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State v. Marcello

Supreme Court of Louisiana
Jun 23, 1980
385 So. 2d 244 (La. 1980)

Summary

In State v. Marcello, 385 So.2d 244 (La. 1980), the defendant was seen in the hallway of a public utility's office building.

Summary of this case from State v. Jacobs

Opinion

No. 66732.

June 23, 1980.

APPEAL FROM CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE ALVIN B. OSER, J.

L. Howard McCurdy, Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.


Defendant, Victor Marcello, was charged by bill of information with simple burglary of the New Orleans Public Service, Inc. (NOPSI) building at 921 Union Street. Defendant waived trial by jury and was convicted by the trial judge. The court minutes and a notation on the bill of information reflect that the conviction was for attempted simple burglary. The transcript shows that the defendant was advised by the court both at verdict and sentencing that he had been convicted of simple burglary. The problem this conflict would otherwise present is obviated by the fact that there is no evidence of the specific intent necessary for a valid conviction of either crime. LSA-R.S. 14:62; LSA-R.S. 14:27.

A verdict of guilt is justified only when the record shows that at least some evidence was before the trier of fact for each essential element of the offense. See State v. Main Motors, Inc., 383 So.2d 327 (La., 1979) and State v. Mouton, 366 So.2d 1336 (La., 1978).

The simple burglary statute states, in pertinent part, that:

"Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, . . ." LSA-R.S. 14:62.

The defendant must have had the specific intent to commit either a felony or a theft at the time of his unauthorized entry. State v. Anderson, 343 So.2d 135 (La., 1977). The requirement of specific intent also applies to attempted simple burglary. State v. Walker, 328 So.2d 87 (La. 1976).

"Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired and prescribed criminal consequences to follow his act or his failure to act." LSA-R.S. 14:10.

The State had to introduce at least some evidence that defendant had the active desire to commit a felony or theft in the NOPSI building.

Marcello testified that he had entered the building to clean up before looking for employment that evening. He had been sleeping in an air conditioning unit on the roof and had climbed down a ladder to enter the third floor ladies' restroom. Marcello washed with soap and water in the lavatory. Then, wiping his face with a wet paper towel, he entered the hallway from the restroom. He was immediately spotted by porter Kevin Smith who had heard the sound of running water. Marcello ran back into the restroom, climbed out the window, and jumped four feet across into an adjacent parking garage. Police found, chased and arrested him in the garage. Porter Smith, who had cleaned the restroom earlier in the evening, found "a lot of dirt" left there (Tr. 7).

None of the direct or circumstantial evidence shows that defendant had a specific intent to commit theft or any other felony. His entry into the third floor hallway from the restroom is consistent with his statement that he was looking for an easier exit. No property was reported missing. Marcello took nothing from NOPSI except some soap and a paper towel. Compare State v. Anderson, supra, where Anderson was apprehended with stolen property. Marcello had no burglary tools. His flight does not necessarily show guilty intent to commit theft or a felony under these circumstances. Marcello may have run merely because he was not authorized to be on the NOPSI premises and had past convictions for "sleeping in public places" (Tr. 17). His activity in the building negates any implication that he intended the offense charged.

Because the State failed to present any evidence of an essential element of the offense, the evidence is not sufficient to support the conviction. Double jeopardy has attached, and Marcello must be acquitted. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Thompson, 366 So.2d 1291 (La., 1978).

The defendant's conviction and sentence are reversed.

REVERSED.


Summaries of

State v. Marcello

Supreme Court of Louisiana
Jun 23, 1980
385 So. 2d 244 (La. 1980)

In State v. Marcello, 385 So.2d 244 (La. 1980), the defendant was seen in the hallway of a public utility's office building.

Summary of this case from State v. Jacobs

In State v. Marcello, 385 So.2d 244 (La.1980), the defendant was discovered in the hallway of an office building after he entered the building through the roof, where he was sleeping, to wash in a restroom.

Summary of this case from State v. Shelvin

In State v. Marcello, 385 So.2d 244 (La. 1980), where the defendant entered a public building after hours, the Court addressed the issue of the defendant's specific intent to commit a felony after he entered.

Summary of this case from State v. Wilson

In State v. Marcello, 385 So.2d 244 (La. 1980), the evidence indicated the defendant had been sleeping in an air-conditioning unit on the roof of a building and climbed down a ladder and entered a third floor restroom.

Summary of this case from State v. Wright

In State v. Marcello, 385 So.2d 244 (La. 1980), cited by the Defendant, the court reversed the defendant's conviction for attempted simple burglary, finding the absence of evidence of specific intent.

Summary of this case from State v. Guillory

In State v. Marcello, 385 So.2d 244 (La. 1980), the defendant was seen in the hallway of a public utility's office building.

Summary of this case from State v. Bass

In State v. Marcello, 385 So.2d 244 (La. 1980), the court noted that pursuant to La.R.S. 14:10 "specific intent" is defined as the "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."

Summary of this case from State v. Bancroft

In Marcello, defendant claimed he had entered the building to clean up before looking for work. His story was corroborated by a porter who observed him leaving the restroom, heard running water, and discovered that there was dirt in the lavatory when defendant left.

Summary of this case from State v. Brooks

In State v. Marcello 385 So.2d 244 (La. 1980), the court found a reasonable hypothesis of innocence from evidence which indicated he had broken into an office building to use the restroom.

Summary of this case from State v. Steward

In State v. Marcello, 385 So.2d 244 (La. 1980), the evidence indicated the defendant had been sleeping in an air-conditioning unit on the roof of a building and climbed down a ladder and entered a third floor restroom.

Summary of this case from State v. Rounds

In Marcello, the defendant was apprehended in a public building and had a history of this type of activity, including sleeping in public buildings.

Summary of this case from State v. Jacobs
Case details for

State v. Marcello

Case Details

Full title:STATE OF LOUISIANA v. VICTOR MARCELLO

Court:Supreme Court of Louisiana

Date published: Jun 23, 1980

Citations

385 So. 2d 244 (La. 1980)

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