STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 KA 0878

STATE OF LOUISIANA

VERSUS

MICHAEL STEVEN WHITE

JUN o4 2024 Judgment Rendered: ______ _

Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 3984-F-2022

The Honorable Scott Gardner, Judge Presiding

Andrew B. Joyner Counsel for Appellee, Matthew Caplan State of Louisiana Assistant District Attorneys J. Collin Sims District Attorney Covington, Louisiana

Bertha M. Hillman Counsel for Defendant/Appellant, Covington, Louisiana Michael Steven White

BEFORE: McCLENDON, HESTER, AND MILLER, JJ.

MILLER,J.

The defendant, Michael Steven White, was charged by bill of information with six counts of simple burglary, violations of La. R.S. 14:62. He pled not

guilty; however, following a jury trial, the defendant was found guilty as charged

on all six counts. The defendant was initially sentenced, on each count, to

imprisonment at hard labor for twelve years, with the sentences to run

concurrently. The State then filed a habitual offender bill of information, alleging the defendant was a fourth-felony habitual offender under La. R.S. 15:529.1, which the defendant admitted. Finding the defendant to be a fourth- felony habitual

offender, the trial court vacated the original sentences and resentenced the

defendant, on each count, to imprisonment at hard labor for twenty years, without

benefit of probation or suspension of sentence, with the sentences to run

concurrently. The defendant now appeals, challenging the sufficiency of the

evidence and the lack of a " not guilty" responsive verdict on the jury form. For the

following reasons, we affirm the defendant's convictions, habitual offender

adjudication, and sentences.

STATEMENT OF FACTS

On July 18, 2022, at approximately 10:38 p.m., Deputy Tristan Wenturine

Deputy Wenturine") of the St. Tammany Parish Sheriffs Office Criminal Patrol

The defendant was also charged with one count of possession of drug paraphernalia, a violation of La. R.S. 40: 1023(C), for which the State entered a nolle prosequi.

The State identified the predicate offenses as ( 1) the defendant's August 11, 2015 conviction for vehicular homicide under Twenty-Second Judicial District Court Docket No. 558887, ( 2) the defendant's June 13, 2005 conviction for three counts of theft ($ 500-$1500) under Twenty-Second Judicial District Court Docket No. 395203, and ( 3) the defendant's June 1, 2005 conviction for simple burglary under Twenty-Second Judicial District Court Docket No. 362713.

The trial court properly advised the defendant of his rights under the Habitual Offender Law, i.e., the right to a formal hearing wherein the State would be required to prove the allegations of the habitual offender bill and the right to remain silent. State v. Piper, 2018- 1796 La. App. ! 81 Cir. 9/27/19), 287 So. 3d 13, 26 ("[ w]hen the defendant's guilt [ as a habitual offender], however, is proven by his own stipulation or admission without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error.").

Division responded to a call concerning a suspicious person located at J& J Auto

Brokers (" J& J"), a used vehicle dealership, in Slidell, Louisiana. Upon his arrival,

Deputy Wenturine noticed a male ( later identified as the defendant) standing next

to a vehicle, which was backed into a small driveway facing the highway in a

poorly lit area. Deputy Wenturine also noted J& J, given the time of day, was

closed for business. Upon approaching the defendant, Deputy Wenturine observed

wiring and miscellaneous stuff'' in the back of the defendant's vehicle, which

based on his past experience was consistent with "people that are going through or

ripping out car parts and things like that." However, Deputy Wenturine was unable

to confirm whether any of those items were stolen. He further observed that the

back hatch and rear door of the defendant's vehicle were open. When Deputy

Wenturine scanned the area with his flashlight, he also observed that the doors of

multiple vehicles in the car lot were open. When he inquired why the defendant

was looking at cars, the defendant replied that he was "[ s ]eeing if he [ could] use

anything to strip or buy, flip, and sell." Later, the defendant admitted to Deputy

Wenturine that he did, in fact, open the vehicles' doors but claimed he was looking

for a replacement vehicle for his mother.

Deputy John Thornhill (" Deputy Thornhill") of the St. Tammany Parish

Sheriff's Office also responded to J& J following a report of subjects " going

through vehicles" at J& J. Upon his arrival at J& J, Deputy Thornhill contacted his

partner, Deputy Wenturine, who had the defendant in custody. Deputy Thornhill

also observed the " miscellaneous wiring" located in the defendant's vehicle.

