Opinion
2014 KA 0061
07-21-2014
STATE OF LOUISIANA v. JAMES ALAN HODA
Walter P. Reed District Attorney Covington, Louisiana And Kathryn Landry Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Mary E. Roper Baton Rouge, Louisiana Attorney for Defendant/Appellant James Alan Hoda
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 419149, DIVISION "E"
HONORABLE WILLIAM J. BURRIS, JUDGE
Walter P. Reed
District Attorney
Covington, Louisiana
And
Kathryn Landry
Baton Rouge, Louisiana
Attorneys for Appellee
State of Louisiana
Mary E. Roper
Baton Rouge, Louisiana
Attorney for Defendant/Appellant
James Alan Hoda
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, J.J.
McDONALD, J.
Defendant, James Alan Hoda, was charged by amended bill of information with theft of goods valued over $500.00 (count one), a violation of La. R.S. 14:67(B)(1) (prior to 2010 amendment), a felony, and with contracting without authority (count two), a violation of La. R.S. 37:2160, a misdemeanor. He pled not guilty. After a simultaneous jury trial (count one) and bench trial (count two), defendant was found guilty as charged on both counts. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied by the trial court. On count one, the trial court sentenced defendant to thirty months at hard labor. On count two, the trial court sentenced him to three months in the parish jail. The trial court ordered these sentences to run concurrently. Defendant moved for reconsideration of sentence, but the trial court denied that motion as well. He now appeals, alleging two assignments of error. For the following reasons, we affirm defendant's conviction and sentence on count one. With respect to his conviction and sentence on count two, the misdemeanor charge is not appealable and the defendant should have applied for a writ of review. However, we choose to exercise our supervisory jurisdiction and, finding no merit to his claim of an excessive sentence, we also affirm the sentence on count two.
FACTS
When Hurricane Katrina struck in 2005, Stan and Gail Dupuy owned a house on Carr Drive in Slidell. As a result of the hurricane, the house suffered damage that would require extensive repairs. Around late May or early June of 2006, Mrs. Dupuy found an advertisement for Hoda Construction on her vehicle. The flyer listed defendant as a general contractor. Mrs. Dupuy gave the flyer to Mr. Dupuy, and suggested that he call about the repairs needed for their house.
Mr. Dupuy contacted defendant, who represented that he was a licensed and insured contractor. Together, they went to the Carr Drive house so that defendant could provide an estimate to replace the siding on the home and to paint the new siding. Approximately a week after the site visit, defendant presented Mr. Dupuy with a contractor's invoice. This invoice listed the materials needed for the job to commence, a detailed corresponding price list for these materials, and terms relating to the overall labor costs for the project. The invoice listed $6,463.75 worth of materials required to start the job, and it stated that a labor rate of $880.00 per day would be charged, but that the total amount owed would not exceed $11,536.75. This invoice was dated June 26, 2006.
Mr. Dupuy received the invoice on the date it was prepared, and he immediately wrote Hoda Construction a check in the amount of $6,463.75 for materials. Defendant and his employees began the project with demolition work on the following Monday, July 3, 2006. This work lasted approximately one week, and it mainly involved the removal of the existing, damaged siding. On July 7, 2006, Mr. Dupuy wrote Hoda Construction a check for $4,950.00, presumably for the first week's labor.
After the demolition work was completed, defendant still had not delivered the required materials to the job site. He told Mr. Dupuy that the materials would arrive "in a couple of days." At that point, defendant brought up other projects that he could work on in the meantime, such as reinstalling windows and re-hanging doors. Each time defendant suggested a side project, he told Mr. Dupuy that it would not cost much more. Defendant completed most of these side projects during the second week, and Mr. Dupuy wrote him another check on July 18, 2006, for $3,500.00. The materials for the siding job had still not been delivered to the job site at that time.
By approximately the third week after he had enlisted defendant's services, Mr. Dupuy began to notice that there was no further progress on the siding job. Moreover, most of the materials listed in the invoice still had not been delivered to the job site. On July 28, 2006, defendant represented to Mr. Dupuy that the materials would be delivered on the following Monday, and that the repairs would progress as promised. Defendant also stated that he would provide Mr. Dupuy with a detailed breakdown of costs for the side projects on Monday, as well. Mr. Dupuy issued a check for $3,600.00 to Hoda Construction on the same date.
Defendant never showed up to the job site on the following Monday. Similarly, most of the materials listed in the invoice were not delivered to the job site. Mr. Dupuy was unable to contact defendant after their July 28, 2006 meeting, so he eventually contacted the police. The Dupuys also later filed a civil suit against defendant and obtained a default judgment in January 2007 in the amount of $14,500.00. At the time of trial in August 2013, the Dupuys still had not received any money in connection with that lawsuit. Subsequent investigation revealed that defendant had never been registered or licensed as a contractor in Louisiana, or in any state that has reciprocal licensing with Louisiana.
