case, while the maximum sentences

imposed consecutively for a total of sixty-five years is harsh, we cannot say that

the trial court abused its vast discretion when it sentenced the defendant. There

were two elderly victims, there was a serious threat of death or great bodily harm,

and the defendant has a lengthy criminal history involving violent crimes.

ILLEGALLY LENIENT SENTENCE

Lastly, the defendant argues that the sentences are illegally lenient and

indeterminate. He notes that at the sentencing hearing, when the trial court

pronounced the sentences, it stated only that the sentences were to be served

without parole. The trial court did not recite the standard language, “without the

benefit of parole, probation, or suspension of sentence.” See La.R.S. 14:62.8(B)(2)

and 14:64.1(B). However, La.R.S.15:301.1 provides, in pertinent part:

A. When a criminal statute requires that all or a portion of a
sentence imposed for a violation of that statute be served without
benefit of probation, parole, or suspension of sentence, each sentence
which is imposed under the provisions of that statute shall be deemed
to contain the provisions relating to the service of that sentence

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without benefit of probation, parole, or suspension of sentence. The
failure of a sentencing court to specifically state that all or a portion of
the sentence is to be served without benefit of probation, parole, or
suspension of sentence shall not in any way affect the statutory
requirement that all or a portion of the sentence be served without
benefit of probation, parole, or suspension of sentence.

....

C. The provisions of this Section shall apply to each provision
of law which requires all or a portion of a criminal sentence to be
served without benefit of probation, parole, or suspension of sentence,
or of any one of them, any combination thereof, or any substantially
similar provision or combination of substantially similar provisions.

In cases in which the trial court does not recite restrictions on probation or

suspension of sentence at sentencing, La.R.S. 15:301.1(A) deems that those

required statutory restrictions are included in the sentence, whether the sentencing

court imposes them or not. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d

790. Furthermore, in a case where the trial court did not specify that the sentence

was not subject to probation or suspension of sentence when required by statute,

the fifth circuit, in State Fletcher, 03-60, p. 12 (La.App. 5 Cir. 4/29/03), 845 So.2d

1213, 1222, held that “a trial court is in substantial compliance with the sentencing

directives of the multiple offender statute if the court does not affirmatively

suspend any portion of the enhanced sentence or impose any probationary period,

despite the failure to state the above restrictions.”

The defendant also argues that the trial court did not indicate for the record

how many of the years imposed on the home invasion conviction were to be served

without parole. However, the trial court did state that “[r]egarding the home

invasion[,] because at least one of the occupants was sixty-five years of age or

older, the sentence of the court is twenty-five years at hard labor without parole.”

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The trial court quite clearly ordered that the entire sentence to be served without

parole.

The defendant further argues that the trial court failed to impose a

mandatory fine, and as such, the sentence is illegally lenient. The defendant argues

“This error alone requires that the matter be remanded to the trial court for the

imposition of the fine.” The home invasion statute provides that, in a case where

there is present in the dwelling a person sixty-five years or older, the offender

“shall be fined not more than ten thousand dollars.” La.R.S. 14:62.8(B)(2).

This court has routinely declined to recognize La.R.S. 14:62.8(B)(2) as

requiring vacation of the sentence and remanding even though no fine was

imposed. See State v. Francois, 06-788 (La.App. 3 Cir. 12/13/06), 945 So.2d 865,

wherein this court did not find the defendant‟s sentence excessive or deficient even

though he did not receive a fine as mandated by statute. We find that when the

sentence includes a penalty of a fine of “not more than” a certain amount without

also including a minimum fine, the trial court‟s failure to impose a fine does not

make the sentence illegally lenient. A fine of $0 is “not more than ten thousand

dollars.”

CONCLUSION

The defendant‟s convictions and sentences are affirmed.

AFFIRMED.

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