State of Louisiana v. William Shupp

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-695

STATE OF LOUISIANA

VERSUS

WILLIAM SHUPP

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 19130-13
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Marc T. Amy, Billy Howard Ezell, and David Kent Savoie,
Judges.

CONVICTIONS AND SENTENCES FOR ARMED ROBBERY AND FALSE
IMPRISONMENT AFFIRMED; CONVICTION AND SENTENCE FOR
UNAUTHORIZED USE OF A MOTOR VEHICLE REVERSED;
REMANDED WITH INSTRUCTIONS.

John F. DeRosier
District Attorney
David Kimball
First Assistant District Attorney
Carla S. Sigler
Karen C. McLellan
Assistant District Attorneys
Fourteenth Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Jonathan W. Brown
1025 Mill Street
Lake Charles, LA 70601
(337) 564-6990
COUNSEL FOR DEFENDANT/APPELLANT:
William Shupp

EZELL, Judge.

Defendant William Shupp was charged on August 1, 2013, via bill of

information with armed robbery, a violation of La.R.S. 14:64, theft of a motor

vehicle over $1500.00, a violation of La.R.S. 14:67.26, and false imprisonment

with a dangerous weapon, a violation of La.R.S. 14:46.1. A preliminary hearing

was held on September 6, 2013, following which the trial court found probable

cause to charge Defendant. On June 9, 2014, Defendant filed a motion in limine,

wherein Defendant requested that the State be precluded from introducing DNA

evidence, surveillance videos, or testimony regarding same. A hearing was held on

June 9, 2014, following which the trial court denied the motion.

Trial commenced on June 10, 2014. Defendant was found guilty by a jury

on the charge of armed robbery and false imprisonment with a dangerous weapon.

However, the jury reduced the charge of theft of a motor vehicle over $1500.00 to

unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4.

On August 5, 2014, Defendant filed a motion for new trial. The matter was

heard on the day of sentencing, August 6, 2014. Following argument, the trial

court denied the motion. Defendant waived all time delays, and the trial court

sentenced him to thirty years of imprisonment at hard labor, without benefit of

probation, parole, or suspension of sentence for the offense of armed robbery, one

year of imprisonment at hard labor for the offense of unauthorized use of a motor

vehicle, and five years of imprisonment at hard labor for the offense of false

imprisonment with a dangerous weapon. All the sentences were ordered to be

served consecutively for a total of thirty-six years imprisonment. Defendant filed a

motion to reconsider sentence. A hearing was held on March 4, 2014, and

following arguments, the trial court denied the motion.

Defendant has perfected a timely appeal, wherein he alleges four

assignments of error: 1) The trial court erred when it denied Defendant‘s motion to

preclude certain evidence from trial; 2) The evidence was insufficient to sustain the

jury‘s verdicts; 3) The convictions for armed robbery and false imprisonment with

a dangerous weapon in this case constituted double jeopardy; and 4) The sentences

were constitutionally excessive.

FACTS

On the morning of April 12, 2012, Defendant entered the store Tiger Nation

in Lake Charles. He robbed the victim, Rebecca Stains, at gunpoint. He then tied

her up and left her on the bathroom floor. Shortly thereafter, he returned and

demanded the keys to her car and the pin number to her credit card.

ERRORS PATENT

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

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

one error patent involving the jury‘s verdict as to count two and one error patent

regarding the trial court‘s advisement of the time period for filing post-conviction

relief. We will first address the error patent regarding the jury‘s verdict on count

two.

First Error Patent as to Jury’s Verdict on Count Two

For count two, the Defendant was charged with ―theft of a motor vehicle

valued over $1500.00.‖ The jury returned a verdict, however, of ―unauthorized use

of a motor vehicle.‖ This court finds the jury‘s verdict was non-responsive.1 A list

of responsive verdicts for ―theft of a motor vehicle‖ is not provided for in La.Code

1
The return of a non-responsive verdict by the jury is to be refused by the trial court in
accordance with La.Code Crim.P. art. 813 and is discoverable as an error patent. See State v.
Thibodeaux, 380 So.2d 59 (La.1980).

2

Crim.P. art. 814. Thus, the trial court should have used La.Code Crim.P. art. 815

to determine the appropriate responsive verdicts. The trial court and the parties

apparently believed, however, that the responsive verdicts for ―theft,‖ which are

provided for in La.Code Crim.P. art. 814, should be used as a guide.

The responsive verdicts for ―theft‖ are provided for in La.Code Crim.P. art.

814(26). The trial court used La.Code Crim.P. art. 814(26) as a guide when it gave

the following responsive verdicts to the jury in the present case:

1. Theft of a motor vehicle having a value over $1500.
2. Attempted theft of a motor vehicle having a value over $1500.
3. Theft of a motor vehicle having a value over $500 but less than
$1500.
4. Attempted theft of a motor vehicle having a value over $500
but less than $1500.
5. Theft of a motor vehicle having a value of less than $500.
6. Attempted theft of a motor vehicle having a value of less than
$500.
7. Unauthorized use of a motor vehicle.
8. Attempted unauthorized use of a motor vehicle.
9. Not guilty.

Although ―theft‖ is obviously a similar offense to ―theft of a motor vehicle,‖

―theft of a motor vehicle‖ is not an offense specifically listed in La.Code Crim.P.

art. 814. Thus, La.Code Crim.P. art. 815 controls the responsive verdicts that

should have been given in the present case. It states:

In all cases not provided for in Article 814, the following
verdicts are responsive:

(1) Guilty;

(2) Guilty of a lesser and included grade of the offense even
though the offense charged is a felony, and the lesser offense a
misdemeanor; or

(3) Not Guilty.

The only way ―unauthorized use of a motor vehicle‖ can be considered a

responsive verdict of ―theft of a motor vehicle over $1500.00‖ is if ―unauthorized

3

use of a motor vehicle‖ is considered a lesser and included offense of ―theft of a

motor vehicle over $1500.00‖ under La.Code Crim.P. art. 815(2). Under La.Code

Crim.P. art. 815(2), the general test for determining whether an offense is a lesser

and included offense of the offense charged is as follows:

[T]he test is whether the definition of the greater offense necessarily
includes all the elements of the lesser. Stated in another way for
practical application, this merely means that, if any reasonable state of
facts can be imagined wherein the greater offense is committed
without perpetration of the lesser offense, a verdict for the lesser
cannot be responsive.

State v. Simmons, 422 So.2d 138, 142 (La.1982) (quoting State v. Poe, 214 La.

606, 38 So.2d 359, 363 (1948), (on reh‘g)), superseded by statute on other grounds

as stated in State v. Mallett, 552 So.2d 28 (La.App. 3 Cir. 1989), writ denied, 556

So.2d 1258, and writ denied, 558 So.2d 567 (1990) (italics deleted).

At the time of the commission of the present offense, ―theft of a motor

vehicle‖ (the offense for which the Defendant was charged) provided in pertinent

part:

A. 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

(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.

....

C. (1) Whoever commits the crime of theft of a motor
vehicle when the misappropriation or taking amounts to a sum of one

4

thousand five hundred dollars or more shall be imprisoned, with or
without hard labor, for not more than ten years, or may be fined not
more than three thousand dollars, or both.

(2) Whoever commits the crime of theft of a motor vehicle
when the misappropriation or taking amounts to a sum of five hundred
dollars or more but less than one thousand five hundred dollars shall
be imprisoned, with or without hard labor, for not more than five
years, or may be fined not more than two thousand dollars, or both.

(3) Whoever commits the crime of theft of a motor vehicle
when the misappropriation or taking amounts to a sum of less than
five hundred dollars shall be imprisoned for not more than six months,
or may be fined not more than one thousand dollars, or both.

La.R.S. 14:67.26.

―Unauthorized use of a motor vehicle,‖ the crime for which the Defendant

was found guilty, provides:

A. 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.

B. Whoever commits the crime of unauthorized use of a
motor vehicle shall be fined not more than five thousand dollars or
imprisoned with or without hard labor for not more than ten years or
both.

