Opinion
No. 2009 KA 0008.
September 11, 2009.
ON APPEAL FROM THE 23RD JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ASCENSION STATE OF LOUISIANA, DISTRICT COURT NOS. 21509 AND 21510, THE HONORABLE RALPH TUREAU, JUDGE PRESIDING.
Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, La., Counsel for Appellee State of Louisiana.
Holli Herrle-Castillo, Marrero, La., Counsel for Defendant/Appellant Jandrell Brown.
BEFORE: CARTER, C.J., GUIDRY AND PETTIGREW, JJ.
The defendant, Jandrell Brown, was charged by bill of information no. 21509 with theft valued over $500, a violation of La.R.S. 14:67, and by bill of information no. 21510 with attempted theft valued over $500, a violation of La.R.S. 14:27 and La.R.S. 14:67. The defendant entered a plea of not guilty to both charges. Following a jury trial, she was found guilty as charged under both bills of information.
Co-defendants, Rashard Poche and Jamilyn Brown, also were charged by the same bills of information with the same charges. They were tried with the defendant but separately appeal from their convictions. See State v. Poche, 2009-0007 (La. App. 1 Cir. 9/11/09) (unpublished); State v. Brown, 2009-0010 (La. App. 1 Cir. 9/11/09) (unpublished).
On bill of information no. 21509, the defendant was sentenced to ten years at hard labor. On bill of information no. 21510, she was sentenced to one year at hard labor, to run concurrently with the sentence imposed on bill of information no. 21509. The defendant moved for reconsideration of the sentence imposed under bill of information no. 21509, but the motion was denied.
The defendant now appeals, contending the evidence was insufficient to support the convictions under both bills of information and the sentence imposed under bill of information no. 21509 was excessive. For the following reasons, we affirm the convictions and sentences on bills of information nos. 21509 and 21510.
FACTS
On March 17, 2007, Jonathan Whitehurst, asset protection coordinator for the Walmart in Prairieville, saw a man walking through the electronics department of the store and placing two plasma televisions into a shoppingcart. The televisions were priced at $748 and $378. The man bypassed the registers, ran past the door greeter, and ran out of the doors without paying. Whitehurst chased the man into the parking lot. After the man realized Whitehurst was chasing him, he "dumped" the televisions and began looking for a car, yelling, "[W]here'd you go[?]" A silver Kia with a paper license plate, its trunk open, and at least three occupants inside, drove toward the man. The man jumped into the back of the car, which proceeded south on Airline Highway.
Whitehurst reported the incident to the Ascension Parish Sheriff's Office, and a deputy arrived at the store. While Whitehurst and the deputy were reviewing surveillance video, a customer alerted them that her husband was talking to her on a cell phone and had information concerning the incident. The deputy spoke to the customer's husband and radioed the information to his dispatch.
According to Whitehurst, the store surveillance tapes indicated that, approximately one minute before the man jumped into the silver Kia, two black females had loaded Magnalite pots and clothes into the same car and entered the vehicle. The women had just exited the Walmart with two sets of Magnalite pots and a large bag, after one of the women stood directly in front of the door greeter, blocking his view of the other woman. The surveillance tapes showed that, before exiting the store, the women put items from the clothing department into a large bag. The black male talked to the two black females when they were in the ladies-wear department with the Magnalite pots in their cart. After talking to the women, the black male went to the electronics department where Whitehurst first observed him. Before thewomen went to ladies-wear, they had been in house wares. They had entered the store with only a small bag. The surveillance tapes referenced by Whitehurst were played for the jury at trial.
Whitehurst identified the Walmart apprehension report concerning the incident with the televisions. The report listed the person apprehended as "Rashard Poche."
On March 17, 2007, Stephanie Rodrigue, was employed as an asset protection coordinator for the Walmart in Gonzales. After speaking to Whitehurst on the telephone, she observed a black male walking near the televisions and saw a woman and a pregnant woman (whom she later learned was Jamilyn Brown) putting a television into a shopping cart. The television was priced at $672. Rodrigue asked the women if they needed help, and Jamilyn stated, "[N]o," but asked where the layaway department was located. Rodrigue alerted her store manager and a detective in the store. The black male and the two black females left the store without the buggy and television, which was discovered in the candy department, approximately fifty feet from the doors.
Co-defendant Jamilyn Brown's name is spelled more than one way in the record. We use the spelling appearing on the bills of information.
The police went to the Walmart in Gonzales after learning that the shoplifters in the silver Kia had been followed there after they left the Walmart in Prairieville. When the police arrived, two white females, Michelle Hebert and Phyllis LaCoste, were in the Kia. The two black females and a black male already had fled the scene. Hebert and LaCoste indicated they were fromKillona, Louisiana. Hebert claimed that she had been sleeping until one of the black females got into the car at the Walmart in Prairieville and yelled, "[G]o, go, go." The car contained two boxes of Magnalite pots and numerous items of clothing with the price tags attached. There were no receipts in the vehicle for any of the items, and none of the occupants provided any receipts.
