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Date: 11-21-2020

Case Style:

State of Louisiana v. Calvin Horton

Case Number: 53,534-KA

Judge: Jefferson Rowe Thompson,

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: JAMES E, STEWART, SR.
District Attorney

ALEXANDRA PORUBSKY
TOMMY J. JOHNSON
Assistant District Attorneys

Defendant's Attorney:


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Description:

Shreveport, Louisiana - Criminal defense lawyer represented defendant Calvin Horton charged with simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2, and adjudicated a second-felony habitual offender.



Horton had a 2015 conviction of simple burglary of an inhabited
dwelling at the time of the commission of the crime giving rise to this
matter. He was subsequently charged by bill of information for simple
burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2, and
proceeded to a jury trial, which commenced on April 8, 2019. He was found
guilty by a unanimous jury.
At the trial, Joshua Burson, who resides at 3001 Burson Drive in
Shreveport, Louisiana, testified he was away from his home on the morning
of September 11, 2017, when he was notified that officers with the
Shreveport Police Department had responded to a burglary call at his home.
Phyllis Daulong, who resided across the street from the Burson house,
testified that she heard a banging sound and observed a man kicking down
the door of Bursonís house, then entering the house. She also observed
another man under the carport of the Burson house. Daulong instructed her
daughter, Marcella Ogunmayin, to call the police. Ogunmayin testified that
she also saw two African American men enter the Burson house and that
officers arrived within ten minutes of her call.
2
James Carpenter, who resided two houses away from the Burson
house, testified that he observed a car drive down the street very slowly and
then stop in front of the Burson house. Two individuals exited the vehicle
and walked toward the Burson house. Concerned for his safety and that of
his neighbors, Carpenter testified that he retrieved his pistol and walked
across the street, where he observed that the front door of the Burson house
was damaged and ajar. He was crossing the street to the Burson house when
officers arrived on the scene. He stated that he returned to his house and
then heard a gunshot. He went to his backyard to check his property and
located one of the individuals that he saw near the Burson house. He
testified that, at gunpoint, he instructed the man to lie on the ground while he
called for help. At trial, he identified that man as Horton.
Corporal Henry Burak, with the Shreveport Police Department,
testified that he investigated the incident at the Burson house on September
11, 2017. Upon arrival at the house, he observed someone running through
the backyard, away from the residence. He identified Horton as the
individual he saw. He testified that he did not pursue Horton, but secured
the rear of the house. He noted an open window in the back of the house
near where Horton fled.
Corporal Clarence Wray, Jr., also of the Shreveport Police
Department, testified that he heard someone calling for help as he
approached the Burson house. He located Carpenter and an African
American man in Carpenterís backyard. Carpenter had a gun pointed at the
man, who was then handcuffed and taken into custody by the officers and
transported to the police station.
3
When Burson arrived at his house, he found that several rooms
appeared to have been ransacked, but nothing had been taken. He noted that
his power tools were on the kitchen table, ďlike they were ready to be just
taken,Ē instead of in the usual tool bags, indicating the intended thief had
been interrupted. He also noted that a window was broken in his daughterís
room at the back of the residence, and a sock was found outside of that
window. Burson testified that he did not give Horton or his accomplice
permission to enter his home.
Corporal Betsy Huey, of the Shreveport Police Departmentís Crime
Scene Unit, testified that she processed the scene at the Burson house. She
identified photographs of the house, including photographs of the damaged
front door. She testified that the interior of the house appeared to have been
ransacked.
Dr. Jessica Esparza, who was accepted as an expert witness in
forensic DNA analysis, testified that DNA obtained from a sock found
beneath the broken window at the Burson house matched reference samples
obtained from Horton. Dr. Esparza is employed as the DNA technical leader
at the North Louisiana Criminalistics Laboratory, where she has worked for
over ten years. She testified it is her responsibility to ensure the scientific
integrity of the section, train new analysts, and perform casework. She