Deputy Thornhill then identified and observed six vehicles whose doors and/or

engine compartments were open upon his arrival to J& J: a silver Lexus sedan, a

silver Volkswagen sedan, a beige Chevrolet Silverado truck, a red Ford truck, a

white Suzuki sedan, and a white Dodge Ram truck. At trial, Deputy Thornhill

specifically testified that it did not appear that the Lexus or Volkswagen, other than

having the doors open, had been tampered with. As to the Dodge Ram truck, the

doors were opened and Deputy Thornhill noted it appeared to have been tampered

with or had pieces removed, but did not describe how it had been tampered with or

what was missing. As to the Suzuki sedan, the doors and engine compartment hood

were open, and Deputy Thornhill believed it had been tampered with, as the radio

was missing. Deputy Thornhill also observed the Ford truck, with both doors open,

and at the driver's side door, he saw a pack of Lucky Strike cigarettes on the

ground. Though Deputy Thornhill found Lucky Strike cigarettes in the defendant's

vehicle and was told by the defendant that he smoked said cigarettes, Deputy

Thornhill did not observe any damage to the interior of the Ford truck. Lastly,

Deputy Thornhill observed the Chevrolet truck, with doors open, and he testified

the radio and " head unit" were missing.

Norman Ducre (" Ducre"), the owner of J& J, testified that when leaving J& J

for the day, he typically left the vehciles' doors unlocked. According to Ducre, he

left the doors unlocked to prevent further expense from individuals breaking the

vehicles' windows to then burglarize them. On the night of the alleged burglaries,

Ducre left the car lot around 7:00 or 7:30 p.m., went home, and then went to play

pool. While he was playing pool, he received a phone call from a friend saying he

had " seen somebody in one of the cars." Upon receiving the information from his

friend, Ducre called law enforcement and drove to J& J. While waiting for law

enforcement' s arrival, Ducre noticed the engine compartment of one of his

vehicles was open and an interior light was on. More specifically, upon his arrival

to J& J, Ducre observed " someone in one of [his] cars[.]" Though Ducre did not

identify which vehicle the defendant was allegedly in, he testified he did not leave

J& J that day with the vehicles' doors and/or engine compartments open.

Additionally, Ducre stated he had never met the defendant and did not give him, or

anyone else, permission to be at J& J, or otherwise look through the vehicles, on the

night in question. While it is possible for individuals to stop at J& J after hours to

look at cars on the lot, Ducre testified it was not normal for people to be there as

late as 9:00 or 10:00 p.m. Moreover, even if individuals are at J& J after hours,

Ducre believed it is not common that the individual would open the doors and look

into the vehicles' compartments.

Lieutenant Devon Coulon (" Lieutenant Coulon") of the St. Tammany Parish

Sheriffs Office testified that he was the shift supervisor on the night of the alleged

burglaries, and he responded to J& J along with Deputy Wenturine and Deputy

Thornhill. Upon Lieutenant Coulon's arrival, he spoke with the defendant, who

admitted to opening the doors of a Volkswagen vehicle but stated that he intended

to close them. At trial, Lieutenant Coulon also provided testimony that the

defendant indicated he was working in conjunction with his cousin on the night of

the alleged burglaries. However, further investigation did not indicate that the

defendant and his cousin were working together that night.

Linda Henley (" Henley"), the defendant's mother, testified that following

the defendant' s return from imprisonment, the two lived together, with the

defendant employed as a mechanic, reassembling and refurbishing automotive

parts salvaged from junkyards. Though Henley initially testified it would be

abnormal for the defendant to have " wiring and other things in his vehicle[,]"

Henley later stated it was common for the defendant to have various items, tools,

and wires in the back of his vehicle, as " most of the time he had some wiring in

there[,]" he "[ p ]robably" had wiring in the back of his vehicle on the night of the

alleged burglary, and that the defendant would normally " pick[] up wiring."

Further, when shown a picture of the " big ball of wiring" found in the back of the

defendant' s vehicle, Henley could not identify it. Additionally, because of damage

sustained during Hurricane Ida, Henley stated one of her two vehicles became

inoperable, and she and the defendant were in the process of looking for a

replacement, often driving to various car lots on the weekends to inspect and

identify potential options. Henley testified it was normal for the defendant to stop

at a car lot late at night. She further stated that the defendant " would open the

doors and he would check inside and smell it" to determine whether she would be

sensitive to the interior conditions, as he knew Henley needed a vehicle without

any smoke or mold damage, due to her asthma. Henley also noted the two would

sometimes visit businesses that were closed for the day, would " open the doors[,]

and] peek inside[.]" Additionally, Henley testified the defendant, in the process of

identifying a new vehicle for her, would open the engine compartment hoods, but

that she was not present with the defendant on the night of the alleged burglaries.