La.R.S. 14:68.4.

Although this court has found no cases specifically addressing whether

―unauthorized use of a motor vehicle‖ is a lesser included offense (and therefore

responsive under La.Code Crim.P. art. 815) of ―theft of a motor vehicle,‖ this court

has found a small discussion of the issue in the criminal jury instructions of the

Louisiana Civil Law Treatise. The particular offense being addressed in this

section is ―theft of a motor vehicle.‖ The author‘s comment states the following:

The responsive verdicts are governed by C.Cr.P. art. 815, which
includes all lesser included offenses. Unauthorized use of the motor
vehicle is arguably responsive since the taking without intent to

5

permanently deprive would constitute unauthorized use. However, the
penalty for that offense is the same imprisonment and a greater
amount of fine. It is therefore arguable that unauthorized use of a
motor vehicle is not a lesser included offense. Unauthorized use of a
motor vehicle is not value graded and unauthorized use of a movable
is not value graded in the same manner and involves all movables, not
merely vehicles. Thus, the authors do not recommend inclusion of
either as a responsive offense.

17 Louisiana Civil Law Treatise, Criminal Jury Instructions § 10:119 (3d ed.)

(citations omitted). The authors suggested the following responsive verdicts for

―theft of a motor vehicle‖:

Guilty
Guilty of theft of a motor vehicle valued at . . . .
Guilty of attempted theft of a vehicle [valued at . . . .
Not Guilty

Id. (alteration in original).

Although the author‘s comment discussed above suggests that ―unauthorized

use of a motor vehicle‖ should not have been given as a responsive verdict in this

case, we feel further discussion is warranted. First, we will examine whether under

the Simmons rationale, the definition of all of the elements of the greater offense

(theft of a motor vehicle) necessarily includes all of the elements of the lesser

offense (unauthorized use of a motor vehicle). We note that when the trial court

defined the greater offense (theft of a motor vehicle), it did not give the full

definition of the offense as set forth in La.R.S. 14:67:26. Rather, the trial court

instructed the jury as follows:

Count two:
The defendant is also charged with the theft of a motor vehicle
having a value of $1500 or more. The State of Louisiana defines theft
of a motor vehicle having a value of $1500 or more as the taking of a
motor vehicle which belongs to another, without the owner‘s consent,
with the intent to permanently deprive the owner of the motor vehicle.

6

This instruction corresponds with the first full paragraph of ―theft of a motor

vehicle‖ La.R.S. 14:67.26 (A)(1), minus the ―fraudulent practices‖ language. Even

though there are other ways in which ―theft of a motor vehicle‖ can be committed

under La.R.S. 14:67.26, the trial court apparently believed the only applicable

elements were those for which it instructed the jury. According to the supreme

court‘s opinion in State v. Amos, 02-1547 (La. 6/18/03), 849 So.2d 498, it was

proper for the trial court to conform the definition of ―theft of a motor vehicle‖ to

the particular circumstances of the acts charged against Defendant. Thus, as did

the supreme court in Amos, we will compare the elements of ―theft of a motor

vehicle,‖ for which the jury was instructed in the present case, with the elements of

―unauthorized use of a motor vehicle‖ in analyzing whether ―unauthorized use of a

motor vehicle‖ is a lesser and included offense of ―theft of a motor vehicle.‖

Aside from the value of the motor vehicle, the jury in the present case was

instructed as to the following elements for ―theft of a motor vehicle‖:

1. Taking of a motor vehicle that belongs to another;

2. Without the owner‘s consent; and

3. With the intent of permanently depriving the owner of the motor vehicle.

The pertinent elements of ―unauthorized use of a motor vehicle‖ are as

follows:

1. Intentional taking or use of a motor vehicle that belongs to another;

2. Without the owner‘s consent; and

3. Without the intent of permanently depriving the owner of the motor
vehicle.

La.R.S. 14:68.4.

7

The chief difference between the two offenses is the intent to permanently

deprive the owner of the motor vehicle. Addressing this difference in the context

of simple ―theft‖ and ―unauthorized use of a movable,‖ the supreme court found

that even if the evidence showed the defendant intended to permanently deprive

the owner of the movable, the defendant could still be found guilty of unauthorized

use of the movable:

The defendant further contends that, if any criminal intent at all
is proved, it is to deprive the owner of his property permanently, not
temporarily. Thus, he argues, the crime of theft, La.R.S. 14:67 may
have been proved, but not that of unauthorized use of movables,
La.R.S. 14:68: The chief difference between theft and the latter lesser
crime is the lack of an intention in the latter case to deprive the owner
permanently of his property.

However, La.R.S. 14:5 provides: ―An offender who commits
an offense which includes all the elements of other lesser offenses,
may be prosecuted for and convicted of either the greater offense or
one of the lesser and included offenses. * * * ‖ . . .

Unauthorized use is a lesser and included offense of theft,
because theft includes all the elements of unauthorized use – plus the
intent to deprive permanently (instead of only temporarily) the owner
of his property. Unauthorized use is, in fact, a responsive verdict to
theft.

Accordingly, any evidence that the accused took the property of
another with the intent to deprive him of it permanently (i.e., theft) is
likewise sufficient to prove the lesser offense here charged (i.e.,
unauthorized use), even though in the latter case the requisite intent is
only to deprive the owner temporarily of his property. We therefore
find no merit to the defendant‘s contention.

State v. Reeves, 342 So.2d 605, 607-08 (La.1977) (citations omitted). Considering

the supreme court‘s opinion in Reeves, we find the difference in the intent

requirement did not prevent the crime of ―unauthorized use of a motor vehicle‖

from being a lesser and included offense of ―theft of a motor vehicle‖ in the

present case.

8

A bit more problematic, however, is the fact (as noted by the author‘s

comment discussed above) that the penalty for ―unauthorized use of a motor

vehicle‖ is not less than the penalty for ―theft of a motor vehicle.‖ The penalty for

the highest grade of ―theft of a motor vehicle‖ is imprisonment with or without

hard labor for not more than ten years and/or a fine of not more than $3000.00.

La.R.S. 14:67.26(C)(1). The penalty for ―unauthorized use of a motor vehicle‖ is

imprisonment with or without hard labor for not more than ten years and/or a fine

of not more than $5000.00. La.R.S. 14:68.4. In a recent case, the supreme court

questioned whether an offense could actually be considered a lesser offense when

the penalty was not lesser by stating:

Furthermore, it is not clear in what sense molestation can be
considered a lesser offense when compared to aggravated incest, at
least in the present case. When the victim is under the age of 13
years, both offenses are punishable by imprisonment at hard labor for
not less than 25 years and not more than 99 years with at least 25
years of the sentence to be served without parole eligibility.

State v. Graham, 14-1801, p. 3 (La. 10/14/15), ___ So.3d ___, ___. Considering

the exposure to a greater fine for a conviction of unauthorized use of a motor

vehicle, we find that ―unauthorized use of a motor vehicle‖ is actually a greater,

not lesser, offense than ―theft of a motor vehicle.‖

Another reason cited in the author‘s comment in support of finding

―unauthorized use of a motor vehicle‖ is not responsive to ―theft of a motor

vehicle‖ is the fact that the penalty for ―unauthorized use of a motor vehicle‖ is not

value-graded while the penalty for ―theft of a motor vehicle‖ is. We have not

found any cases discussing this issue, but note that all of the value-graded offenses

listed in La.Code Crim.P. art. 814 contain value-graded responsive verdicts.

9

This court finds, as the author‘s comment discussed above suggested, that

because ―unauthorized use of a motor vehicle‖ does not contain a lesser penalty

than ―theft of a motor vehicle‖ and because ―unauthorized use of a motor vehicle‖

is not value-graded as is ―theft of a motor vehicle,‖ ―unauthorized use of a motor

vehicle‖ is not a lesser and included offense of ―theft of a motor vehicle.‖ Thus,

―unauthorized use of a motor vehicle‖ can not be considered a responsive verdict

of ―theft of a motor vehicle‖ under La.Code Crim.P. art. 815. Consequently, the

jury‘s verdict in this case is non-responsive to the offense charged.