earned her Bachelorís degree in biochemistry from Rice University in
Houston ,Texas, and holds a Ph.D. in molecular genetics and genomics from
Washington University in St. Louis. She is a member of the American
Academy of Forensic Science and has been qualified as an expert witness 33
times in cases in 14 different parishes and two federal jurisdictions.
4
On April 10, 2019, a unanimous jury found Horton guilty of simple
burglary of an inhabited dwelling. Hortonís motions for new trial and postverdict judgment of acquittal were denied by the district court.
On July 18, 2019, the state filed a second-felony habitual offender bill
against Horton based on his prior conviction by guilty plea of simple
burglary of an inhabited dwelling in 2015, also in the First Judicial District
Court. On September 16, 2019, Horton was adjudicated a second-felony
habitual offender and subsequently sentenced to 24 yearsí imprisonment at
hard labor. A motion to reconsider sentence was denied by the district court.
This appeal followed.
DISCUSSION
Assignment of Error: The Trial Court erred by imposing an
unconstitutionally harsh and excessive sentence on Calvin Horton, the
statutory maximum sentence of 24 years of hard labor without the
benefit of probation, parole, or suspension of sentence, based on the
commission of two non-violent crimes.
On review, Horton argues that his sentence is grossly
disproportionate when weighed against the harm done to society and that 24
yearsí imprisonment for two nonviolent offenses shocks the sense of justice.
He notes that the trial court imposed the maximum sentence without
ordering a presentence investigation report and provided little explanation
for the imposition of the maximum sentence. He argues that his sentence
was based upon the commission of two nonviolent offenses and that his
criminal history includes a number of dismissed charges and a number of
charges for which no disposition was noted. Citing Justice Crichtonís
concurrence in State v. Guidry, 16-1412 (La. 3/15/17), 221 So. 3d 815, He
argues that his sentence constitutes a gross misuse of the habitual offender
law in a way that violates constitutional prerogatives. He asserts that his
5
sentence makes no measurable contribution to the acceptable goal of
punishment and does nothing more than purposefully impose pain and
suffering.
In response, the state argues that the trial court properly considered all
relevant factors prior to sentencing, including Hortonís criminal history and
lack of remorse. It notes that the daytime burglary establishes the boldness
of Horton and his codefendant and that this burglary was only one of a series
of armed burglaries perpetrated by the two men. It further argues that
although this offense is not a crime of violence (despite two witnesses
hearing a gunshot), Hortonís criminal history shows a propensity for
violence. Specifically, it notes that since 2008, Horton has been arrested for
illegal possession of stolen things, illegal use of weapons, illegal possession
of a firearm by a juvenile, walking in roadway, domestic abuse battery,
aggravated battery, possession of a firearm by a convicted felon, multiple
charges of simple burglary of an inhabited dwelling, theft, and cruelty to
animals, both simple and aggravated. It also notes that Horton had his
probation revoked twice previously and was on parole at the time of this
arrest. Further, it specifically notes that several of the burglaries attributed
to Horton and his codefendant include firearms fitted with suppressors and
the killing of family pets.
Appellate courts apply a two-pronged test when reviewing a sentence
for excessiveness: (1) whether the trial court adequately considered the
guidelines established in La. C. Cr. P. art. 894.1, and (2) whether the
sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App. 2
Cir. 11/2/11), 77 So. 3d 1052.
6
This Court must first determine whether the record shows that the trial
court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The
trial judge is not required to list every aggravating or mitigating
circumstance so long as the record reflects that he adequately considered the
guidelines of the article. State v. Smith, 433 So. 2d 688 (La. 1983); State v.
DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-
0959 (La. 5/1/17), 219 So. 3d 332. Articulation of the factual basis for a
sentence is the goal of La. C. Cr. P. art. 894.1, rather than rigid or
mechanical compliance with its provisions. Where the record clearly shows
an adequate factual basis for the sentence imposed, remand is unnecessary
even where there has not been full compliance with La. C. Cr. P. art. 894.1.
State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry, supra.
In the present matter, the trial court considered factors relevant to