The transcript mistakenly spells the name of the town as "Colona."
LaCoste identified the co-defendants in court as her "full brother," his girlfriend, and his girlfriend's sister. She indicated the co-defendants and her girlfriend — Hebert — had been together at the Walmart in Prairieville. She claimed that Jamilyn and the defendant needed to go to layaway and returned with two boxes of pots with pink stickers on them. LaCoste denied seeing any new clothes. She stated that Poche also went into the store. She testified that she picked up Poche after she heard hollering that someone was chasing Poche. LaCoste claimed she then drove for awhile with the co-defendants and Hebert until she arrived at the Walmart in Gonzales. She indicated that Poche's girlfriend, who was pregnant, stated she had to use the bathroom and went into the store with her sister. She claimed Poche subsequently went into the store to check on his girlfriend.
LaCoste later testified that Poche was her brother "in [her] heart[,]" and she had known him for four or five months.
LaCoste conceded that she admitted a crack pipe found in the silver Kia belonged to her, but claimed she did so to protect Hebert's nursing career. She also conceded that she had served time for issuing worthless checks. She claimed shoplifting charges against her in 1992 and 1993 were thrown out because her then girlfriend had been the actual shoplifter. LaCosteacknowledged that she was on parole for three counts of armed robbery, but claimed that she had just been hitchhiking with the actual robber. Additionally, LaCoste stated she was "bipolar manic depressant[.]"
Poche was apprehended at Terry's Exxon, across Airline Highway from the Walmart in Gonzales. His shirt had fresh fold marks and looked brand new. Poche did not provide any identification but indicated he was from Killona, Louisiana.
The two black females, the defendant and Jamilyn, were apprehended across the parking lot, in front of a Payless shoe store and Big Lots store, approximately seventy-five yards from the Walmart in Gonzales. The defendant indicated that she, Jamilyn, Poche, Hebert, and LaCoste were together in the silver Kia at the Walmart in Prairieville and left that Walmart and traveled to the Walmart in Gonzales.
Mark Anthony Boudreaux, Jr., the store manager of the Walmart in Gonzales on March 17, 2007, testified that when the pregnant woman (Jamilyn) was arrested, she stated, "I told you we shouldn't have come here and steal; they're nothing but a bunch of racists."
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the defendant argues her conviction under bill of information no. 21509 was based on insufficient evidence because the merchandise she was alleged to have taken was worth only $466.89, and the evidence failed to establish that she was in any way involved with the theft of the televisions by Poche. She also argues her conviction under bill of information no. 21510 was unsupported by any evidence of herbeing in the Walmart in Gonzales or of her attempting to steal the television from that store.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Wright, 98-0601 (La. App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, assuming every fact to be proved that the evidence tends to prove, in order to convict, every reasonable hypothesis of innocence is excluded. Wright, 730 So.2d at 486; see La.R.S. 15:438.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. Wright, 730 So.2d at 487. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La.R.S. 14:24. However, the defendant'smere presence at the scene is not enough to concern him in the crime. State v. Neal, 2000-0674 (La. 6/29/01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Only those persons who knowingly participate in the planning or execution of a crime may be said to be concerned in its commission, thus making them liable as principals. Neal, 796 So.2d at 659. A principal may be connected only to those crimes for which he has the requisite mental state. Neal, 796 So.2d at 659. It is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed; however in such a case, it is necessary that the principal actually be aware of the accomplice's intention. State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 ( per curiam).
In State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, the Louisiana Supreme Court set forth the following precepts for appellate review of circumstantial evidence in connection with review of the sufficiency of the evidence:
On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events." Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.
The jury is the ultimate factfinder of "whether a defendant proved his condition and whether the state negated that defense." The reviewing court "must not impinge on the jury's factfinding prerogative in a criminal case except to the extent necessary to guarantee constitutional due process."
Mitchell, 772 So.2d at 83 (citations omitted).
Further, the Mitchell court cautioned:
"The actual trier of fact's rational credibility calls, evidence weighing, and inference drawing are preserved . . . by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt." The reviewing court is not called upon to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Rather, the court must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt. The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. Finally, the "appellate court is constitutionally precluded from acting as a 'thirteenth juror' in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact."
Mitchell, 772 So.2d at 83 (citations omitted).
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 ( per curiam).
