State of Louisiana v. Patrick Michael Shelvin AKA - Patrick Shelvin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-544

STATE OF LOUISIANA

VERSUS

PATRICK MICHAEL SHELVIN

AKA - PATRICK SHELVIN

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 139272
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Keith A. Stutes
District Attorney
Alan P. Haney
Assistant District Attorney
Fifteenth Judicial District
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Patrick Michael Shelvin

SAUNDERS, Judge.

Defendant, Patrick Michael Shelvin, was charged with simple burglary, a

violation of La.R.S. 14:62, on December 6, 2012. A jury found him guilty as

charged on September 3, 2014. The trial court denied Defendant’s motion for new

trial on October 22, 2014. The trial court also denied post-trial motions to lift a

pre-trial detainer, for mistrial, and to dismiss Defendant’s attorney. After a

presentencing investigation, the trial court sentenced Defendant to the maximum

term of twelve years at hard labor and a $2,000 fine.

FACTS:

On October 9, 2012, Defendant entered Kim’s Grocery in Lafayette,

Louisiana, without authorization and was found by police with money and

cigarettes from the store.

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.

ASSIGNMENT OF ERROR:

Defendant argues the evidence at trial was insufficient to prove he entered

the business with the intent of committing a theft therein, as opposed to developing

the intent after entering the business. The standard of review in a sufficiency of

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

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

reasonable doubt of each of the essential elements of the crime charged.” State v.

Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221,

127 S.Ct. 1279 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of

review is now legislatively embodied in La.Code Crim.P. art. 821. It does not

allow the appellate court “to substitute its own appreciation of the evidence for that

of the fact-finder.” State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521

(citing State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165; State v.

Lubrano, 563 So.2d 847 (La.1990)). The appellate court’s function is not to assess

the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.

10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan,

07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the

sufficiency evaluation standard of Jackson, “the appellate court should not

second-guess the credibility determination of the trier of fact[,]” but rather, it

should defer to the rational credibility and evidentiary determinations of the jury.

Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720

So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s
discretion and its role in determining the credibility of witnesses “only
to the extent necessary to guarantee the fundamental due process of
law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In
determining the sufficiency of the evidence supporting a conviction,
an appellate court must preserve “‘the factfinder’s role as weigher of
the evidence’ by reviewing ‘all of the evidence . . . in the light most
favorable to the prosecution.’” McDaniel v. Brown, 558 U.S. [120],
[134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979)). When so viewed by an appellate court, the relevant question
is whether, on the evidence presented at trial, “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
Applied in cases relying on circumstantial evidence, . . . this
fundamental principle of review means that when a jury “reasonably
rejects the hypothesis of innocence presented by the defendant[ ], that
hypothesis falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt.” State v. Captville, 448
So.2d 676, 680 (La.1984).

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State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378 (per

curium)(last alteration in original).

“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[.]” La.R.S. 14:62(A). “Mere

possession of property recently stolen in a burglary does not create a presumption

that the defendant committed the offense.” State v. Ewens, 98-1096, p. 5 (La.App.

5 Cir. 3/30/99), 735 So.2d 89, 93, writ denied, 99-1218 (La. 10/8/99), 750 So.2d

179 (citing State v. Brown, 445 So.2d 422 (La.1984)). “Although the 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. . . . Displacement of the victim’s possessions may

be indicative of the specific intent to commit a theft.” State v. Wilson, 44,586,

44,737, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, 215, (citations omitted) writ

denied, 09-2655 (La. 1/28/11), 56 So.3d 973.

In State v. Marcello, 385 So.2d 244 (La.1980), the defendant was discovered

in the hallway of an office building after he entered the building through the roof,

where he was sleeping, to wash in a restroom. He was searching for an easier exit

when he was discovered. His presence and subsequent flight, without possession

of burglary tools or stolen property, were insufficient to establish that he intended

to commit a felony or theft.

In State v. Jones, 426 So.2d 1323 (La.1983), the defendant’s conviction for

attempted simple burglary was reversed because the State failed to prove he had

the requisite intent to commit a felony or theft. The defendant was discovered in

his neighbor’s home, but without burglary tools or any other evidence that he

intended to commit a felony or theft. The defendant said he went there to seek

transportation to obtain medical assistance. His neighbors testified that he
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appeared to be in a drunken stupor or on drugs; police testified his eyes were

glossy, but he was otherwise coordinated. The supreme court held the defendant’s

mere presence in the house did not support an inference of intent to commit a

felony or theft therein.