The record contains no objection to the responsive verdicts given by the trial

court in the present case. Nonetheless, the return of a non-responsive verdict

constitutes an error patent on the face of the record and requires reversal of

Defendant‘s conviction. State v. Campbell, 95-1409 (La. 3/22/96), 670 So.2d

1212. Accordingly, as ―unauthorized use of a motor vehicle‖ is not responsive to

―theft of a motor vehicle,‖ Defendant‘s conviction as to ―unauthorized use of a

motor vehicle‖ should be reversed and the sentence for that offense set aside.

In light of our above finding that the jury‘s verdict was non-responsive in the

present case, the next question is whether an acquittal should be entered as to the

charged offense of ―theft of a motor vehicle over $1500.00.‖ Although the

supreme court has rendered several opinions finding remand for a new trial is the

appropriate remedy when the jury returns a non-responsive verdict,2 the supreme

2
In Thibodeaux, 380 So.2d 59, the supreme court, without any discussion as to whether
an acquittal should be entered for the charged offense, determined that the jury‘s return of a non-
responsive verdict required the setting aside of the conviction and sentence and remand of the
case for a new trial. In State v. Mayeux, 498 So.2d 701 (La.1986), the supreme court again
addressed a non-responsive verdict issue and again found that remand for a new trial was the
proper remedy. This time, however, the supreme court discussed acquittal as a remedy but found
no acquittal of the charged offense was necessary since the non-responsive verdict was a ―non-
crime.‖ Later, in Campbell, 670 So.2d 1212, the supreme court found no acquittal of the charged

10

court recently came to a different conclusion when the jury returned a verdict for a

non-responsive offense. Graham, ___ So.3d ___. Graham was charged with

aggravated incest, but the jury returned a verdict of molestation of a juvenile. Id.

After deciding that molestation of a juvenile was not a lesser and included offense

of aggravated incest, and, thus, a non-responsive verdict under La.Code Crim.P.

art. 815, the supreme court discussed the appropriate remedy as follows:

The jury was given a full opportunity to return a verdict of
―guilty of aggravated incest‖ but instead returned a verdict of ―guilty
of molestation of a juvenile,‖ which the jury was instructed was a
lesser degree of the offense charged. Louisiana Code of Criminal
Procedure article 598(A) provides that ―[w]hen a person is found
guilty of a lesser degree of the offense charged, the verdict or
judgment of the court is an acquittal of all greater offenses charged in
the indictment and the defendant cannot thereafter be tried for those
offenses on a new trial.‖ See also Price v. Georgia, 398 U.S. 323,
328-30, 90 S.Ct. 1757, 1761, 26 L.Ed.2d 300 (1970) (―[T]his Court
has consistently refused to rule that jeopardy for an offense continues
after an acquittal, whether that acquittal is express or implied by a
conviction on a lesser included offense when the jury was given a full
opportunity to return a verdict on the greater charge.‖) (footnote
omitted). . . .

...

The proceedings were rendered fundamentally unfair when the
state was permitted to add ―guilty of molestation of a juvenile‖ as a
responsive verdict after all evidence had been presented. Molestation
of a juvenile is not a lesser and included grade of the offense of
aggravated incest because the evidence sufficient to support

offense was necessary when the jury returned a non-responsive verdict that was actually, by
definition, the same offense as the offense charged.

Since Campbell, this court has issued the following opinions regarding non-responsive
jury verdicts. In State v. Hurst, 10-1204 (La.App. 3 Cir. 4/13/11), 62 So.3d 327, writ denied, 11-
975 (La.10/21/11), 73 So.3d 383, this court found that an acquittal should be entered as to the
charged offense when the judge returned a non-responsive verdict that was also a non-crime in
Louisiana. This court distinguished both Campbell and Mayeux because the trial judge (the fact-
finder) in Hurst specifically stated that he had a reasonable doubt as to whether Hurst committed
the charged offense. Most recently, in State v. Blade, 12-721 (La.App. 3 Cir. 2/6/13)
(unpublished opinion) (cited at 2013 WL 440573), this court relied upon the supreme court‘s
original pronouncement in Thibodeaux and found the appropriate remedy for the jury‘s return of
a non-responsive verdict was remand for further proceedings. The jury‘s verdict in Blade was
for aggravated assault with a firearm, a designated offense in Louisiana.

11

conviction of aggravated incest may not necessarily support
conviction for molestation of a juvenile. Furthermore, defendant
objected to the addition of the responsive verdict and the evidence
presented at trial is insufficient to support the jury‘s return of that
verdict. Nonetheless, the jury‘s return of what it was instructed was a
lesser responsive verdict is an implied acquittal of the charge of
aggravated incest, which ended defendant‘s jeopardy and is a bar to a
subsequent prosecution.

For the reasons above, the matter is remanded to the trial court
to enter a post-verdict judgment of acquittal.

Id. (alterations in original).

In reaching this conclusion, the supreme court distinguished two of its prior

cases – Mayeux and Campbell. The supreme court distinguished Mayeux by

stating the following:

In State v. Mayeux, 498 So.2d 701 (La.1986), this Court nevertheless
held that the jury‘s return of an illegal verdict for attempted
aggravated battery, purportedly a lesser and included offense listed by
the court as a responsive verdict but a non-crime under Louisiana law,
―operate[d] neither as a conviction nor acquittal‖ for double jeopardy
purposes. Id. at 705. Therefore, the Court in Mayeux concluded that
―the appropriate action is to set aside the conviction and remand for
retrial.‖ Id.

Defendant in Mayeux, however, subsequently obtained habeas
relief from a federal district court. Mayeux v. Belt, 737 F.Supp. 957
(W.D. La. 1990). That court, relying on Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), found:

Even though the verdict of the jury at Mayeux‘s first trial
could operate neither as a conviction nor acquittal of the
non-crime of ―attempted aggravated battery‖, there is no
reason why it could not operate as an acquittal of the
charge of aggravated battery, because the judge‘s
instructions so directed. Even though the judge‘s
instructions concerning a possible verdict of ―attempted
aggravated battery‖ were egregiously erroneous, that
judicial error does not give the State a basis for retrying
Mr. Mayeux.

Mayeux, 737 F.Supp. at 961-62. Regardless of whether this Court‘s
decision in Mayeux remains viable, defendant here was not found
guilty of a non-crime. He was convicted of molestation of a juvenile,
a crime established in Revised Statute 14:81.2.

12

Id. at ____. (alteration in original).

As in Graham, the present case is also distinguishable from Mayeux because

the jury‘s verdict in the present case was not a non-crime. Unauthorized use of a

motor vehicle, the jury‘s verdict in the present case, is a viable crime in Louisiana.

La.R.S. 14:68.4.

The supreme court then distinguished Campbell by stating:

In State v. Campbell, 95-1409 (La.3/22/96), 670 So.2d 1212,
this Court found that a trial court‘s error in charging a jury they could
find defendant guilty of jury tampering or attempted jury tampering
―rendered the verdicts insolubly ambiguous‖ because ―the offense of
jury tampering encompasses the attempt to influence jurors for corrupt
purposes.‖ Campbell, 95-1409 at pp. 2-5, 670 So.2d at 1213-14. In
the present case, however, there is no such ambiguity. Given the
state‘s failure to prove familial affinity between the defendant and the
alleged victim at the time of the incident–an essential element of
aggravated incest–the jury implicitly acquitted defendant of that
charge by returning a verdict of guilty of molestation of a juvenile.
The jury‘s implicit acquittal is a bar to any subsequent prosecution for
aggravated incest. See Price v. Georgia, supra; see also Green v.
United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199
(1957) (verdict of acquittal is final, ―ending a defendant‘s jeopardy,
and even when ‗not followed by any judgment, is a bar to a
subsequent prosecution for the same offence.‘ ‖) (quoting United
States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300
(1896)).

Id. at ____.

