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STATE OF LOUISIANA  DEPUTY CLfRi  NO. 12-KA-629  
VERSUS  51H CIRCUIT COUPT Of ,PPEAL STATE OF LCUiSIAHA  FIFTH CIRCUIT  

JOSEPH CHRISTOPHER AUSTIN COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO.1 0-25, DIVISION "E"
HONORABLE ROBERT A. CHAISSON, JUDGE PRESIDING

MARCH 13,2013
HANS J. LILJEBERG JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg
JOEL T. CHAISSON, II DISTRICT ATTORNEY LOUIS G. AUTHEMENT ASSISTANT DISTRICT ATTORNEY
29th Judicial District Court Post Office Box 680 Hahnville, Louisiana 70057 COUNSEL FOR PLAINTIFF/APPELLEE
JOSEPH CHRISTOPHER AUSTIN DOC #348426 Allen Correctional Center Mercury Unit D-2 3751 Lauderdale Woodyard Road Kinder, Louisiana 70648 IN PROPER PERSON
FREDERICK 1. KROENKE, JR. Attorney at Law Louisiana Appellate Project 707 Rapides Street Baton Rouge, Louisiana 70806 COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
~.r/ On February 11,2010, defendant, Joseph Christopher Austin, was charged
0:rr/ inafourteen-countindictmentwith nine counts ofillegal possession ofstolen
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.. ('-f{-things (counts 1-9), in violation ofLSA-R.S. 14:69, and five counts of simple
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burglary (counts 10-14), in violation ofLSA-R.S. 14:62. He was arraigned and
pled not guilty to all charges. Thereafter, the State amended the indictment,
dismissing counts 1 through 9 and 11, and proceeded to trial on counts 10, 12, 13,
and 14.1 On July 27,2011, a six-person jury returned a verdict of guilty as charged
on all counts.
The State filed a multiple offender bill of information alleging defendant to
be a fourth felony offender. On September 14, 2011, after a hearing, the trial court
found defendant to be a second felony offender. Defendant was sentenced to six
years at hard labor on each count, to run consecutively, for a total of twenty-four
years. 2 Defendant appeals.
I Trial had originally commenced on July 11, 2011, but it terminated on July 12, 2011, when the trial judge granted defendant's motion for mistrial.
2 The trial judge did not sentence defendant on his underlying convictions. Rather, he sentenced defendant as a second felony offender to six years on each count. LSA-R.S. 15:529.l(D)(3) provides that the "court shall sentence [defendant] to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed..." (emphasis added). Thus, LSA-R.S. 15:529.1 does not mandate that a sentence be imposed on an underlying conviction before the sentence on a multiple bill is imposed. See State v. Turner, 09-1079, p. 9 (La. App. 5 Cir. 7/27/10),47 So. 3d 455, 460, n.8; and State v. Sanders, 97-892, p. 3 (La. App. 5 Cir. 3/25/98), 717 So. 2d 234, 236, n. 2, writ denied, 98-1163 (La. 9/25/98), 724 So. 2d 774.
Further, in State v. Shaw, 06-2467, p. 20 (La. 11/27/07),969 So.2d 1233, 1245, the Louisiana Supreme Court held that LSA-R.S. 15:529.1 does not prohibit enhancing multiple sentences for multiple convictions obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode.
FACTS
At approximately 2:30 a.m. on July 25, 2009, Deputy Daniel Bergeron ofthe St. Charles Parish Sheriffs Office responded to a report ofa Lexus vehicle crashing in a parking lot of an apartment building on Lakewood Drive in Luling, Louisiana. A witness informed the officer that she had seen two white males fleeing the vehicle. The vehicle did not have a license plate on it, but had a temporary tag affixed to the rear window. It was determined that the temporary tag had been stolen from a car dealership in Jefferson Parish. A check of the vehicle identification number (VIN) revealed that it was registered to Cherie Suhor.
Approximately two hours later, Deputy Bergeron responded to a report of a vehicle burglary on Willowdale Boulevard, where the victim informed the officer that a black Mizuno bag, among other things, had been taken from his vehicle. Deputy Bergeron recalled that he had just seen a black Mizuno bag in the crashed vehicle he had investigated hours before. Deputy Bergeron testified that the owner of the bag accompanied him back to the scene of the crash where he identified the bag as his own.
David Boudry testified that his Toyota Corolla was burglarized on the evening of July 25,2009, at his residence on Willowdale Boulevard in Luling. A pair of Nike shoes, trash bags, baseballs, and a Mizuno duffel bag were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.
Eric Berteau testified that his Toyota Tacoma was burglarized on the evening of July 25, 2009, at his residence on Lakewood Drive in Luling. A laptop computer, an iPod and accessories, a book, and a pair of running shoes were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.
Jonathan Warren testified that his vehicle was burglarized on the evening of
July 25,2009, at his residence on Beaupre Drive in Luling. A book of CD's, a half carton of cigarettes, and a red t1ashlight were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.