Theft from Walmart in Prairieville
The defendant argues that there was insufficient evidence to support her conviction for theft, value $500 or more, from the Walmart in Prairieville because her theft of pots and clothing was valued less than $500. The defendant's argument fails, however, if she was a principal to Poche's theft of the televisions, valued at $1126, from the Walmart in Prairieville. See State v. Coleman, 2002-0345 (La. App. 5 Cir. 9/18/02), 829 So.2d 468, 472 ("A principal to the crime of theft is held culpable for the entire value of the merchandise.").
In his appeal before this court, Poche does not challenge his conviction under bill of information no. 21509. Theft is completed upon the exercise of wrongful dominion or unauthorized control of the object of the theft whether or not the item is removed from the general area where it is kept. See State v. Bean, 2004-1527 (La. App. 1 Cir. 3/24/05), 899 So.2d 702, 710, writ granted on other grounds, 2005-1106 (La. 3/8/06), 925 So.2d 489, writ denied, 2005-1106 (La. 11/3/06), 940 So.2d 652.
Theft is the misappropriation or taking of anything of value that belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct practices, or representations. La.R.S. 14:67A. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. La.R.S. 14:67A.
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was a principal to the theft of the televisions from the Walmart in Prairieville. As noted below in our discussion of the proof of specific intent to commit theft from the Walmart in Gonzales, the State argued to the jury that the actions of the defendants at the Walmart in Prairieville and the Walmart in Gonzales had to be viewed together. The State also relied on the evidence indicating that the defendants had a relationship with each other and together went to, and left from, the Walmart in Prairieville and the Walmart in Gonzales, communicating with each other in both stores. Evidence at trial also indicated the defendant and Jamilyn loaded the items they had taken from the Walmart in Prairieville into the car. As Poche exited the store with the stolen televisions, the car in which they were riding (with the trunk still open) drove to the fleeing Poche, allowing him to escape from Whitehurst.
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light mostfavorable to the State, could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was a principal to the theft from the Walmart in Prairieville.
Attempted theft from Walmart in Gonzales
The defendant also argues that there was insufficient evidence to support her conviction for attempted theft from the Walmart in Gonzales because no one identified her as putting the television in the basket, and even if there had been such proof, it is not illegal to leave a television in a shopping cart.
A rational trier of fact could find beyond a reasonable doubt that the defendant put the television inside the shopping cart in the Walmart in Gonzales. Initially, the security tapes from the Walmart in Prairieville showed that the defendant and Jamilyn entered the store together, worked as a team to steal items from the store, and left the store together. LaCoste indicated that the defendant and Jamilyn also entered the Walmart in Gonzales together and that Jamilyn was pregnant. Testimony from Rodrigue indicated that Jamilyn, who was pregnant, and another woman with her put a television in a shopping cart. Shortly thereafter, the defendant, Jamilyn, and Poche were seen outside the store. The defendant and Jamilyn were arrested approximately seventy-five yards from the store. As Jamilyn was being arrested with the defendant she was heard to state, "I told you we shouldn't have come here and steal; they're nothing but a bunch of racists."
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward theaccomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La.R.S. 14:27A. Mere preparation to commit a crime shall not be sufficient to constitute an attempt. La.R.S. 14:27B(1).
The essential elements of an attempt are an actual specific intent to commit the offense and an overt act directed toward that end. State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. As applicable to the instant facts, the State had the initial burden of proving beyond a reasonable doubt that the defendant had the specific intent to take something of value that belonged to another, without the consent of the other, and that she intended to deprive the other permanently of the thing of value. Specific criminal intent is that state of mind that 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). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Ordodi, 946 So.2d at 661. The determination whether specific intent exists is a fact question for the jury. Ordodi, 946 So.2d at 661.
Viewing the defendant's actions in the light most favorable to the prosecution, a rational trier of fact could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, that the defendant had the requisite specific intent to commit a theft from the Walmart in Gonzales. The State argued to the jury that after the defendants were forced to leave the Walmart in Prairievillewithout the televisions taken from the store, they proceeded directly to the Walmart in Gonzales to steal a television. Just as they had done at the Walmart in Prairieville, they left LaCoste at the wheel of their car and proceeded into the Walmart in Gonzales. Inside the store, the defendants went directly to the area where the televisions were located, and the defendant and Jamilyn loaded a shopping cart, later discovered abandoned fifty feet from the door, with another television. Evidence at trial indicated that the defendants had a relationship with each other and together went to, and left from, the Walmart in Prairieville and the Walmart in Gonzales after communicating with each other in both stores. These circumstances support the jury's determination that the defendant specifically intended to commit theft of a television from the Walmart in Gonzales.
