Opinion
No. 2008 KA 0169.
June 6, 2008.
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY, STATE OF LOUISIANA TRIAL COURT NUMBER 412783 HONORABLE WILLIAM J. KNIGHT, JUDGE PRESIDING.
Walter P. Reed, Covington, LA, Kathryn W. Landry, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana.
Jerry L. Fontenot, Covington, LA, Attorney for Defendant/Appellant, Anthony Johnson.
BEFORE: WHIPPLE, GUIDRY AND HUGHES, JJ.
Defendant, Talmage Galatas, was charged by bill of information with illegal possession of stolen things valued at over $500.00, a violation of LSA-R.S. 14:69. Defendant entered a plea of not guilty and was tried before a jury. The jury determined defendant was guilty.
The trial court sentenced defendant to serve a period of five years at hard labor, but suspended the sentence and placed defendant on active, supervised probation for five years with special conditions.
Defendant appeals, citing the following assignments of error:
1. The evidence was insufficient to support the conviction of possession of stolen property valued at more than $500.00.
2. The trial court erred in allowing testimony relative to the apparent theft of numerous items which were not found in the possession of defendant and, therefore, not relevant to the instant offense.
We affirm defendant's conviction, conditionally affirm his sentence, vacate a condition of his probation, and remand the matter to the district court.
FACTS
In the summer of 2005, Timothy Galatas and Guilio Giunta purchased a home located on Tag Along Road in Lacombe, Louisiana. In late August, as Hurricane Katrina approached the coastline, they evacuated to Jackson, Mississippi. Timothy's parents had been taken to his sister's home in Jacksonville, Florida by his brother, the defendant herein. Soon after the hurricane, Timothy's mother was hospitalized because she suffered a stroke. After learning of his mother's hospitalization, Timothy and Giunta traveled to Jacksonville to assist Timothy's parents.
Timothy worked as an operating-room nurse, and had previously performed temporary contracts away from Louisiana (commonly referred to as travel nursing). In the aftermath of Hurricane Katrina, Timothy signed a temporary employment contract with a hospital in the Jacksonville area. Timothy testified that he intended to return to his home in Lacombe following completion of his three-month contract and have his parents live with him.
While in Jacksonville, Timothy agreed to allow defendant to live in his Lacombe residence. The camper that defendant lived in had been damaged, and his business office had been flooded. Defendant agreed to pay Timothy's monthly payment and utilities, and defendant would be able to operate his extermination business (Galatas Systems) from his brother's residence.
In late September or early October, Timothy and defendant "had words" following an attempt by Timothy's other siblings to place both parents into a nursing home in Florida. Following this verbal confrontation, defendant told Timothy that he was "going to get even" for blocking the attempts to place their parents into a nursing home. Questions and tensions also arose between Timothy and his siblings over how their parents' finances were being handled.
Timothy requested the State of Florida conduct an evaluation as to whether his parents needed to be placed into a nursing home. The results of the evaluation indicated that neither of his parents required nursing-home care.
Despite defendant's agreement to pay the monthly payment and utilities on Timothy's Lacombe residence, the payments were not made. Timothy later discovered that he had lost possession to his home because the monthly payment had not been paid. On December 7, 2005, Timothy returned to his Lacombe residence in a U-Haul moving truck to move his possessions from the house. Timothy entered the house and discovered that everything except for a sofa and a table had already been removed. According to Timothy, the house had been "trashed with beer bottles," and the key he had given to defendant was lying on the kitchen table. There was no sign of forced entry into the house. Timothy contacted defendant and asked where all his belongings were. Defendant denied he had any of his brother's items and suggested Timothy contact the police.
Timothy contacted the St. Tammany Parish Sheriff's Office, and soon made a list of items that were missing from his home. After reporting the missing items, Timothy returned to Jacksonville.
Sergeant Joseph Picone of the St. Tammany Parish Sheriff's Office began his investigation of the complaint shortly after Christmas, 2005. Although Timothy suspected defendant was responsible for the missing items, Sergeant Picone's investigation included a canvassing of the neighborhood where Timothy's home was located. During his canvass, Sergeant Picone encountered Nicole Belsome, a neighbor who lived across the street from Timothy.