The present case is likewise distinguishable from Campbell. In Campbell,

the supreme court found the jury‘s return of a verdict for attempted jury tampering

was ambiguous since attempted jury tampering is actually the same offense as the

charged offense of jury tampering:

Under Louisiana law, attempted jury tampering is jury tampering, the
crime charged in the bill of information. . . .[W]e cannot say that the
jury‘s return of the purportedly lesser verdicts of attempt necessarily
and implicitly acquitted relators of any material element of the
charged crimes, or that the verdicts necessarily represented an
expression of jury lenity despite the weight of the evidence presented.

13

The verdicts rationally conformed to the conduct charged in the bill of
information and the evidence presented at trial although they were
otherwise illegal and should not have been charged by the trial
court.
The verdict in a criminal case must clearly convey the intent of
the jury. La.C.Cr.P. art. 810. The trial court‘s error in charging the
responsive verdicts in this case rendered the jury‘s verdicts insolubly
ambiguous, and we cannot discount the possibility that jurors meant to
exercise lenity by returning the purportedly lesser verdicts of attempt.
Because of the confusion caused by the error in listing the responsive
verdicts in this case, the verdicts returned by the jury did not clearly
convict or acquit relators of the charged offenses. In this context, we
do not believe that retrial of relators under a correct set of instructions
for the charged crime of jury tampering would constitute double
jeopardy.

Campbell, 670 So.2d at 1214.

Unlike the jury‘s verdict in Campbell, the jury‘s verdict in the present case,

―unauthorized use of a motor vehicle,‖ is not the same as the offense charged,

―theft of a motor vehicle over $1500.00.‖ As previously discussed, ―theft of a

motor vehicle over $1500.00‖ requires the intent to permanently deprive while

―unauthorized use of a motor vehicle‖ does not. Thus, we find the ambiguity that

was present in Campbell was not present in the instant case.

Additionally, by finding Defendant guilty of ―unauthorized use of a motor

vehicle,‖ the jury in the present case evidently found the State failed to prove

Defendant intended to permanently deprive the victim of her vehicle since

Defendant abandoned the vehicle at a carwash. Thus, as in Graham, we find the

jury‘s verdict of ―unauthorized use of a motor vehicle‖ was an implicit acquittal of

the charged offense of ―theft of a motor vehicle over $1500.00‖ and serves as a bar

to any subsequent prosecution of Defendant for ―theft of a motor vehicle over

$1500.00.‖ Accordingly, this court must enter an acquittal of the charged offense

– theft of a motor vehicle valued at $1500.00.

Second Error Patent as to La.Code Crim.P. art. 930.8 Advice

14

Furthermore, the trial court failed to clearly advise Defendant as to the time

limitations for filing post-conviction relief. According to La.Code Crim.P. art.

930.8, the prescriptive period for filing post-conviction relief is two years, and it

begins to run when a defendant‘s conviction and sentence become final under the

provisions of La.Code Crim.P. arts. 914 or 922. The court minutes indicate that

the trial court ―advise[d] the defendant of the prescriptive period for filing for post-

conviction relief.‖ The transcript indicates, however, that the trial court informed

Defendant that he had ―two years from today‘s date and the conviction becoming

final to file for post-conviction relief.‖ Thus, it is not clear whether the trial court

advised Defendant that he had two years from the date of sentencing, two years

from the date the conviction becomes final, or both, to file his application for post-

conviction relief. Thus, this court hereby instructs the trial court to inform

Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to Defendant within ten days of the rendition of this

opinion and to file written proof in the record that Defendant received the notice.

ASSIGNMENT OF ERROR NUMBER TWO

We will address this assignment of error first since, should there be merit to

Defendant‘s claim, he would be entitled to an acquittal and the remaining

assignments of error would be moot. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct.

970 (1981); State v. Hearold, 603 So.2d 731 (La.1992). The constitutional standard

for testing the sufficiency of the evidence 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 beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).

15

Defendant‘s second assignment of error asserts that the evidence submitted

to the jury was insufficient to sustain the verdicts of armed robbery or false

imprisonment with a dangerous weapon. His argument is based primarily on the

fact that the victim was not able to identify him as the man who robbed her. He

argues that except for DNA found on the mask the robber wore, there was nothing

otherwise to connect him with the crimes. Defendant further points out that while

his DNA was the major contributor, there was a minor DNA contributor also found

in the mask.

Armed robbery is defined as ―the taking of anything of value belonging to

another from the person of another or that is in the immediate control of another,

by use of force or intimidation, while armed with a dangerous weapon.‖

La.R.S.14:64(A). ―False imprisonment while armed with a dangerous weapon is

the unlawful intentional confinement or detention of another while the offender is

armed with a dangerous weapon.‖ La.R.S. 14:46.1(A).

Rebecca Stains, owner of Tiger Nation, a store located in the Target parking

lot area on West Prien Lake Road, opened her store on April 12, 2012, at 10:00

a.m. Within minutes after the store was opened, she saw a man walking rapidly

towards the store. She stated at the time, she did not see a mask, but he was

wearing a workout outfit, gray windpants and a blue windbreaker. She

remembered the sound of the material. He marched into the store and pointed a

gun at her. He told her to ―[g]et down.‖ She said she did not see his face; she was

focused on the gun. He pushed her against the wall and then pulled her down. He

pulled her to the cash register while demanding repeatedly to give him the money.

She said he made the statement:, ―‗You better have more than this.‘ He said, ‗I got

to get my wife to DC‘ or ‗my girl to DC.‘‖ When she handed him the cash she had

16

below the counter, he told her not to look at him. She said he had on a mask ―like

a white mask a doctor wears[,]‖ and a hood pulled down over his face. Id.

Ms. Stains said that the robber then took her to the bathroom where he

bound her hands behind her back with zip ties. The robber then left her on the

bathroom floor. However, he returned a few minutes later and demanded her car

keys and credit cards. She told him where her keys were and that her cards were in

her purse which was under the seat of the car. He left again but returned a second

time to demand her pin number. Ms. Stains stated she lay in the bathroom for a

long time. Eventually she was able to get loose of the zip ties and called the

police.

Ms. Stains‘ car was located shortly thereafter at Don‘s Car Wash on Nelson

Road. The car wash‘s surveillance video showed the suspect leaving the car and

heading south. A search of the area located a windbreaker jacket and windpants,

zip ties, a baseball hat, and black Powerline BB pistol used in the robbery in a

dumpster behind Que Pasa Restaurant on Nelson Road. The surveillance tape from

the restaurant showed a man walking rapidly towards the dumpster and tossing a

bundle into the dumpster. A mask like the types of mask doctors wear was located

in the pocket of the windbreaker along with Ms. Stains‘ cellphone. Ms. Stains

identified the windbreaker, windpants, gun, and mask as those used by the robber.

She did not remember a baseball hat.

Rachelle Arceneaux, an independent contract courier, testified that on the

morning of April 12, 2012, she was parked in the parking lot of MidSouth Bank,

located across the street from Don‘s Car Wash on Nelson Road, at approximately

10:21 a.m., when a man approached her vehicle. The man, who looked sweaty and

―messed-up‖ asked her for a ride. She said he was carrying a black jacket and she

17

thought he may have had a gun. She told him she was not allowed to give rides.

He left and walked behind the car wash towards Taco Bell. When she went into

the bank she told one of the tellers about the man in the parking lot. Later in the

afternoon, she returned to the MidSouth Bank and was told that the man she saw

may have committed a crime and that the police wanted to speak with her. She

spoke with an officer. The next day she saw a picture of the man on KPLC news

regarding the robbery. The picture was a still picture taken from the surveillance

video from the Taco Bell located on Nelson Road. She called the detective and

told him that was the man who asked her for a ride. Ms. Arceneaux viewed the

surveillance video from Taco Bell and identified Defendant in court as the man

who approached her on the morning of April 12, 2012.