Lastly, Jennifer Seacrest (" Seacrest"), the defendant' s girlfriend, testified

that she believed the defendant was in search of a replacement vehicle for his

mother at the time of the alleged burglaries. However, Seacrest was not present at

J& J on the night in question.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant argues the evidence presented

at trial was insufficient to support his convictions for simple burglary. Specifically,

though the defendant admits to his identity and that he opened the doors of

vehicles and the hood of one vehicle, he argues the State nevertheless failed to

meet its burden of proving he entered the interior of the vehicles following his

opening of them. He avers "[ t]here was no evidence that [ he] entered the enclosed

interior of the vehicles. He simply opened the car doors and hood of one vehicle.

With no proof that [ he] entered the vehicles after he opened the car doors and

hood, the State failed to meet its burden of proving an essential element of the

crime." The defendant's argument on appeal is strictly limited to the " entry"

element of simple burglary. Thus, our review is limited to the sufficiency of the evidence concerning the " entry" element of simple burglary.

A conviction based on insufficient evidence cannot stand, as it violates due

process. See U.S. Const. amend. XIV, La. Const. art. I, § 2. In reviewing claims

challenging the sufficiency of the evidence, an appellate court must determine

whether any rational trier of fact could have found the essential elements of the

crime and the defendant's identity proven beyond a reasonable doubt based on the

entirety of the evidence, viewed in the light most favorable to the prosecution. See

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 1979); State v. Oliphant, 2013- 2973 ( La. 2/21/14), 133 So. 3d 1255, 1258- 59 ( per

curiam); see also La. C.Cr.P. art. 821(B).

When analyzing circumstantial evidence, La. R.S. 15: 438 provides that the

factfinder must be satisfied the overall evidence excludes every reasonable

hypothesis of innocence. Oliphant, 133 So. 3d at 1258; State v. Dunn, 2021- 0630

La. App. pt Cir. 12/22/21), 340 So. 3d 77, 83-84, writ denied, 2022-00095 ( La.

4/5/22), 335 So. 3d 834. This is not a separate test that applies instead of a

sufficiency of the evidence test when circumstantial evidence forms the basis of the

conviction. Rather, all of the evidence, both direct and circumstantial, must be

sufficient under Jackson to convince a rational juror the defendant is guilty beyond a

reasonable doubt. State v. Dorsey. 2010- 0216 (La. 9/7/11), 74 So. 3d 603, 633.

The Jackson standard does not require the reviewing court to determine

whether it believes the witnesses or whether it believes the evidence establishes

guilt beyond a reasonable doubt. State v. Mire, 2014- 2295 ( La. 1/27/16), 269 So. 3d 698, 703 ( per curiam). Rather, appellate review is limited to determining

whether the facts established by the direct evidence and inferred from the

We note, and the State correctly points out, that, on appeal, the defendant does not challenge the sufficiency ofthe evidence presented at trial concerning his identity or the required specific intent to commit a felony or theft within the vehicles.

circumstances established by that evidence are sufficient for any rational trier of

fact to conclude beyond a reasonable doubt that the defendant was guilty of every

essential element of the crime. State v. Gardner, 2016-0192 ( La. App. pt Cir.

9/19/16), 204 So. 3d 265, 267. The weight given evidence is not subject to

appellate review; therefore, an appellate court will not reweigh evidence to

overturn a factfinder' s determination ofguilt. State v. Livous, 2018- 0016 (La. App.

pt Cir. 9/24/18), 259 So. 3d 1036, 1040, writ denied, 2018-1788 ( La. 4/15/19), 267

So. 3d 1130.

Louisiana Revised Statutes 14:62(A) defines simple burglary, in pertinent

part, as the " unauthorized entering of any dwelling, vehicle, watercraft, or other

structure, movable or immovable, or any cemetery, with the intent to commit a

felony or any theft therein[.]" Simple burglary requires specific intent, which is

that state of mind which exists when the circumstances indicate that the offender

actively desired the prescribed criminal consequences to follow his act or failure to

act." La. R.S. 14:10(1). Such a state of mind can be formed in an instant and need

not be proven as a fact but may be inferred from the circumstances of the

transaction and the actions of the offender. State in Interest of D.T., 2019- 1284

La. App. pt Cir. 2/21/20), 2020 WL 862311, at * 2 ( unpublished). Specific intent

may be established by circumstantial evidence alone if every reasonable hypothesis

of innocence is excluded. State v. Cousan, 94- 2503 ( La. 11/25/96), 684 So. 2d 382, 390.