According to Belsome, shortly after the hurricane, a man appeared at Timothy's residence and stated that he was Timothy's brother from Chalmette and that he would be working his business from the house. For the next several weeks, Belsome observed activity at the residence. Then, one day in December, Belsome noticed a U-Haul truck at the residence, and she saw defendant and others moving things from the residence into the truck. Belsome testified that the U-Haul was there for several days and that she even saw defendant moving things out during the night. Belsome testified that it took defendant much longer to move out of Timothy's house than it took him to move into the house. Belsome identified defendant from a photographic lineup as the person who moved into Timothy's residence and who moved out of the residence.
Prior to speaking with defendant, Sergeant Picone acquired a U-Haul equipment contract in defendant's name for the rental of a truck on December 3, 2005.
On January 26, 2005, Sergeant Picone contacted defendant, advised him of the investigation, and asked that he come to the police department to speak about the investigation. Defendant arrived at Sergeant Picone's office and was advised of his Miranda rights. After waiving his Miranda rights, defendant was interviewed regarding Timothy's missing possessions.
Defendant denied that he had taken any of Timothy's belongings, and claimed he only removed his own belongings using his brown pickup truck. Defendant offered Sergeant Picone the opportunity to search his current residence. When Sergeant Picone accepted the offer and asked if they could go immediately to defendant's residence, defendant initially hesitated and inquired whether the search could be conducted the next day. However, defendant subsequently agreed that the search could take place that day.
Defendant accompanied the police to his house. When they arrived, Les Moore, one of defendant's employees, was already inside the residence. During the search, several items that Timothy had reported as missing from his residence were located in a spare bedroom in defendant's house.
Detective Corey Crowe of the St. Tammany Parish Sheriff's Office assisted in the search and testified that the following items were recovered from defendant's residence: music CDs, a cable TV reception box, a JVC video camera, a mirror, and a remote control for a karaoke player. Defendant told Crowe that over the years, he had acquired items from Timothy that were transferred back and forth between them. Defendant was arrested and originally charged with simple burglary. According to Detective Picone, defendant claimed he only used his brown pickup truck to move his belongings from Timothy's residence to his new home, and that he moved out at the end of September, 2005. At no time did defendant tell Detective Picone that Timothy had given all his possessions to him.
As the police were driving away from defendant's residence, they realized that the JVC video camera they had seen in defendant's residence matched the description of the JVC video camera Timothy reported as missing. The police returned to defendant's residence and obtained consent to search for the JVC video camera and seized it.
Moore testified on defendant's behalf. According to Moore, defendant restarted his business from Timothy's Lacombe residence following the hurricane because the business office had been flooded. Moore testified that he did not participate in moving any of defendant's belongings into Timothy's residence. Moore stated he helped move materials for defendant's business from Timothy's house to defendant's new house off Dedinger Road in Lacombe. According to Moore, sometime in November, 2005, he and Barbara Hall, the office manager, loaded a moving truck in about an hour and fifteen minutes and took it over to defendant's new house. According to Moore, everything he moved was packed in boxes, but he specifically remembered moving a cable TV reception box.
The cable TV reception box recovered from defendant's residence was matched by serial number to the cable TV reception box issued to Timothy Galatas.
Garland Galatas, the defendant's older brother, testified on defendant's behalf. Garland resided in California. Following Hurricane Katrina, Garland traveled to Jacksonville to see his parents. According to Garland, he, defendant, Giunta, Timothy, and Beverly Misrendino (another Galatas sibling) met in the parking lot of the hospital in Jacksonville, where his mother had been admitted. During this meeting, Garland claimed Timothy stated he was enjoying Florida so much he did not plan to return to Louisiana. Timothy indicated to defendant that he could live in his Lacombe house and anything that was in the house was his, because he did not want it. Garland admitted he never contacted the police or the prosecutors with this information in an attempt to stop the prosecution of defendant.
Giunta denied that he nor Timothy ever indicated they were not returning to Louisiana. Giunta testified that he and Timothy had purchased the Lacombe house five weeks prior to the hurricane and had spent a lot of time fixing the house.
Misrendino testified that after the hurricane, defendant brought their mother to Jacksonville, then returned to Slidell. Shortly thereafter, their mother was hospitalized because of a stroke. Misrendino testified that she was present in the hospital parking lot when Timothy stated defendant could use his Lacombe house because he was not returning to Louisiana.
The State called Sergeant Picone as a rebuttal witness. Sergeant Picone testified that at no time did Moore claim responsibility for mistakenly moving any of Timothy's belongings into defendant's house, nor was he ever contacted or told by any of defendant's siblings that they heard Timothy give defendant permission to dispose of his belongings.
Defendant did not testify.
