State v. Evans

STATE OF LOUISIANA v. JOSHUA DAVID EVANS

KA 18-278

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

May 22, 2019

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 16-CR 000980

HONORABLE KEITH R.J. COMEAUX, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.

Cooks, J., dissents for reasons stated in the dissent in State of Louisiana v. Elvin Bryant Jinks, Jr., 2019 WL 1929961 (La.App. 3 Cir. 5/1/19) ___So.3d___.

Annette Fuller Roach

Louisiana Appellate Project

P. O. Box 1747

Lake Charles, LA 70602-1747

(337) 436-2900

COUNSEL FOR DEFENDANT/APPELLANT:

Joshua David Evans

M. Bofill Duhe

District Attorney, Sixteenth Judicial District Court

W. Claire Howington

Craig Colwart

Assistant District Attorneys, Sixteenth Judicial District Court

300 Iberia St., Suite 200

New Iberia, LA 70560

(337) 369-4420

COUNSEL FOR APPELLEE:

State of Louisiana

EZELL, Judge.

On August 9, 2016, the State filed a bill of information charging Defendant Joshua David Evans with attempted second degree murder, a violation of La.R.S. 14:27 and 14:30.1; simple criminal damage to property, a violation of La.R.S. 14:56; and illegal use of weapons, a violation of La.R.S 14:94. The parties selected a jury on August 8, 2017. The next day, the jury heard evidence and returned verdicts of guilty for illegal use of weapons and attempted second degree murder. The charge of simple criminal damage to property was not presented to the jury and was ultimately nolle prossed.

On December 1, 2017, the trial court denied Defendant's motion for new trial. On December 5, 2017, the court sentenced him to twenty years at hard labor for attempted second degree murder and two years at hard labor for illegal use of a weapon. Subsequently, the State filed a bill of information charging Defendant as a habitual offender. On July 13, 2018, the trial court conducted a hearing and adjudicated him as a second habitual offender. On the same date, the court vacated Defendant's twenty-year sentence for attempted second degree murder and sentenced him to eighteen years at hard labor for the habitual offender adjudication. The court further ordered that the sentence run concurrent with the two-year sentence imposed for illegal use of a weapon and concurrent with an unrelated conviction.

Defendant now seeks review by this court, assigning six errors. After review, we find the convictions and sentences should be affirmed.

FACTS

On May 27, 2016, the victim Akeem Rhine was living with his girlfriend Myiesha Leon, their infant son, and another child who was Defendant's daughter.On that date, Rhine called Leon from work and they conversed via speaker phone. Rhine could hear that Defendant was at his residence. He objected to Defendant's presence without a prior announcement. Rhine testified he did not want to interfere with Defendant seeing his daughter, but Rhine expected him to call before showing up.

Rhine and Defendant texted one another during the day; Defendant called Rhine as he was getting off work, and the two men argued. When Rhine got home, Leon was sitting in her vehicle in the parking lot. He tried to show her the series of texts he and Defendant had exchanged. She was not receptive and drove away to pick up one of her sons. Rhine followed her; as they pulled away, he noticed Defendant and three other men on the opposite side of the parking lot near a black Ford Taurus. Rhine was texting Leon as he drove and accidentally ran into her car. They both drove home, but they got into an argument. She drove away again, and he followed her again. They stopped at a nearby four-way stop, Rhine pulled up alongside her, then noticed the same Taurus he had seen earlier was at the corner; Defendant got out and shot at Rhine. Rhine and Leon both drove away. Rhine turned wide and drove into a nearby cemetery, striking a tombstone. He returned to the road and continued to drive away. He soon saw two deputies in their vehicle and reported the crime.

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. Additionally, the court minutes of sentencing require correction.

First, the court minutes of sentencing indicate Defendant was informed that he has two years in which to file an application for post-conviction relief. This isverified by the sentencing transcript. Louisiana Code of Criminal Procedure Article 930.8(A) provides defendant has two years after the conviction and sentence become final to seek post-conviction relief. Although the court minutes of the subsequent habitual offender sentencing indicate Defendant was told he has two years from the "date [the] judgment becomes final" to file an application for post-conviction relief, the transcript from that proceeding indicates he was simply told he had two years. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

In State v. Conway, 12-525 (La.App. 3 Cir. 11/7/12), 101 So.3d 1132, and State v. Julien, 13-1327 (La.App. 3 Cir. 5/21/14), 139 So.3d 1152, writ denied, 14-1406 (La. 5/15/15), 169 So.3d 383, this court found an advisement that defendant had two years to apply for post-conviction relief was insufficient; thus, it directed the trial court to inform defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to defendant within ten days of the rendition of the opinion and to file written proof in the record that defendant received the notice. Therefore, the trial court is directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate notice to him within ten days of the rendition of this opinion and to file written proof into the record indicating that Defendant received the notice.

We also find the court minutes concerning Defendant's sentence for illegal use of a weapon require correction. The sentencing minutes reflect that the court originally imposed a sentence of twenty years at hard labor for attempted second degree murder and a two-year hard labor sentence for illegal use of a weapon. The minutes then state, "[s]aid sentence is to be served without the benefit of probationor parole and is to run concurrent with each other. . . ." However, the sentencing transcript indicates that only the attempted second degree murder sentence was imposed without benefit of parole, probation, or suspension of sentence. As discussed above, the transcript prevails when a conflict exists. Accordingly, the trial court is ordered to correct the sentencing minutes to accurately reflect that the sentence for illegal use of a weapon does not contain a denial of probation or parole.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the State's evidence was insufficient to support his convictions. Specifically, he argues the evidence that he was the shooter was insufficient. He also questions whether intent to kill was established. He notes that Akeem Rhine was the sole identifying eyewitness. Defendant correctly cites the established analysis:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Further, he notes that a conviction for attempted second degree murder requires proof of a specific intent to kill and that a conviction for illegal use of a weapon requires that death or great bodily harm be foreseeable. Thus, Defendant presents this court with two alternative arguments: first, there was insufficient proof that he was the shooter; second, for purposes of the attempted murder charge, if his identity as the shooter was proved, there was insufficient proof that he had the specific intent to kill; for the purposes of the illegal discharge of a weapon charge, if his identity was proved, then the State adduced insufficient evidence that harm to Rhine was foreseeable. He acknowledges the well-established jurisprudence that a lone witness's testimony can support a conviction.

However, he also cites the equally well-established principle that when the identity of the offender is at issue, any reasonable probability of misidentification must be negated. He notes that the only witness to identify him as the shooter was Rhine. He argues that no physical evidence linked him to the shooting and that Rhine was angry with and jealous of him. The alleged anger and jealousy stemmed from the fact that Rhine was Leon's boyfriend and Defendant was her ex-boyfriend and the father of one of her children. The general circumstances indicated Rhine may have been...