Sergeant Richard Harrell, with the Lake Charles Police Department, testified

he sent the clothing, the mask, and the gun to Southwest Louisiana Criminalistic

Laboratory to test for DNA and fingerprints. There was no discernible fingerprint

found on the BB pistol. However, in January 2013, the sergeant was informed that

identifiable DNA was located on the mask. On February 22, 2013, the sergeant

was informed that a match to the DNA had been found through CODIS (Combined

DNA Index System), and that was Defendant‘s. Defendant was eventually located

in Texas and extradited to Lake Charles.3 In September 2013, a buccal swab was

taken from Defendant and his DNA was matched with the DNA found on the

mask.

It was also discovered that Defendant was in Lake Charles on the date of the

robbery. Paula Arabie, the collection manager for L‘Auberge Casino, testified that

Defendant had been ―comped‖ a room at the casino for April 9 through 12, 2012.

3
Defendant was extradited to Lake Charles in March 2013.

18

She explained that Defendant, a frequent gambler, had a membership card and that

his transactions were kept and recorded for the ―comp‖ benefits. She testified that

he last used his membership card at 4:39 a.m. on April 12, 2012, with winnings of

a little over $700.00, and even though he had one night‘s comp left, he checked out

of the hotel that same day.

As noted above, Defendant appends his argument to the fact that there was a

second DNA—a minor contributor—located in the mask. He notes that there was

no evidence connecting him to the victim‘s car, the BB pistol, the items located in

the dumpster, and no eyewitness to his robbing the victim at gunpoint. He argues

that there was not sufficient evidence to convict him beyond a reasonable doubt

that he was the man who robbed Ms. Stains at gunpoint; therefore, he was also not

guilty of false imprisonment with a dangerous weapon.

We note that except for the DNA evidence, there is no direct evidence

connecting Defendant to the crime. However, the direct and circumstantial

evidence supported the jury‘s verdict. ―When analyzing circumstantial evidence,

La.R.S. 15:438 provides that the finder of fact must be satisfied that the overall

evidence excludes every reasonable hypothesis of innocence.‖ State v. McLean,

525 So.2d 1251, 1255 (La.App. 1 Cir.), writ denied, 532 So.2d 130 (La.1988). In

State v. Williams, 13-497, pp. 4-5 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1240,

writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024, this court discussed direct and

circumstantial evidence as follows:

―Evidence may be either direct or circumstantial.‖ State v.
Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551,
writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, --- U.S.
----, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the
conviction is based on direct evidence or solely on circumstantial
evidence, the review is the same under the Jackson v. Virginia
standard. State v. Williams, 33,881 (La.App. 2 Cir. 9/27/00), 768

19

So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983)), writ
denied, 00-[30]99 (La.10/5/01), 798 So.2d 963. Circumstantial
evidence is that where the main fact can be inferred, using reason and
common experience, from proof of collateral facts and circumstances.
Id. Where the conviction is based on circumstantial evidence, in order
to convict, ―assuming every fact to be proved that the evidence tends
to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.‖ La.R.S. 15:438.

In State v. Chism, 436 So.2d 464, 469 (La.1983) (citations
omitted), the supreme court discussed the use of circumstantial
evidence, stating:

Circumstantial evidence involves, in addition to
the assertion of witnesses as to what they have observed,
a process of reasoning, or inference by which a
conclusion is drawn. Like all other evidence, it may be
strong or weak; it may be so unconvincing as to be quite
worthless, or it may be irresistible and overwhelming.
There is still no man who would not accept dog tracks in
the mud against the sworn testimony of a hundred eye-
witnesses that no dog passed by. The gist of
circumstantial evidence, and the key to it, is the
inference, or process of reasoning by which the
conclusion is reached. This must be based on the
evidence given, together with a sufficient background of
human experience to justify the conclusion.

Consequently, before a trier of fact can decide the
ultimate question of whether a reasonable hypothesis of
innocence exists in a criminal case based crucially on
circumstantial evidence, a number of preliminary
findings must be made. In addition to assessing the
circumstantial evidence in light of the direct evidence,
and vice versa, the trier of fact must decide what
reasonable inferences may be drawn from the
circumstantial evidence, the manner in which competing
inferences should be resolved, reconciled or
compromised; and the weight and effect to be given to
each permissible inference. From facts found from
direct evidence and inferred from circumstantial
evidence, the trier of fact should proceed, keeping in
mind the relative strength and weakness of each
inference and finding, to decide the ultimate question of
whether this body of preliminary facts excludes every
reasonable hypothesis of innocence.

20

Monica Quaal, a forensic analyst with Southwest Louisiana Criminalistic

Laboratory, who qualified as an expert in DNA analysis, testified at trial that she

tested the mask for DNA evidence. After explaining the process, she stated she

found two contributors to the DNA located in the mask, one major contributor and

one minor contributor. She went on to explain that the minor DNA profile

contained insufficient amount for a comparison. The State hypothesized that the

minor DNA could have found its way into the jacket when someone else, for

whatever reason, put their hand in the pocket where the mask was located, and Ms.

Quaal agreed. She stated ―[i]t could have been what they call tertiary transfer

which means I touched this and then they‘re gonna [sic] put the mask to there

(indicating), and then they‘re gonna [sic] get some of that DNA from setting it

there.‖ However, while explaining ―reasonable degree of scientific certainty,‖ she

testified that unless Defendant had a twin brother, it was a one in four quadrillion

chance that the DNA belonged to someone else. In brief, the State argues:

The defendant argues that Ms. Quaal testified that ―the minor
contributor of DNA to the mask could have possibly been the wearer
of the mask.‖ (Defendant‘s brief, p. 6). This argument shifts this
Honorable Court from the truth of the matter: another person could
have worn the mask, but the defendant definitely wore the mask. And
the fact is that his DNA is found on one of the articles described by
the victim, in a dumpster near where the victim‘s stolen car was
found. The defendant, a Texas resident, was in Lake Charles at the
time of the robbery (according to the casino records), and was seen by
Ms. Arceneaux down the street on the day of the robbery. There is no
other reasonable explanation. All the evidence points to the defendant
and the only logical conclusion; that the defendant, while wearing a
particulate mask, robbed Mr. Stains, stole her car and left it at the car
wash, dumping his clothes in a nearby dumpster.

Louisiana jurisprudence has consistently held that the premise of Jackson v.

Virginia is rationality and that ―irrational decisions to convict will be overturned,

rational decisions to convict will be upheld, and the actual fact finder‘s discretion

21

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). 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, and State v. Thompson, 13-194

(La.App. 3 Cir. 10/9/13), 123 So.3d 360, writ denied, 13-2671 (La. 7/31/14), 146

So.3d 544.

Considering the totality of the evidence and the circumstances in a light

most favorable to the State, this court finds that the evidence proved beyond a

reasonable doubt, and to the exclusion of every reasonable hypothesis of

innocence, that Defendant robbed the victim at gunpoint and falsely imprisoned

her with the use of a dangerous weapon.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the State did not disclose exculpatory evidence until

four days prior to trial. On the morning trial commenced, Defendant filed a motion

in limine, wherein he asserted that the State failed to disclose a report from the

Southwest Louisiana Criminalistics Laboratory which indicated that there was a

second DNA contributor located on the mask the robber wore when he robbed Ms.

Stains. He asserted at the motion in limine hearing that had the information been

disclosed to him at the time the report was issued, January 28, 2013, there was a

reasonable probability that the trial court would not have found probable cause to

charge him with the crimes following the preliminary examination hearing and that

he would not have voluntarily given a sample of his DNA but would have

requested funds to have the mask retested for DNA. For these reasons, Defendant

22

asserts that the trial court should have suppressed the reports and that because the

trial court failed to do so, he did not receive a fair trial.