Randy St. Blanc testified that his Toyota Sequoia was burglarized on the evening of July 25,2009, at his residence on Beaupre Drive in Luling. A pair of sunglasses and a change holder were taken from the vehicle. He stated that he did not authorize defendant or anyone else to enter his vehicle.
Cherie Suhor testified that she had known defendant since they were children and that defendant lived with her from April 2009 to January 2010. In July 2009, Suhor lived in Metairie with her two sons, defendant, defendant's girlfriend, and defendant's baby. At the time, Suhor owned a Lexus, and she and defendant each had a set of keys for the vehicle.
Errol Falcon, Jr. testified that he was defendant's friend and had known him for 16 or 17 years. Falcon testified that on the morning of July 24, 2009, he met defendant at his residence, and they went to some stores. Defendant had to bring Suhor to work later that day, so Falcon brought defendant back home before he left for Biloxi, Mississippi. When Falcon arrived back in Louisiana later that night, defendant was at Falcon's house. Defendant told Falcon that he had committed several vehicle burglaries, that the police were after him, and that he had to ditch the Lexus in the Lakewood area. Defendant had to pick up Suhor from her job in Gramercy, and because he did not have a vehicle, Falcon drove defendant in his vehicle to pick her up.
Meanwhile, earlier in the evening, around 9:43 p.m., Suhor had called her boyfriend, Damien Schnyder. Thereafter, he came to her place of work. Later, in the early morning hours of July 25,2009, when Suhor finished work, defendant and Falcon picked her and Schnyder up. According to Falcon, on the way back home, defendant plotted a course of action, and they decided to report the Lexus stolen.
At approximately 6:30 a.m., Suhor reported the Lexus stolen. The vehicle had been towed to the detective bureau and Detective Joseph Dewhirst contacted Suhor to identify the vehicle. Suhor positively identified the vehicle as her own and gave consent for the officers to search it. During the course ofthe search, the trunk was opened which revealed a license plate registered to Suhor and the Lexus. Additionally, a prescription pill bottle in defendant's name was recovered from the vehicle. Detective Dewhirst testified that once Suhor saw the stolen property in her vehicle, "she knew in her heart that it was Joey Austin that did the burglaries." At trial, when Suhor was shown several photographs of the interior of her vehicle, she stated that the items depicted in the photographs were not in her vehicle when defendant dropped her off at work on July 24, 2009.
On January 8,2010, Detective Jody Fahrig interviewed defendant. After he was advised of his rights, defendant waived his rights and gave a statement. He denied burglarizing any vehicles on July 24-25, 2009.
On July 8,2011, Detectives Pitchford, Fahrig, and Dewhirst conducted an interview with Damien Schnyder. Schnyder told the detectives that he received a phone call from Suhor around 1:00 or 2:00 a.m. on July 25, 2009, telling him that her car was stolen and that she needed him to pick her up from work because she did not have a ride. Schnyder said he picked her up and they left around 2:00 or
2:30 a.m. At trial, Detective Pitchford testified that he thought this statement was inaccurate, because the investigation revealed that Suhor did not know anything about her car until well after 2:30 a.m., when the car had been received by the sheriffs office. Furthermore, Suhor's cell phone records introduced into evidence
do not show that Schnyder received a call from Suhor around 1:00 or 2:00 a.m.
Suhor did not report her Lexus stolen until 6:30 a.m.
LAW AND DISCUSSION

In his first assignment of error, defendant argues that the evidence was insufficient to prove the elements of the crimes charged beyond a reasonable doubt. He claims that because the evidence did not support the verdict, the trial court erred in denying his post-verdict judgment of acquittal.
In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier offact that all ofthe elements ofthe crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La. 6/29/01), 796 So.2d 649,657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La. App. 5 Cir. 5/11/10),41 So.3d 532,534, writ denied, 10-1357 (La. 1/7/11),52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La. App. 5 Cir. 4/15/08), 985 So.2d 234,240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.
In the present case, defendant was convicted of four counts of simple burglary. Simple burglary is defined in pertinent part as "the unauthorized entering of any ... vehicle ... with the intent to commit a felony or any theft therein." LSA-R.S. 14:62. Specific intent is required for a conviction for simple burglary, and it may be inferred from the circumstances and actions of the accused. State v. Naquin, 10-474, p. 9 (La. App. 5 Cir. 2/15/11),61 So.3d 67,71. Specific criminal intent is defined as "'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.'" Id.
Therefore, to convict the defendant, the State was required to prove beyond a reasonable doubt that defendant entered the vehicles without authorization and had the specific intent to commit a felony or theft therein. Naquin, 10-474 at 10, 61 So.3d at 72. In addition to proving these statutory elements, the State is required to prove defendant's identity as the perpetrator. Id. In a burglary prosecution, the evidence need not be direct; it suffices if there is some evidence that the circumstances lead logically to the conclusion that the accused entered the structure. State v. Johnson, 310 So.2d 600,603 (La. 1975). See also State v. Thompson, 46,473 (La. App. 2 Cir. 9/21/11), 72 So.3d 978, writ denied, 11-2159 (La. 3/23/12), 85 So.3d 88.