Additionally, the " entry" element of the crime of simple burglary is satisfied

when there is evidence that any part of the defendant' s person intrudes, even

momentarily, into the vehicle. State in Interest of P.M., 2015-0834 ( La. App. 4th

Cir. 12/16/15), 186 So. 3d 693,695, writ denied, 2015- 2327 (La. 3/14/16), 189 So.

3d 1072. There is no requirement that "entry" be " into a part of the vehicle capable

of or designed to accommodate a person." State v. Pierre, 320 So. 2d 185, 188 ( La.

1975) (" It is sufficient if the entry into the vehicle is accomplished, as in this case,

by opening the hood and stealing the battery from the engine compartment."); cf.

State v. Bickham, 2018-1006 ( La. App. 1st Cir. 11/15/19), 2019 WL 6044319 at * 3

unpublished) ( defendant " digging through" motorcycle saddlebags does not

satisfy the " entry" requirement of simple burglary, as saddlebags are not integral

parts to the interior of a motorcycle). Lastly, it is not necessary for a simple

burglary conviction that an actual theft occur. State in Interest of E.M., 2022-0307

La. App. 1st Cir. 9/16/22), 2022 WL 4285936, * 3 ( unpublished).

After a thorough review of the record, we find that a rational trier of fact,

viewing the evidence presented at trial in the light most favorable to the State,

could find the evidence proved beyond a reasonable doubt, and to the exclusion of

every reasonable hypothesis of innocence, that the defendant entered the six

identified vehicles located at J& J on the night in question. While observing the

defendant at J& J prior to law enforcement's arrival, Ducre affirmatively stated he

saw the " engine and the car open light on" as well as the defendant in one of his

vehicles. Ducre stated he did not leave any vehicle doors and/or engine hoods open

prior to leaving for the day. Upon law enforcement's arrival, they observed six

vehicles whose doors and/or engine hoods were open. Further, when initially

questioned by Deputy Wenturine concerning his actions, the defendant admitted to

s] eeing if he [ could] use anything to strip or buy, flip, [ or] sell." Moreover, the

defendant admitted to Lieutenant Coulon that he opened some of the vehicle doors,

and the Lucky Strike cigarettes found on the ground near other vehicles matched

the same cigarettes found in the defendant's vehicle.

Additionally, the jury can accept or reject the testimony of any witness. To

resolve conflicting testimony relative to factual matters, the jury must make

credibility determinations and weigh the evidence. See Mire, 269 So. 3d at 700- 01;

State v. Eby, 2017-1456 ( La. App. 1st Cir. 4/6/16), 248 So. 3d 420, 426, writ

denied, 2018-0762 ( La. 2/11/19), 263 So. 3d 1153. In the absence of internal

contradiction or irreconcilable conflict with the physical evidence, one witness' s

testimony, if believed by the jury, is sufficient to support a factual conclusion.

State v. Dorsey, 2010-0216 ( La. 9/7/11), 74 So. 3d 603, 634, cert. denied, 566 U.S.

930, 132 S. Ct. 1859, 182 L. Ed. 2d 658 ( 2012).

Accordingly, in reviewing the evidence presented at trial, we cannot say the

jury's determination that the defendant was guilty of six counts of simple burglary

was irrational under the facts and circumstances presented. An appellate court errs

by substituting its appreciation of the evidence and credibility of witnesses for that

of the factfinder and thereby overturning a verdict on the basis of an exculpatory

hypothesis of innocence presented to, and rationally rejected by, the jury. See State

v. Calloway, 2007-2306 ( La. 1/21/09), 1 So. 3d 417, 418 ( per curiam). To

otherwise accept a hypothesis of innocence that was not unreasonably rejected by

the factfinder, a court of appeal impinges on a factfinder's discretion beyond the

extent necessary to guarantee the fundamental protection of due process of law.

See Mire, 269 So. 3d at 703. Accordingly, this assignment of error lacks merit.

ERROR ON JURY VERDICT FORM

In his second assignment of error, the defendant argues an " error patent" is

present on the face of the pleadings; that is, the verdict form presented to the jury did not contain a " not guilty" responsive verdict. See La. C.Cr.P. art. 814(A)(50).