In State v. Taylor, 12-25, pp. 18-20 (La.App. 5 Cir. 6/28/12), 97 So.3d 522,

535-36, the fifth circuit discussed alleged exculpatory evidence not disclosed as

follows:

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-
97, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that
the suppression by the State of evidence favorable to the accused after
it receives a request for it violates a defendant‘s due process rights
where the evidence is material to either guilt or punishment, without
regard to the good or bad faith of the prosecutors. See also State v.
Bright, 02-2793, pp. 5-6 (La.5/25/04), 875 So.2d 37, 41-42. The duty
to disclose is applicable even where there has been no request by the
accused. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392,
2399, 49 L.Ed.2d 342 (1976). The State‘s due process duty to disclose
applies to both exculpatory and impeachment evidence. United States
v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481
(1985); State v. Kemp 00-2228, p. 7 (La.10/15/02), 828 So.2d 540,
545. Brady also requires the disclosure of evidence concerning a
promise of leniency or immunity to a material witness in exchange for
his testimony at trial. Giglio v. United States, supra. See also State
ex rel. Guise v. State, 00-2185, p. 2 (La.10/15/02), 828 So.2d 557,
558.

Evidence is ―material‖ under Brady only if there is a reasonable
probability that the result of the proceeding would have been different
if the evidence had been disclosed to the defense. A reasonable
probability is one that is sufficient to undermine confidence in the
outcome. United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
A reviewing court determining materiality must ascertain ―not
whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy
of confidence.‖ Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555,
1566, 131 L.Ed.2d 490 (1995).

While the United States Supreme Court has emphasized the
prosecution‘s duty to disclose exculpatory evidence, it has not
specifically spoken on the timing of such disclosures. But the
Louisiana Supreme Court has held that late disclosure as well as non-
disclosure of exculpatory evidence may deprive the defendant of a fair
trial. Kemp, supra; State v. Williams, 448 So.2d 659, 665 (La.1984).
See also State v. Lande, 06-24, pp. 23-24 (La.App. 5 Cir. 6/28/06),

23

934 So.2d 280, 296, writ denied, 06-1894 (La.4/20/07), 954 So.2d
154.

Moreover, discovery violations are not grounds for reversal
unless they have actually prejudiced the defendant. State v. Garrick,
03-0137, p. 5 (La. 4/14/04), 870 So.2d 990, 993 (per curiam); State v.
Strickland, 398 So.2d 1062, 1067 (La.1981). Even a discovery
violation involving the State‘s failure to disclose exculpatory evidence
does not require reversal under the Due Process Clause ―unless the
nondisclosure was so serious that there is a reasonable probability that
the suppressed evidence would have produced a different verdict.‖
Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 1948, 144
L.Ed.2d 286 (1999).

In the current case, the chronology of events which was the basis of this

claim is as follows:

On January 28, 2013, the following report was issued, which stated that on

November 26, 2012, the laboratory received a sealed envelope that contained the

subject mask. In pertinent part, the report stated:

A mixed DNA STR profile consisting of at least two
contributors, most likely one major contributor and one minor
contributor was obtained from the swabbing of the particulate mask.
The major contributor DNA STR profile is from an unidentified male
individual and is not the same as the DNA STR profile obtained from
the reference buccal swabs of Rebecca Stains (item # 4). The
unidentified DNA profile was entered into the Combined DNA Index
System (CODIS) database and retained in the case file at the
Southwest Louisiana Criminalistics Laboratory for future comparison.
If a suspect is developed, a reference DNA sample will be required for
comparison purposes. The minor DNA STR profile contains an
insufficient amount of information for comparison purposes.

On February 22, 2013, the laboratory reported:

On 1/24/13, the major DNA profile obtained from the swabbing
of the particulate mask (item # 5) matched to Louisiana DNA
Database sample LSP08-017935. On 2/4/13, Louisiana DNA
Database sample LSP08A-017935 was identified as being obtained
from William A. Shupp, DOB 3/3/1971, SSN [redacted]. This
information is provided as an investigative lead. A reference DNA
sample from the above individual is required to be submitted to the
laboratory for confirmation of this match.

24

On September 6, 2013, a preliminary examination hearing was held. During

the hearing, after extensive testimony by Detective Harrell regarding what

evidence was available, the trial court asked if there was only one DNA sample

located in the mask.4 The Detective answered in the affirmative. The trial court

found probable cause to charge Defendant with the crimes.

On September 12, 2013, a sample of Defendant‘s DNA was taken and sent

to the criminalistics laboratory. On December 18, 2013, the laboratory reported

that ‗[t]he major contributor DNA STR profile obtained from the swabbing of the

inside of the mask (item # 5) is the same as the DNA STR profile obtained from

the reference buccal swab of William Shupp.‖

First, Defendant argued at the in limine hearing that he was not given the

January 28, 2013 report until four days prior to trial. He was not aware of the fact

that there was a second contributor; therefore, he did not have the time or resources

to prepare a proper defense accordingly. The State noted that it had not received

the report either. It was not until the prosecutor noticed that his file did not contain

a report of the CODIS match did he contact the laboratory and requested a copy of

the report. That was on June 5. He gave the report to the defense the following

day.

We find that there was no Brady violation in this case. While the evidence

was untimely, he did receive the information four days prior to trial. In State v.

Dozier, 97-1564 (La.App. 3 Cir. 5/20/98), 713 So.2d 729, writ denied, 98-1694

(La. 11/25/98), 729 So.2d 573, this court held that a late disclosure is not a true

Brady matter, rather the issue was the timeliness of the disclosure. Citing State v.

4
In the trial transcript and in the discussion regarding sufficiency of the evidence,
Detective Harrell is referred to as Sergeant Harrell.

25

Huls, 95-541 (La.App. 1 Cir. 5/29/96), 676 So.2d 160, writ denied, 96-1734 (La.

1/6/97), 685 So.2d 126, this court noted:

Disclosure of favorable evidence by the state must be
made at such a time as to allow the defense to use the
material effectively in the presentation of its case. State v.
Prudholm, 446 So.2d 729, 738 (La.1984). Not all cases
involving late disclosure of favorable evidence result in
reversible error. We must determine if the late disclosure
so prejudiced the defendant that he was denied his
constitutional right to a fair trial. See State v. Smith, 430
So.2d 31, 42 (La.1983). See also United States v.
Stephens, 964 F.2d 424, 435-36 (5th Cir.1992).

Dozier, 713 So.2d at 733.

Furthermore, the evidence was not willfully or inadvertently withheld from

Defendant, nor was the evidence exculpatory or of impeachment value. As pointed

out by the State, ―another person could have worn the mask, but the defendant

definitely wore the mask.‖ During discussions at the in limine hearing, the State

offered to continue trial so that Defendant could have additional testing done on

the mask to verify whether the minor contributor DNA could be matched and

whether it was his DNA located on the mask. However, Defendant declined a

continuance.

While Defendant further argues that had he known there was a second

contributor, he would not have submitted to a buccal swab, he does not explain

how voluntarily giving the buccal swab was prejudicial to his case. The buccal

swab was requested by the criminalistics laboratory as a reference to insure there

was no error. Furthermore, the State could have obtained a warrant for the buccal

swab, and even then, a warrant would not have been necessary. In State v.

Franklin, 11-1909, p. 2 (La. 12/16/11), 76 So.3d 423, 424, the supreme court held:

The collection of DNA from persons arrested and charged with a
crime but not convicted is now a matter of comprehensive federal and

26

state regulation, which authorize the taking of a DNA sample from
arrestees and pre-trial detainees in the same routine manner as the
taking of fingerprints and photographs[.]

Finally, Defendant argues that because Detective Harrell erroneously

advised the trial court at the preliminary hearing that there was only one DNA

contributor found in the mask, the trial court found probable cause to charge

Defendant with the crimes. However, even if the detective had given the trial court

the correct information, that there was one major and one minor contributor, the

trial court would have still found probable cause. The State need only present a

prima facie case at the preliminary hearing. State v. Baham, 13-901 (La. 6/28/13),

117 So.3d 505.

Louisiana Code of Criminal Procedure Article 296 provides in pertinent

part:

If the defendant has not been indicted by a grand jury for the
offense charged, the court shall, at the preliminary examination, order
his release from custody or bail if, from the evidence adduced, it
appears that there is not probable cause to charge him with the offense
or with a lesser included offense. If the defendant is ordered held upon
a finding of probable cause, the court shall fix his bail if he is entitled
to bail.