The supreme court reversed the defendant’s conviction for attempted simple

burglary of an inhabited dwelling in State v. Ricks, 428 So.2d 794 (La.1983). The

defendant, who knew a resident of the apartment, pulled the screen door latch loose

around midnight. He was unarmed, carried no burglary tools, and did not steal or

attempt to steal anything. The State introduced no evidence of his involvement in

similar burglaries.

In State v. Jacobs, 504 So.2d 817 (La.1987), police entered a home and

found one defendant under the kitchen table and the other defendant, his brother,

under the only bed in the house. They found food on the kitchen table and a chisel,

screwdriver, and flashlight on the floor of the bedroom near the bed. Entrance was

gained through a locked door, the defendants were discovered hiding in the

dwelling with tools nearby one of them that could certainly be considered burglary

tools. Additionally, items belonging to the renter had been tampered with, and one

of the defendant’s own testimony established he had been involved in or was being

sought in connection with another burglary. The first circuit affirmed the

defendant’s conviction for simple burglary. State v. Jacobs, 435 So.2d 1014

(La.App. 1 Cir. 1983).

The supreme court reversed the defendant’s conviction, stating:

In the present case, the circumstances relied on by the court of
appeal as proving intent simply do not exclude every reasonable doubt
as to the intent element of simple burglary. Whether the entry was
through a locked or an open door is of no significance to the intent
issue. The finding of tools customarily used for break-ins also bears
primarily on the conceded issue of unauthorized entry. The fact that
the intruders were hiding when apprehended inside the house merely
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indicates a consciousness of guilt of criminal trespass and does not
necessarily indicate an intent to steal. The fact that relator’s brother
had been told the police were looking for him “for another burglary”
proves nothing as to relator’s intent to commit a theft or felony when
he made the unauthorized entry here. There was no evidence before
the jury as to relator’s lack of employment or past criminal record.
The impeached credibility of relator’s brother does not supply
affirmative evidence of guilt, but rather provides only a basis for an
appellate court reviewing the sufficiency of evidence to disregard the
particular testimony so that there is no probative value either way.
Finally, the intermediate court’s observation that items belonging to
Mrs. Vicks had been tampered with is an overstatement of the
evidence. . . .

Here, the prosecution attempted to prove its theory that relator
and his brother had just broken into the house and were caught before
they could get away with anything. On the other hand, relator’s theory
of innocence was that his brother was staying temporarily in the house
(concededly by means of an unauthorized entry) and that he was
supplying his brother with food. Even if relator’s brother’s testimony
is completely disregarded, the evidence presented by the prosecution
is at least as consistent with relator’s theory as it is with the
prosecution’s theory.

According to the testimony of the police officers, someone had
apparently been sleeping in the bed and had eaten a meal recently in
the house. The lessee, on the other hand, denied that she had ever
eaten or slept there. Moreover, while one reasonable hypothesis as to
the tools on the bedroom floor was that relator’s brother had just used
them to break into the house, another reasonable hypothesis consistent
with the lessee’s testimony was that the lessee’s friend who
reassembled the bed in the house used tools from the toolbox in the
kitchen and left the tools in the bedroom. The overall evidence, both
direct and circumstantial, even when viewed in the light most
favorable to the prosecution, does not exclude every reasonable doubt
that relator and his brother made an unauthorized entry into the house
in order for the brother to live there temporarily. Thus, the evidence
does not prove beyond a reasonable doubt that they made an
unauthorized entry with the intent to commit a theft or felony inside
the house.

State v. Jacobs, 504 So.2d 817, 820-821 (La.1987) (footnote omitted).

In State v. Wright, 36,635 (La.App. 2 Cir. 3/7/03), 840 So.2d 1271, the

defendant’s conviction for simple burglary was reversed where he entered a house

undergoing extensive renovations. There were no signs of forced entry, the

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victim’s possessions were not displaced, the defendant did not possess any

burglary tools or weapons, and he was not wearing a mask or gloves.

Conversely, in State v. Pike, 426 So.2d 1329 (La.1983), the supreme court

affirmed defendant’s conviction for simple burglary of an inhabited dwelling. The

defendant gained entrance through a locked kitchen window. He was discovered

hiding in a bedroom closet at 2:30 a.m. A jewelry box had been tampered with,

and a ring was missing. The supreme court found these facts sufficient to prove

the defendant had the intent to commit a theft.

Likewise, in Wilson, 26 So.3d 210, the defendant was found sleeping in a

locked vehicle with a broken rear passenger window. With him was a bag

containing bolt cutters and a ski mask, which did not belong to the vehicle owner.