JURISDICTIONAL ISSUE
At the outset, we note a jurisdictional issue. The appellate jurisdiction of this Court in criminal cases extends only to those cases triable by a jury. See La. Const. art. 5, § 10; La. Code Crim. P. art. 912.1. A misdemeanor is not triable by a jury unless the punishment that may be imposed exceeds six months' imprisonment. See La. Const. art. I, § 17; La. Code Crim. P. art. 779.
In the instant case, defendant was charged in a single bill of information with a felony on count one, and a misdemeanor on count two. Count one was triable (and actually tried) before a jury. Count two was only triable (and actually tried) before the trial judge. Defendant's instant appeal seeks review of his conviction and sentence on count one, and review of his sentence on count two. However, the proper procedure for seeking review of a misdemeanor conviction or sentence is an application for writ of review directed to this Court to exercise its supervisory jurisdiction.
We note the misjoinder of these offenses under La. Code Crim. P. art. 493, but defendant apparently did not raise this issue prior to trial, and he does not raise it on appeal. Therefore, we consider any issue with respect to the misjoinder of these offenses to be waived.
Rather than dismissing defendant's appeal with respect to count two, we find that the interests of justice are better served by reviewing count two pursuant to our supervisory jurisdiction. In this exceptional case, we find that the facts of the felony and misdemeanor convictions are intertwined to the point that the interests of justice are best served by considering the matters together. Accordingly, pursuant to our supervisory jurisdiction, we will consider the misdemeanor sentence on count two and review it under our supervisory jurisdiction. See State v. Trepagnier, 2007-0749 (La. App. 5th Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 2008-0784 (La. 10/24/08), 992 So.2d 1033.
ASSIGNMENT OF ERROR #1
In his first assignment of error, defendant alleges that the evidence presented at trial was insufficient to support his conviction for theft of goods valued over $500.00. He asserts that this case merely involves a contractual dispute about the value of the services he actually rendered to Mr. Dupuy. He further contends that he had no intent to take Mr. Dupuy's initial check and not to follow through with the work, and that he had no intent to permanently deprive Mr. Dupuy of his money.
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 or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006- 0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that in order to convict, the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. State v. Petito, 2012-1670 (La. App. 1st Cir. 4/26/13), 116 So.2d 761. 766-767. writ denied, 2013-1183 (La 11/22/13), 126 So.3d 477.
Theft is defined as the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. See La. R.S. 14:67(A). Specific criminal intent is 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. See La. R.S. 14:10(1). 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. Dudley, 2006-1087 (La. App. 1 Cir. 9/19/07), 984 So.2d 11, 24. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. The trier of fact is to determine the requisite intent in a criminal case. State v. Crawford, 619 So.2d 828, 831 (La. App. 1st Cir.), writ denied, 625 So.2d 1032 (La. 1993).
In the instant case, to support defendant's conviction under La. R.S. 14:67(B)(1) (prior to 2010 amendment), the state was required to prove that defendant committed theft of goods valued over $500.00.
The contractor's invoice presented to Mr. Dupuy by defendant listed the following items (and prices) as necessary to begin the project:
| (90) 1x4x8 P.T. Appearance Grade | $267.30 |
| (1) 12" Comp. Miter Saw | $292.54 |
| (1)12" Concrete Fiber Saw Blade | $83.46 |
| (4) Alex Plus Cont. Pack/(12) White JLQ Caulk | $81.00 |
| (37) 3/4x4x12 Rustic Primed Harditrim | $319.89 |
| (48) Liq. Nails Heavy Duty 29 oz. | $217.67 |
| (8) Valley HT GLV 4"x50' | $82.48 |
| (425) @ $7.26/ea. Hardie Board | $3,355.48 |
| Scaffolding (10) 7' Walk Board (12) 5'Section Kit | $611.43 |
| 1CI Corp. All in One Acrylic Primer/Finish (20 gal.) | $572.00 |
| Hatachi Hardie Board Nailer and Nails | $420.00 |
| Amount Needed to Start Job Total | $6,463.75 |
Mr. Dupuy issued Hoda Construction a check for this exact amount on June 26, 2006, the same day the invoice was presented to him. He also issued additional checks, totaling $12,050.00, to Hoda Construction on three occasions in July 2006.
The prices for the nailer and nails appear to be listed separately.
The prices for the nailer and nails appear to be listed separately.
At trial, Mr. Dupuy testified that the only materials from the invoice which were ever delivered to the job site were the 90 pieces of "1x4x8 P.T. Appearance Grade," valued at $267.30. He admitted that, in addition to the demolition work, defendant performed outstanding side work on his windows and doors that was not directly accounted for in their contract. However, Mr. Dupuy testified that defendant quoted him a price of approximately forty to fifty dollars per window and that defendant told him the work on the doors would not cost much. In addition, defendant had suggested hanging plywood to straighten the walls of his house for the siding to be installed. Mr. Dupuy testified that defendant started on that project, but he only completed about twenty-five percent of it.