However, such a release does not have the effect of a dismissal of the

pending charges. The State may then decide whether to take the defendant to trial

or dismiss the charge. State v. Sterling, 376 So.2d 103 (La.1979). Moreover, a

review of the in limine hearing transcript shows that all of evidence introduced to

the trial court was the same as the evidence introduced to the jury in this matter,

except that the jury also heard at length the fact that there were two DNA

contributors, and the jury still found Defendant guilty beyond a reasonable doubt.

It was unlikely that the trial court would not have found probable cause to hold

Defendant to the charges in this case.

27

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant asserts that the conviction for armed robbery and false

imprisonment with the use of a dangerous weapon constituted double jeopardy.

Defendant cites a case that, like the present one, involved armed robbery and false

imprisonment to support his argument of double jeopardy. It provides:

In the next assignment of error Williams, Green, and Maynor
assert that they were subjected to double jeopardy when they were
each convicted of both the offense of armed robbery and false
imprisonment with a dangerous weapon based on the same course of
conduct. We agree.

A person cannot twice be put in jeopardy for the same offense.
U.S. Const. amend. V; La. Const. Art. 1 § 15; La. C. Cr. P. art. 591;
State v. Knowles, 392 So.2d 651 (La.1980). Louisiana uses both the
―Blockburger test‖ and the ―same evidence test‖ in determining
whether double jeopardy exists. State v. Ceasar, 37,770 (La.App.2d
Cir.10/09/03), 856 So.2d 236. In Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held
that where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not.
Louisiana also uses the broader ―same evidence‖ test which dictates
that:

If the evidence required to support a finding of guilt of
one crime would also have supported conviction of the
other, the two are the same offense under a plea of
double jeopardy and a defendant can be placed in
jeopardy for only one.

State v. Steele, 387 So.2d 1175 (La.1980); State v. Robertson, 511
So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366
(La.1988).

If double jeopardy is found, the proper remedy is a vacation of
the conviction and sentence for the lesser-punishable offense. State v.
Price, 39,582 (La.App.2d Cir. 03/23/05), 899 So.2d 633.

While Louisiana courts have examined the double jeopardy
issue regarding other combinations of crimes with armed robbery, it
seems the combination of armed robbery and false imprisonment with

28

a dangerous weapon has not been so examined for a double jeopardy
violation. See State v. Rabun, 38,655 (La.App.2d Cir.08/18/04), 880
So.2d 184 (convictions for armed robbery and conspiracy to commit
armed robbery violated double jeopardy); State v. Robertson, 386
So.2d 906 (La.1980) (convictions for first degree murder and armed
robbery when armed robbery was the underlying offense violated
double jeopardy); State v. Joseph, 2005-186 (La.App. 3d
Cir.11/02/05), 916 So.2d 378 (convictions for armed robbery and
aggravated burglary violated double jeopardy).

As already noted herein, the elements of armed robbery are
(1) a taking, (2) of anything of value, (3) from the person or in the
immediate control of another, (4) by the use of force or intimidation,
(5) while armed with a dangerous weapon. False imprisonment while
armed with a dangerous weapon is the unlawful intentional
confinement or detention of another while the offender is armed with
a dangerous weapon. Although no Louisiana court has considered
these two crimes together, we conclude that under the Blockburger
test, these are clearly two separate offenses. Armed robbery requires
proof of a taking, which false imprisonment with a dangerous weapon
does not. Conversely, false imprisonment requires proof of
―confinement or detention‖ not required to prove armed robbery.

The same evidence test, however, is a broader test that assesses
the evidence required to convict a defendant of each crime. In the
case sub judice when the defendants are charged with both armed
robbery and false imprisonment while armed with a dangerous
weapon, the same evidence was indeed used to convict them of both
crimes. In this case, using the principles of double jeopardy and
applying them to the specific facts of this case we find that the
evidence required to support the conviction of false imprisonment
while armed with a dangerous weapon would also have supported the
conviction for armed robbery. Thus, under the ―same evidence‖ test,
the two are the same offense under a plea of double jeopardy, and a
defendant can be placed in jeopardy for only one. When the
defendants entered Norris‘ home armed with a dangerous weapon and
forced Johnson to remain at gunpoint while they ransacked the home
after taking her weapon from her person, the defendants
simultaneously committed the acts which could have supported a
conviction for either offense. In presenting the facts to prove one
offense, the state simultaneously proved the other. Therefore, since
the same evidence will support a conviction for either offense, the
defendants cannot be put in jeopardy for the two separate offenses.

Because false imprisonment with a dangerous weapon is a
lesser offense as compared to armed robbery, the convictions of each
defendant for false imprisonment with a dangerous weapon are hereby
reversed.

29

State v. Williams, 45,755, pp. 6-9 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, 1135-

36, writ denied, 10-2682 (La. 4/25/11), 62 So.3d 85, and writ denied, 10-2706 (La.

4/25/11), 62 So.3d 89.

As noted above, armed robbery is defined as ―the taking of anything of value

belonging to another from the person of another or that is in the immediate control

of another, by use of force or intimidation, while armed with a dangerous weapon.

La.R.S.14:64(A). ―False imprisonment while armed with a dangerous weapon is

the unlawful intentional confinement or detention of another while the offender is

armed with a dangerous weapon.‖ La.R.S. 14:46.1(A).

Defendant argues that, as in Williams, the taking of things of value began

before the restraining of the victim and continued throughout the occurrence of the

victim‘s restraint. Accordingly, Defendant claims his right against double

jeopardy was violated.

The State, however, argues that testimony established that after Defendant

robbed the victim at gunpoint of all the money in the register and the petty cash

box, he forced the victim into the bathroom where he zip tied her hands and left her

on the bathroom floor to make his escape. Referring to a case wherein the

defendant was convicted of armed robbery and false imprisonment with a

dangerous weapon and this court did not find double jeopardy, the State argues:

See the unpublished opinion of State v. Sherman, 11-1042 (La.App. 3
Cir. 04/04/12) [writ denied, 12-1433 (La. 1/11/13), 106 So.3d 547]
(―Although the two offenses share the common element of the use of a
weapon, they are so factually distinct that the same evidence did not
support a conviction for both crimes. Evidence of restraint does not
support an armed robbery conviction, and evidence of a taking does
not support a false imprisonment conviction.‖)

30

In Sherman, 5 the armed robbers entered the business office of a motel and

restrained the office worker with duct tape. The robbers then robbed the office.

The robbers dragged the victim along with them when they moved to another room

and broke into the safe.

In the current case, the State contends that it did prove both crimes

independently. We agree. The two crimes can be temporally separated, as the

victim was restrained after the taking (emphasis added). Additonally, Ms. Stains‘

restraint and confinement, which began at gunpoint, lasted until she was able to

free herself, well after Defendant left the store. This renders this case factually

distinguishable from Williams, 54 So.3d 1129, where the restraint of the victims

lasted only the duration of the robbery. Although the two offenses, as in Sherman,

shared the common element of the use of a weapon, they can be viewed as so

factually distinct that the same evidence did not support a conviction for both

crimes. Evidence of restraint does not support an armed robbery conviction, and

evidence of a taking does not support a false imprisonment conviction. Pursuant to

such reasoning, no double jeopardy violation occurred and the assignment lacks

merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant‘s final assignment of error is that a thirty-six year sentence6 is

constitutionally excessive. In brief, appellate counsel argues only that Defendant

did not commit the crimes. Uniform Rules—Courts of Appeals, Rule 2-12.4(B)(4)

provides that ―[a]ll assignments of error and issues for review must be briefed.

The court may consider as abandoned any assignment of error or issue for review

5
2012 WL 1108650
6
As we have entered an acquittal for the charge of unauthorized use of a motor vehicle,
the Defendant‘s sentence currently stands as thirty-five years.

31

which has not been briefed.‖ Accordingly, this court may choose to not review

this assignment of error.

However, we will consider this assignment for the sake of thoroughness, as

trial counsel did file a motion to reconsider pursuant to La.Code Crim.P. art. 881.1.