In the instant case, the four victims testified that items went missing from their respective vehicles on July 24-25,2009, and that they did not authorize defendant or anyone else to enter their vehicles. The missing items were then discovered in the vehicle to which defendant had access and was driving on the evening of July 24,2009. In addition, Errol Falcon, Jr., who was with defendant before and after the burglaries, testified that defendant admitted to him that he had committed several vehicle burglaries. Although defendant denied any involvement in the burglaries and Damien Schnyder gave a different version of events, the jury was presented with all of the evidence and apparently rejected their testimony.
The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. Naquin, 10-474 at 13,61 So.3d at 73. The trier of fact shall evaluate the witnesses' credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Jones, 08-20, p. 7 (La. App. 5 Cir. 4115/08), 985 So. 2d 234,240.
Considering the entire record before us and viewing the evidence in the light most favorable to the State, we find that the evidence presented was sufficient to convince a rational trier of fact that defendant was guilty of the crimes charged beyond a reasonable doubt.
Defendant also argues that the trial court erred in denying his motion for post-verdict judgment of acquittal. In this motion, defendant argued that the evidence did not reasonably permit a finding of guilt, because: 1) the State did not exclude the reasonable hypothesis of innocence that a spare key in Suhor's vehicle was used by someone other than defendant to commit these burglaries; and 2) the only direct evidence connecting defendant to the vehicle burglaries was the uncorroborated self-serving testimony of a convicted felon, Errol Falcon, Jr.
At trial, defense counsel argued that someone other than defendant could have stolen the vehicle and used it to commit the burglaries and that Falcon's testimony was unreliable and uncorroborated. The jury, in the exercise of its discretion as trier of fact, apparently rejected these theories. Considering our finding that the evidence was sufficient to prove the elements of the crimes charged beyond a reasonable doubt, we further find that the trial judge did not abuse his discretion in denying defendant's post-verdict judgment of acquittal.
In his second assignment of error, defendant argues that the trial court erred in denying his motion to quash on the grounds of double jeopardy.
Trial of this matter originally commenced on July 11, 2011. During the original trial, the State called Errol Falcon, Jr. as a witness. Falcon, who had been charged with the same simple burglary charges as defendant, testified that he had pled guilty to nine counts of possession of stolen property, had not yet been sentenced thereon, and that the State promised to dismiss the burglary charges against him if he testified against defendant. Indeed, the State indicated that the burglary charges against Falcon had been dismissed. Falcon's testimony continued until Falcon's attorney objected, via correspondence, to his client being called as a witness and testifying without presence of counsel. Falcon's counsel arrived in the courtroom soon thereafter and advised his client not to testify any further. Falcon informed the court that he would not testify any further. As a result, defense counsel filed a motion for mistrial. Pursuant to LSA-C.Cr.P. art. 775(5), defense counsel alleged that it was impossible to proceed with the trial in conformity with law since Falcon had offered testimony during direct examination, but could then not be cross-examined. On this basis, the court granted the mistrial.
In anticipation of trial commencing anew, defense counsel moved to quash the indictment alleging a double jeopardy violation since defendant had already been tried by a jury on these charges. The trial court denied the motion to quash. Defendant objected and now seeks review of this denial on appeal.
Normally, when a defendant's motion for a mistrial is granted, double jeopardy does not bar a second prosecution. State v. Amato, 96-0606, p. 13 (La. App. 1 Cir. 6/30/97), 698 So.2d 972, 984, writs denied, 97-2626 (La. 2/20/98), 709 So.2d 772 and 97-2644 (La. 2/20/98), 709 So.2d 772. However, re-prosecution is barred by double jeopardy when the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Id.
LSA-C.Cr.P. art. 591 provides: No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent ofthe defendant.
In the instant case, defendant filed a motion to quash, arguing that the State knowingly and deliberately called Falcon as a witness without the knowledge or consent ofhis counsel. This, defendant argued, forced him to move for a mistrial. Because he was provoked into moving for a mistrial, defendant argued that his second prosecution should have been barred by double jeopardy.
A review of the record belies defendant's assertion that the State intentionally acted to provoke his motion for mistrial. The State consistently maintained that Falcon had been informed that any testimony offered in regard to the burglary charges would not be used against him and that any testimony offered in regard to the possession of stolen property charges would not be used against him should he withdraw his guilty plea and proceed to trial. The State also maintained that the burglary charges against Falcon had been dismissed. This makes clear that the State called Falcon to the stand under the assumption that he had been granted immunity. As such, the State did not act in bad faith as defendant contends. Even if the State was negligent in calling a counseled witness without contacting or informing counsel, mere negligence is not the type of prosecutorial misconduct sufficient to bar a second prosecution. See Amato, 96

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