Viewed in the light most favorable to the state, the evidence presented at defendant's trial established that Mr. Dupuy issued checks to defendant's company in the total amount of $18,513.75. In exchange, defendant performed demolition work on Mr. Dupuy's house, engaged in two minor side projects, completed just a small portion of plywood work in anticipation of the siding job, and delivered only a small fraction of the materials for which he had been paid. After receiving a $3,600.00 check from Mr. Dupuy on July 28, 2006, defendant never again contacted him. Similarly, defendant made no subsequent effort to provide the contracted-for materials or to repay any of the money he had received.
Defendant also failed to take any steps to pay the Dupuys in accordance with the civil lawsuit.
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Defendant did not testify or call any witnesses on his behalf at trial, but on appeal he argues that this case involves a mere contractual dispute about the value of services rendered. He also states that he did not take Mr. Dupuy's initial payment for the supplies with the intent not to follow through with the work. The jury obviously rejected these hypotheses of innocence, which were advanced at trial through defense counsel's cross-examination of the state's witnesses. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). 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).
In demanding and accepting funds from the victims for the repair of their home when those funds were not used entirely for that purpose, defendant took something of value that belonged to another, without consent, by means of fraudulent conduct, practices, and representations. While defendant may dispute the amount that was not used to reconstruct the victims' home, the evidence was ample for the jury to conclude that this amount was far in excess of $500.00. Further, despite defendant's argument to the contrary, a taking and the formation of the intent to permanently deprive need not coincide. See State v. Hayes, 2001-3193 (La. 1/28/03), 837 So.2d 1195, 1198 (per curiam). Here, the jury could have inferred defendant's intent to permanently deprive the victims of their money based upon the facts presented at trial, including defendant's failure to provide any substantial materials for the contracted-for job and his disappearance after receiving the July 28, 2006 check.
This assignment of error is without merit.
ASSIGNMENT OF ERROR #2
In his second assignment of error, defendant alleges that his sentences are unconstitutionally excessive. Defendant argues that the trial court erred in sentencing him to thirty months at hard labor on count one, instead of placing him on probation, because the circumstances of the case arose out of a contractual dispute and because the victim described the work that he did perform as exceptional. Although he does not explicitly argue that it is excessive, defendant also points out that he was given the maximum possible sentence on count two of three months in the parish jail.
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. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court's wide discretion to sentence within statutory limits. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La. Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La. App. 1st Cir. 1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La. 1982).
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. 14:67(B)(1) (prior to 2010 amendment). Whoever commits the crime of contracting without authority "shall be guilty of a misdemeanor and, upon conviction, shall be fined a sum not to exceed five hundred dollars per day of violation, or three months in prison, or both." See La. R.S. 37:2160(C) (prior to 2009 amendment). In the instant case, defendant was sentenced to thirty months at hard labor for his conviction on count one, and to a concurrent term of three months in the parish jail for his conviction on count two.
Prior to defendant's sentencing hearing, the trial judge ordered a presentence investigation (PSI) report. The trial judge noted specifically at the time of sentencing that he had considered the contents of that report. In stating his reasons for defendant's sentences under Article 894.1, the trial judge noted that he believed any lesser sentences would deprecate the seriousness of defendant's offenses. He specifically stated that he believed this instance of contractor fraud following an emergency - Hurricane Katrina - added to the seriousness of the offenses. In addition, he stated that the victims suffered a significant economic loss. Moreover, the trial court found that while defendant had the chance to mitigate the seriousness of his offenses by compensating the victims, he had not done so despite ample opportunity. The trial judge did note in mitigation that defendant's only prior criminal history involved a misdemeanor which was approximately thirty years old, and another offense in Jefferson Parish in 1986 for which defendant failed to appear.
While we note that, as a general rule, maximum sentences are reserved for the worst classes of offenders and offenses, we find that the impact of defendant's maximum sentence on count two is significantly blunted by both its short term and the fact that it was ordered to run concurrently with his sentence on count one. See State v. James, 2002-2079 (La. App. 1st Cir. 5/9/03), 849 So.2d 574, 586; see also State v. Preston, 498 So.2d 79, 81 (La. App. 5th Cir. 1986) (finding a lessened impact of two different-length maximum sentences imposed concurrently). Moreover, the trial judge's comments about the seriousness of defendant's conduct support a finding that the trial judge might have considered the circumstances of defendant's conviction for contracting without authority to have been of the most serious class of that offense.
Considering the trial judge's reasons for sentencing and the record as a whole, we cannot say that the trial court erred or abused its discretion in imposing the instant sentences on defendant.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED ON COUNT ONE AND COUNT TWO.