In the motion to reconsider the sentence, trial counsel pointed out that Defendant

had no criminal history, that Defendant had a young son who needed his emotional

and financial support, and that there was no physical harm done to the victim.

Trial counsel also noted that since all the crimes arose from the same incident, the

sentences imposed should have been run concurrently.

As stated in State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.

1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d

331 (alteration in original):

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

Further, 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, this court stated:

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

32

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

The sentencing provisions of La.R.S. 14:64 provide that ―[w]hoever

commits the crime of armed robbery shall be imprisoned at hard labor for not less

than ten years and for not more than ninety-nine years, without benefit of parole,

probation, or suspension of sentence.‖ Defendant received thirty years

imprisonment without the benefit of parole, probation, or suspension of sentence.

―Whoever commits the crime of false imprisonment while armed with a dangerous

weapon shall be imprisoned, with or without hard labor, for not more than ten

years.‖ La.R.S. 14:46.1(B). For this offense, Defendant received five years at hard

labor. All the sentences were ordered to be served consecutively for a total of

thirty-five years imprisonment, a little more than a third of the sentence Defendant

could have received for the offense of armed robbery.

At the sentencing hearing, Defendant‘s sister, Heather Cronkhite, addressed

the trial court on his behalf. She related how Defendant had always been a caring

and giving brother. She stated that Defendant graduated from Baylor University

and became a teacher and a coach. She spoke of his young son and how her own

children loved their uncle because he was such a generous soul. She read a letter

from Defendant‘s mother, who was recovering from surgery and could not attend,

detailing times when Defendant took lost boys into their home and helped to care

33

for them until other suitable arrangement could be made. She asked the court to be

lenient.

Defendant addressed the trial court. After apologizing to the victim for the

trauma she suffered, he explained:

I‘ve been advised not to go into the long story of what
happened, but I feel that I have to say something. I met a man at the
casino; [he] befriended me. I made a very stupid decision. The next
day, I met him to sell him my prescription, and he pulled up in what is
her car, after he had robbed her. I didn‘t know any of this. After he
then robbed me, he fled the scene.

I‘m sitting in the car in the middle of nowhere, in a city I don‘t
know. What am I going to do? So I got scared and grabbed all the
stuff that - - we had fought in the car, and I threw it in the dumpster.

His DNA was found on the - - on the stuff they found in the
dumpster, and here I am. Sir, I‘m a good person. I don‘t know what
else to say.

The victim, Ms. Stains, and her husband addressed the trial court at length.

They described the devastating effect the robbery had on Ms. Stains, their business,

and their lives. Ms. Stains was diagnosed with severe post-traumatic stress

syndrome and, at the time of trial, was still in counseling. They even stated they

postponed starting a family because of her condition. After defense counsel and

the State addressed the trial court, the trial court stated for the record:

The Court, of course, sat through the trial of this matter. And quite
honestly, Mr. Shupp, I‘m very firmly convinced that you are the
person that did this crime. I recognize that you‘ve maintained, to this
day, that this Court would be sending to jail an innocent man. I
disagree.

I recognize that God creates all his creatures with some good in
them, and it appears from your family that you had, at one time, at
least some good qualities. Evidently something happened in your life
that caused you to twist off in such a stupid, stupid fashion.

I can only try to imagine what Ms. Stains went through that
day. And what has not been mentioned yet today was the fact that she
continued to agonize over this situation until you were arrested right

34

at a year later. My God. What was she thinking for that one year,
wondering when this was going to happen again or whoever did this
to her was going to come back and finish what he started.

I am constrained to some extent by your lack of previous
criminal record, but, Mr. Shupp, you must pay for the crime that you
have committed here. Regardless of what I do here today, of course it
doesn‘t undo what has happened. Doesn‘t - - I can‘t give the victims -
- not only Ms. Stains, her husband, but her family - - back what
they‘ve lost. The money is immaterial.

Based on what this Court‘s heard, the mitigating factors being
basically the only thing that you didn‘t ultimately physically hurt Ms.
Stains and your lack of criminal record . . . .

As mentioned above, appellate counsel did not make any argument on

appeal as to why the sentences were constitutionally excessive, including

addressing any of the issue raised in trial counsel‘s motion to reconsider the

sentence. However, the Louisiana Supreme Court has consistently held that a

sentence of thirty to fifty years for the offense of armed robbery is an acceptable

sentence for a first offender convicted of armed robbery.

In State v. Spencer, 14-3, pp. 17-18 (La.App. 4 Cir. 10/8/14), 151 So.3d 816,

826-27, wherein the defendant was convicted of armed robbery and received thirty

years for the armed robbery and five years for the use of a firearm during the

robbery, to be served consecutively, the fourth circuit discussed whether the

sentence was excessive for a first time offender, and noted:

In State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the
Louisiana Supreme Court stated that sentences of thirty-five to fifty
years have been found to be acceptable for first offenders convicted of
armed robbery. (citing State v. Augustine, 555 So.2d 1331, 1332
(La.1990), and State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d
49, 50). In State v. Lewis, 08-1308 (La.App. 3 Cir. 4/1/09), 16 So.3d
1, the court found that the defendant‘s thirty-year sentence was within
the accepted sentence range for first felony offenders convicted of
armed robbery. In Lewis, the defendant grabbed the victim, pulled a
knife on him and made him take all the money out of the register.
The defendant also took the victim‘s cell phone and then rode off on
his bike.

35

In State v. Hartwell, 03-1214 (La.App. 5 Cir. 1/27/04), 866
So.2d 899, the defendant was found guilty of two counts of armed
robbery. The defendant was sentenced to thirty-five years on each
count of armed robbery with an additional five years on each count to
be consecutively served to the armed robbery sentence for
commission of the armed robbery with a firearm. On appeal, the
defendant claimed that his sentences were constitutionally excessive
because he was a first offender, and the victims were not hurt. Id., 03-
1214, p. 11, 866 So.2d at 906. The court noted that the trial judge
considered the defendant‘s age of twenty-five years. Id. The court also
relied upon the fact that the trial judge found that the defendant
actions were horrible and that one of the victims testified that she was
afraid she would die during the robbery. Id., 03-1214, p. 11-12, 866
So.2d at 906-907.

A sentence of forty years for a first armed robbery offender was
affirmed in State v. Duncan, 09-232 (La.App. 5 Cir. 11/10/09), 28
So.3d 410. In Duncan, the court noted that both victims, while not
physically hurt, testified that they were afraid for their lives and
continued to be affected by the incident. Id., 09-232, p. 12, 28 So.3d at
417. One of the victims testified that he felt intimidated and feared for
his life and that of his family. Id.

See also State v. Henry, 14-1131 (La.App. 3 Cir. 3/4/15), 159 So.3d 1176, and

State v. Moten, 14-1169 (La.App. 3 Cir. 3/4/15), 158 So.3d 972.

Defendant has failed to show that the trial court abused its vast discretion

when it imposed the sentences. There is no merit to this assignment of error.

DECREE

This court hereby affirms Defendant‘s convictions and sentences for armed

robbery and false imprisonment with a dangerous weapon. We instruct the trial

court to inform the Defendant of the correct provisions of La.Code Crim.P. art.

930.8 by sending appropriate written notice to the Defendant within ten days of the

rendition of this opinion and to file written proof in the record that the Defendant

received the notice.

The Defendant‘s conviction and sentence for ―unauthorized use of a motor

vehicle,‖ however, is hereby reversed and set aside since it is not a responsive

36

verdict to the charged offense of ―theft of a motor vehicle over $1500.00.‖ The

case is remanded to the trial court to enter a past-verdict judgment of acquittal as to

the charged offense of ―theft of a motor vehicle valued over $1500.00.‖

CONVICTIONS AND SENTENCES FOR ARMED ROBBERY AND FALSE
IMPRISONMENT AFFIRMED; CONVICTION AND SENTENCE FOR
UNAUTHORIZED USE OF A MOTOR VEHICLE REVERSED;
REMANDED WITH INSTRUCTIONS.

37