SUFFICIENCY OF THE EVIDENCE
In his first assignment of error, defendant argues the evidence is insufficient to support his conviction. Defendant presents a twofold argument. First, defendant argues the State failed to present sufficient evidence that the property at issue was actually worth in excess of $500.00. Second, defendant argues the evidence was insufficient to prove guilty knowledge and/or intent on his part.
A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const. amend. XIV; La.Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See LSA-C.Cr.P. art. 821(B). Incorporated into Article 821 is the standard of review articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979), for testing the overall evidence, both direct and circumstantial, for reasonable doubt. Furthermore, when analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the trier of fact must be satisfied that the overall evidence excluded every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585, pp. 4-5 (La.App. 1st Cir. 6/21/02), 822 So. 2d 141, 144. When circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So. 2d 372, 378 (La. 1982).
The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. This Court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Dugas, 96-1006, p. 8 (La.App. 1st Cir. 2/14/97), 691 So. 2d 197, 201.
Louisiana Revised Statute 14:69(A) defines illegal possession of stolen things as:
[t]he intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
Louisiana Revised Statute 14:69(B)(1) sets forth the punishment for illegal possession of stolen items when the value of the things is $500.00 or more. The State must present evidence of the value of the stolen items at the time of the theft. State v. Dugas, 96-1006 at p. 8, 691 So. 2d at 201.
In the present case, defendant argues there was no evidence presented that would establish the value of the JVC video camera, the mirror, the cable box, or the remote control for the karaoke machine. Defendant argues the only evidence relative to any value was in reference to the CDs used in the karaoke machine. Timothy estimated the approximate value of his CDs recovered from defendant's house was $1,500.00 to $2,000.00.
Defendant argues on appeal that Timothy was basing his estimate of the value on the original purchase price and not current values. Relying on State v. Williams, 610 So. 2d 129 (La. 1992) (per curiam), defendant maintains that evidence of the original purchase price without any evidence of the current condition of the items is insufficient to establish the value of the items.
We disagree. In State v. Williams, 610 So. 2d at 130, the item at issue was a stolen vehicle. The vehicle had been purchased ten years prior to its theft and the victim testified that at the time of the vehicle's disappearance, it had maintenance problems to the extent that the owner was planning to trade the car in. Further, in State v. Williams, the State failed to introduce any photograph of the vehicle at the time of the theft or describe the extent of the maintenance problems. Thus, the court modified the verdict and ordered entry of conviction of the lesser offense of possession of stolen property valued at less than $100.00.
In the present case, Timothy testified that he purchased a karaoke machine in 2002 in conjunction with his catering business. Timothy testified that the karaoke CDs had graphics embedded in them and must be played by a certain type of machine. Timothy estimated the approximate value of the missing CDs was between $1,500.00 — $2,000.00.
Unless it is shown the owner lacks knowledge of the value of a movable, his testimony as to value is generally admissible, with its weight being left to the jury. State v. McCray, 305 So. 2d 433, 435 (La. 1974). During trial of this matter, defense counsel had ample opportunity to cross-examine Timothy regarding the value of these CDs; however, no questions were asked by defense counsel challenging Timothy's estimated value of these CDs. While we agree no evidence was introduced regarding the value of anything other than the music CDs, Timothy's testimony provided a reasonable basis for the jury to conclude that the value of Timothy's karaoke-music CDs found in defendant's residence exceeded $500.00 at the time of the offense. This portion of the assignment of error is without merit.
In defendant's second argument under this assignment of error, he contends the State failed to prove he had guilty knowledge that the items were stolen or even in his possession.
Illegal possession of stolen things is a general intent crime. See State v. Davis, 371 So. 2d 788, 790 (La. 1979). General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10(2). Though intent is a question of fact, it need not be proven as a fact; it may be inferred from the circumstances of the transaction. State v. Davis, 371 So. 2d at 790.
The testimony at trial established that Timothy gave defendant permission to use his house in Lacombe following Hurricane Katrina. Defendant moved into the house and operated his business from the premises. During his stay at Timothy's house, defendant and Timothy had an argument regarding the care for their parents, and defendant threatened revenge against Timothy. Despite defendant's statement that he would pay the monthly payment on Timothy's house, Timothy discovered that this had not been done, and Timothy lost possession of his house. When Timothy returned from Florida to collect his possessions, practically all of his belongings were missing. The key he had provided the defendant with was on a kitchen table and there was no sign of forced entry. Timothy contacted defendant and asked where his belongings were, but defendant denied that he had taken them. Some of Timothy's possessions were subsequently found in defendant's new residence.