sentencing prior to sentencing Horton to the maximum sentence of 24 yearsí
imprisonment at hard labor, as a second-felony habitual offender. The
sentencing judge specifically noted he was basing his decision on the
testimony and evidence in the record. The trial court stated that Horton had a
significant criminal history and had failed to show any remorse for this
offense. It further noted the heinous nature of this offense. As to this prong
of the analysis of the appropriateness of the sentence, this Court finds that
the trial court adequately considered the guidelines set forth in La. C. Cr. P.
art. 894.1.
Next, this Court must determine whether the sentence is
constitutionally excessive. Even when it falls within statutory guidelines, a
sentence can be constitutionally excessive if: (1) the punishment is so
grossly disproportionate to the severity of the crime that, when viewed in
7
light of the harm done to society, it shocks the sense of justice, or (2) it
serves no purpose other than to needlessly inflict pain and suffering. State v.
Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.
1980); State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v.
DeBerry, supra.
The trial court is given wide discretion in the imposition of sentences
within the statutory limits, and the sentence imposed should not be set aside
as excessive in the absence of a manifest abuse of its discretion. State v.
Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.
App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not
determine whether another sentence may have been more appropriate but
whether the trial court abused its discretion. State v. Williams, supra; State
v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.
La. R.S. 14:62.2(B) provides that ď[w]hoever commits the crime of
simple burglary of an inhabited dwelling shall be imprisoned at hard labor
for not less than one year nor more than twelve years.Ē The sentence
enhancement arises from La. R.S. 15:529.1, which provides for the
sentencing of a second-felony habitual offender, in pertinent part, as
follows:
A. Any person who, after having been convicted within this
state of a felony, or who after having been convicted under the
laws of any other state or of the United States, or any foreign
government of a crime which, if committed in this state would
be a felony, thereafter commits any subsequent felony within
this state, upon conviction of said felony, shall be punished as
follows:
(1) If the second felony is such that upon a first
conviction the offender would be punishable by
imprisonment for any term less than his natural life, then
the sentence to imprisonment shall be for a determinate
term not less than one-half the longest term and not more
8
than twice the longest term prescribed for a first
conviction.
The Louisiana Supreme Court has recently addressed the
constitutionality of maximum sentences imposed on defendants via the
habitual offender law. State v. Kennon, 2019-00998 (La. 09/09/20), 2020
WL 5405710. The Kennon court vacated the defendantís 60-year sentence
for the sale of $350 worth of cocaine, the maximum sentence authorized as a
second time felony offender. Id. The court found that this sentence was
constitutionally excessive because the defendant had never been convicted
of a crime of violence and his nonviolent crimes had been sporadic. The
court noted that, considering the age of the defendant, the 60-year sentence
was effectively a life sentence. The court upheld the defendantís earlier
unenhanced sentences of 35 years at hard labor, to run consecutively. Id.
Unlike the defendant in Kennon, Hortonís long criminal history
indicates the undue risk that he will commit another crime. Hortonís
conduct certainly threatened harm to those around him, as he burgled
inhabited homes in the middle of the day. Further, Horton is 30 years old
and the imposition of the 24-year sentence is not an effective life sentence.
Based on the facts of this case and the likelihood that the crime would
occur again, the sentence imposed does not shock the sense of justice, nor is
it grossly disproportionate to the offense for which Horton was convicted.
This Court finds that the trial court appropriately considered all factors in the
second prong of sentencing Horton and that the imposition of 24 yearsí hard
labor on Horton as a second felony habitual offender is not constitutionally
excessive. The trial court was within its discretion in imposing the sentence,
and this Court cannot find that its purpose was to needlessly inflict pain and
9
suffering. For the foregoing reasons, this assignment of error is without
merit.
C

Outcome: For the aforementioned reasons, Hortonís sentence is AFFIRMED.

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