Having found that the defendant possessed the requisite specific intent to commit theft, we must now review whether sufficient evidence was presented to prove beyond a reasonable doubt to a rational juror that the defendant did or omitted an act "for the purpose of and tending directly toward the accomplishing of her object," sometimes referred to as an overt act. See La.R.S. 14:27A and Reporter's Comment (1950) thereto. The attempt statute itself makes a distinction between an action that is mere preparation, which is insufficient to support a finding of an attempt, and an action for the purpose of, and tending directly toward, accomplishing an object, which is an essential element of the attempt statute. Ordodi, 946 So.2d at 661-662. "Preparation" has been generally defined as the devising or arranging of the means necessary for the commission of the crime. Ordodi, 946 So.2d at 662.
The difference between mere preparation and an overt act is not precisely defined. The Comment to the attempt statute states "[t]he distinction between preparation and an overt act sufficient for an attempt is one of nearness and degree which defies concise definition, and which can best be approximated by an examination of the jurisprudence." See La.R.S. 14:27, Reporter's Comment (1950). Thus, a defendant's actions that are mere preparation and those which are an act "for the purpose of and tending directly toward the accomplishing of [an] object" may be understood to exist on a continuum. Ordodi, 946 So.2d at 662.
Where a defendant's actions fall on the continuum is a fact question for the jury or trier of fact. Ordodi, 946 So.2d at 662. In determining whether a defendant's action is an overt act that is an attempt, the totality of the facts and circumstances presented by each case must be evaluated. The overt act need not be the ultimate step toward or the last possible act in the consummation of the crime attempted. Ordodi, 946 So.2d at 661-662. The distinction between actions that are mere preparation and actions that constitute an overt act sufficient for attempt is one of degree and is dependent on the particular facts of each case. Ordodi, 946 So.2d at 661-662. Thus, the determination of a defendant's actions as being mere preparation or acts sufficient to constitute an attempt will be fact specific to each case. Ordodi, 946 So.2d at 662.
In making the factual determination where the actions of the defendant fell on the continuum between actions of mere preparation and actions for the purpose of and tending directly toward the accomplishing of her object, the jury found that the defendant had committed actionssufficient to constitute an attempt. In reviewing the evidence of the defendant's actions outlined above, we cannot say that the jury's determination is irrational under the facts and circumstances presented to them. Thus, we hold that a rational juror could find that the evidence proved beyond a reasonable doubt that the defendant committed an act for the purpose of and tending directly toward the accomplishing of theft.
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant had the specific intent to commit theft from the Walmart in Gonzales and committed an act for the purpose of and tending directly toward accomplishing her goal. The State's theory at trial was that the co-defendants worked as a shoplifting team and went to the Prairieville Walmart to steal pots, clothing, and televisions. When they were forced to leave the Walmart in Prairieville without the televisions, the group went to the Walmart in Gonzales to steal a television. The defense at trial was that there was no team of shoplifters in this case and that the defendant and Jamilyn were unaware of any plan to steal the television from the Prairieville Walmart. The verdict rendered against the defendant indicates that the jury rejected the defense theory and accepted the theory of the State. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in the instant case.
This assignment of error is without merit.
EXCESSIVE SENTENCE
In assignment of error number 2, the defendant argues a maximum sentence of ten years for shoplifting a set of pots, a few pieces of clothing, and for assisting in the attempted theft of two televisions was unconstitutionally excessive. She does not challenge the sentence imposed under bill of information no. 21510.
Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Hurst, 99-2868 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. Hurst, 797 So.2d at 83. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. Hurst, 797 So.2d at 83. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 797 So.2d at 83.
Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. La.R.S. 14:67B(1). Under bill of information no. 21509, the defendant was sentenced to ten years at hard labor.
In imposing sentence, the trial court noted: the defendant was thirty-three years old; she was a third-felony offender; the court had ordered a pre-sentence investigation (PSI) and had received the PSI; the PSI recommended that the defendant be sentenced to the maximum sentence of ten years at hard labor; and after thoroughly considering the report and the facts of the case, the court believed the defendant should be sentenced in accordance with the recommendation of the PSI. The PSI noted that the defendant had numerous arrests and convictions, and the instant offense was her third-felony conviction related to the misappropriation of property. Subsequently, the court denied the defendant's motion to reconsider sentence, citing the fact that she was a third-felony offender.
The sentence imposed under bill of information no. 21509 was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Miller, 96-2040 (La. App. 1 Cir. 11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459. This was a most serious offense because it was part of a pattern of thefts. Additionally, becausethe defendant and her accomplices targeted a busy store for their thefts, they created danger to the store personnel and the public during the commission of the offenses and during their flight to avoid capture. The defendant was a worst offender because she refused to stop committing thefts even though she had previously been arrested, convicted, and incarcerated for thefts and other offenses.
This assignment of error is without merit.
REVIEW FOR ERROR
The defendant requests that this court examine the record for error under La. Code Crim. P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant. Under Article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123-125 ( en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.