The glove box had been opened, and a bottle of cologne and some change were

missing. They were found either on the defendant or in his bag.

The defendant in Wilson argued the evidence showed he either entered the

vehicle to sleep or he was so intoxicated he lacked the requisite specific intent to

commit a theft. The second circuit distinguished Jacobs, 504 So.2d 817, and

Wright, 840 So.2d 1271, because those cases lacked evidence that any items were

displaced. The second circuit affirmed the defendant’s conviction, finding a

reasonable jury could have found the defendant guilty beyond a reasonable doubt.

Here, Andy Nguyen, owner of L&R Grocery, commonly known as Kim’s

Grocery, closed the store on the night of October 9, 2012. He saw nothing wrong

with the ceiling, and everything on the shelves was in order when he left. When

Mr. Nguyen received a call from his alarm company later that night, he returned to

the store and “saw a lot of officers surrounding the building.” He unlocked the

store and let them in, and he saw some of the ceiling tiles had fallen. Officers told

him to leave the building; about five minutes later, they brought someone out of
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the store. Mr. Nguyen went inside and found “four (4) or five (5) cartons of

cigarettes inside a bag, and some of the money, coins inside the bag, also.” Police

never showed him the man they brought out of the store.

Officer Brandon Morvant, of the Lafayette Police Department, arrived at the

store that night with Officer Paul Crozier, a canine officer. They found the doors

locked and the windows intact, with no obvious signs of entry. When Mr. Nguyen

arrived to let them in, Officer Morvant saw “ceiling tiles hanging down as if

somebody had entered through the ceiling.” They found Defendant “in a make-

shift closet in the back of the business.”

Defendant refused commands to surrender and lie on the ground. The dog

knocked Defendant to the ground, and the officers handcuffed him. Officer

Crozier identified Defendant at trial as the man they found in the store. Near

Defendant was a white trash bag with “a bunch of tobacco products, cartons of

cigarettes, cigars and . . . also . . . a white bucket full of change, loose change,

rolled change from liked [sic] a register[.]” Officer Crozier did not see any

surveillance video or take any DNA samples. The officers arrested Defendant and

took him outside the store and into the police unit.

Although Officer Morvant reviewed surveillance video of the store, none of

the camera angles showed a suspect entering the business. Entry was made at the

southwest corner, and Officer Morvant found Defendant in the closet in the

northwest end of the building. The area behind the counter and other areas of the

store were disheveled. Nevertheless, none of the cameras had any footage showing

anyone in the store, but Officer Morvant was uncertain about whether the security

system was operational or if he saw video of the actual time of the burglary.

Officer Morvant also swabbed a five-gallon bucket and a box of coins for

DNA. He submitted the swabs to the Lafayette Police Department evidence
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section. Normal practice was to send swabs to the Acadiana Crime Lab for

submission into the combined DNA Index System. Officer Morvant was not

involved in the follow-up of the burglary. Thus, he was unaware whether the

swabs were submitted. Likewise, Officer Crozier did not see any surveillance

video or take any DNA samples.

Corporal Scott Rummel, of the Lafayette Police Department, was the lead

investigator on this case, but he never went to the scene. Although he received

information that DNA evidence had been collected, he did not know how many

swabs were taken, and he did not know if the swabs were submitted for testing. He

could not say whether the swabs matched the DNA of Defendant or of anyone else.

He did not feel DNA identification was necessary considering the entirety of the

investigation. He understood the surveillance video was to be downloaded by the

store owner, “[a]nd if it could not be, then we would have no surveillance video.”

Corporal Rummel never attempted to go to the store and get the video. All the

evidence from his investigation pointed to Defendant as the person who committed

the burglary; none of the evidence suggested his innocence.

In order to affirm Defendant’s conviction, this court must find that he had

the intent to commit a felony when he entered the store. Someone gained entry to

the store through the ceiling. Defendant was inside the store, hiding in a closet.

Money and merchandise were nearby, and they were not there when the owner left

the store earlier in the evening. The trial court evaluated the credibility of the

witnesses, including the responding and investigating police officers, and found

Defendant guilty.

Given the standard of review, the unauthorized entry into the building, the

displacement of items inside it, and the Defendant’s presence in the building near

the displaced items, we find sufficient evidence to establish Defendant’s specific
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intent to commit a felony inside the store. Accordingly, Defendant’s conviction is

affirmed.

DECREE:

Defendant’s conviction is affirmed.

AFFIRMED.

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