As such, the defendant contends this omission constitutes reversible error. The

defendant is correct in pointing out the deficiency in the verdict form, which

contains the following responsive verdicts: " Guilty of Simple Burglary," " Guilty of

Louisiana Code of Criminal Procedure article 814( A)(50) provides the following responsive verdicts for simple burglary: " Guilty[,]" " Guilty of attempted simple burglary[,]" Guilty of unauthorized entry of a place of business[,]" " Guilty of attempted unauthorized entry of a place of business[,]" and " Not guilty." The verdict form did not contain the responsive verdicts of " Guilty of unauthorized entry of a place of business," " Guilty of attempted unauthorized entry of a place of business," and " Not guilty.

Attempted Simple Burglary," and " Guilty." The verdict form does not contain a

responsive verdict of"Not Guilty" as required by La. C.Cr.P. art. 814.

Louisiana Code of Criminal Procedure article 920(2) notes an error patent as

a] n error that is discoverable by a mere inspection of the pleadings and

proceedings and without inspection of the evidence." Generally, however, any

alleged error concerning the sufficiency of the list of responsive verdicts given the

jury is not reviewable under Article 920(2) and may not be considered unless

objection is made in the trial court in time for the trial judge to correct the error.

State v. Craddock, 307 So. 2d 342 ( La. 1975); see also State v. Hanson, 41,195

La. App. 2nd Cir. 8/23/06), 938 So. 2d 1147, 1152, writ denied, 2006-2318 ( La.

4/20/07), 954 So. 2d 158 ( omission of responsive verdicts of simple rape and

attempted simple rape from verdict form not reviewable under Article 920(2));

State v. Williams, 2017-0585 ( La. App. l81 Cir. 11/16/17), 236 So. 3d 604, 607

Jury charges are beyond the permissible scope of review under [ Article]

920(2).").

In Craddock, the court noted that absent an objection, a defendant may not

on appeal complain of the judge' s charge to the jury, even though the charge may

happen to appear in the record. The court went on to hold that the alleged error

concerning the sufficiency of the list of responsive verdicts given the jury, like

error in the judge's charge to the jury, was not reviewable under Article 920(2) and

could not be considered unless an objection was made in the trial court in time for

the trial court to correct the error. Craddock, 307 So. 2d at 343.

Furthermore, La. C.Cr.P. art. 841 pertinently provides, "[ a] n irregularity or

error cannot be availed of after verdict unless it was objected to at the time of the

occurrence." The contemporaneous objection rule provides the trial court notice

and the opportunity to cure an alleged irregularity or error, and prevents a party

from gambling for a favorable outcome then appealing when the error could have

been addressed by an objection. The failure to make a contemporaneous objection

prior to the verdict waives the alleged error or irregularity and precludes the

defendant from raising it on appeal. State v. Thompkins, 2018-1032 ( La. App. 1st

Cir. 2/27 /19), 273 So. 3d 346, 349-50, writ denied, 2019- 00666 (La. 9/17 /19), 278

So. 3d 973; see also Williams, 236 So. 3d at 607.

However, despite the lack of a contemporaneous objection, jury instructions

may be reviewed on appeal when the alleged error violates a fundamental due

process right and is therefore structural. See State v. McCasland, 2016- 1178 ( La.

App. 1st Cir. 4/18/17), 218 So. 3d 1119, 1129. Here, we note that while the verdict

form does not contain a responsive verdict of "Not Guilty," the trial court orally

instructed the jury that if they were not convinced beyond a reasonable doubt of

the defendant' s guilt, they should return a not guilty verdict. Therefore, when

coupled with the trial court's oral instruction to the jury, the lack of a " Not Guilty"

responsive verdict on the jury form was not structural and, as such, did not violate

fundamental requirements of due process. See Williams, 236 So. 3d at 607;

McCasland, 218 So. 3d at 1129. Accordingly, this assignment of error lacks merit.

We have been unable to find where the omission of "Not Guilty" from a

verdict form has been reviewed by this court on appeal. The exclusion of "Not

Guilty" as an option on the verdict form is a particularly egregious omission which

we find troubling. Yet, the jurisprudential framework does not allow us to

distinguish this error from other charging errors smce no contemporaneous

objection was lodged. As a court of appeal, we are bound to follow the decisions of

the Louisiana Supreme Court. The holding in Craddock is unequivocal. A different

interpretation of Craddock and its progeny, or a narrowing of the rule, is

necessarily left to the Louisiana Supreme Court.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES ARE AFFIRMED.