Defendant also told Sergeant Picone that he alone moved his items from Timothy's house using his personal vehicle, a brown pickup truck. However, Sergeant Picone's investigation revealed defendant had rented a U-Haul truck and had been seen moving items out of Timothy's house with the help of other people. Belsome testified that defendant was moving many more items out of the house than he had moved into the house.
Further, despite the testimony of Galatas and Misrendino that they both heard Timothy tell defendant he had no intention of returning to Louisiana and that defendant could have whatever he wanted from the Lacombe house, none of this information was provided to the police or district attorney in order to prevent the prosecution of their brother. Moreover, Timothy denied ever making such a statement. Although Moore testified he merely moved items that had already been boxed up, he never came forward prior to his trial testimony to assert that some of Timothy's belongings may have been taken to defendant's new residence by mistake.
As further support of this argument that the evidence was insufficient, defendant contends that the U-Haul receipt indicating defendant rented a U-Haul on December 3, 2005 for just a few hours directly conflicts with Belsome's testimony that defendant used a U-Haul for several days. We disagree. First, defendant may not have been the individual to rent the particular U-Haul Belsome observed, since she testified that several people were assisting defendant. Further, when speaking to the police, defendant claimed to have only used his personal pickup truck to move his belongings out of his brother's house.
Nonetheless, the jury was able to infer from the facts of this situation that defendant possessed the requisite criminal intent, that he knew or had good reason to believe Timothy's possessions had been removed from the residence without permission, and that some of the articles were at defendant's residence. Viewing the evidence in the light most favorable to the prosecution, we find the evidence sufficiently supports defendant's conviction for possession of stolen things valued at over $500.00.
This assignment of error is without merit.
TESTIMONY REGARDING ITEMS NEVER RECOVERED
In his second assignment of error, defendant argues the trial court erred in allowing testimony relative to the apparent theft of numerous items, which were not found in the possession of defendant and, therefore, not relevant to the instant offense.
The record indicates that Timothy testified that his list of missing items included Italian crystal, paintings, a few mirrors, a karaoke system, two Kitchen Aid mixers, cake decorating equipment, catering supplies, two laptop computers, a personal computer, a printer, and a brand new queen-size bed. None of these items were recovered by the police.
Insofar as the testimonial evidence is concerned, the record reflects that the defendant did not lodge a contemporaneous objection to the testimony in question. Under LSA-C.Cr.P. art. 841, a contemporaneous objection is required to preserve an error for appellate review. The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Hilton, 99-1239, p. 12 (La.App. 1st Cir. 3/31/00), 764 So. 2d 1027, 1035, writ denied, 2000-0958 (La. 3/9/01), 786 So. 2d 113. The defendant did not make a contemporaneous objection regarding Timothy's testimony about the missing items. It is well settled that irregularities or errors cannot be availed of on appeal if they are not objected to at the time of the occurrence. State v. Walker, 94-0587, p. 4 (La.App. 1st Cir. 4/7/95), 654 So. 2d 451, 453, writs denied, 95-1124 1125 (La. 9/22/95), 660 So. 2d 470. Since the defendant failed to lodge a contemporaneous objection on this ground during trial as required by LSA-C.Cr.P. art. 841, he is precluded from raising the issue on appeal. See also LSA-C.E. art. 103(A)(1).
REVIEW FOR ERROR
This Court reviews the record for error under LSA-C.Cr.P. art. 920(2). 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. See State v. Price, 2005-2514, pp. 18-22 (La.App. 1st Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), ___ So. 2d ___.
Our review has revealed an error in the trial court's imposition of restitution. At sentencing the trial court stated:
You'll make restitution in the amount to be determined by the probation officer. The Court will hold open the issue of restitution, in the event that there's a disagreement over that.
Considering the foregoing, we find the trial court failed to set a specific amount of restitution to be paid as a condition of defendant's probation. When a trial court suspends the imposition or execution of sentence and places a defendant on probation, the court is required to set the amount of restitution. LSA-C.Cr.P. arts. 895(A)(7) 895.1(A); see also State v. Cortina, 632 So. 2d 335, 338 (La.App. 1st Cir. 1993). In the present case, the condition of probation imposed is defective because of the trial court's failure to state a specific amount to be paid in restitution.
Because of this error, we vacate this particular condition of probation and remand this matter to the district court solely for imposition of a new condition of restitution.