Opinion
No. 2009 KA 0007.
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 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.
Mary E. Roper, Baton Rouge, La., Counsel for Defendant/Appellant Rashad Charles Poche.
BEFORE: CARTER, C.J., GUIDRY AND PETTIGREW, JJ.
The defendant, Rashard Charles Poche, 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. A jury found him guilty as charged under both bills of information.
Co-defendants, Jandrell Brown 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. Brown, 2009-0008 (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 App. 1 Cir. 9/11/09) (unpublished); State v. Brown, 2009-0010 (La. App. 1 Cir. 9/11/09) (unpublished).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, the defendant was sentenced to five years at hard labor, to run concurrently with the sentence imposed on bill of information no. 21509.
The defendant appeals, contending in his sole assignment of error that the evidence was legally insufficient to convict him of attempted theft of a television where neither he, nor his companions, tried to leave the store without paying for the television. For the following reasons, we affirm the conviction and sentence on bill of information no. 21509, affirm the conviction on bill of information no. 21510, amend the sentence on bill of information no. 21510, and affirm the amended sentence on bill of information no. 21510.
FACTS
On March 17, 2007, Jonathan Whitehurst, asset protection coordinator for the Walmart in Prairieville, saw a man walking through the electronicsdepartment of the store and placing two plasma televisions into a shopping cart. The televisions were priced at $748 and $378. The man bypassed the registers, ran past the door greeter, and 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 then 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 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 had 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 theelectronics department where Whitehurst first observed him. Before the women 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 were 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 that the co-defendants and her own girlfriend — Hebert — had been together at the Walmart in Prairieville. She claimed that Jamilyn and Jandrell 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 him. 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 girlfriend had been the actual shoplifter. LaCoste acknowledged that she was on parole for three counts of armed robbery, but claimed that shehad 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. He did not provide any identification but indicated he was from Killona, Louisiana.
Jandrell 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. Jandrell 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 his sole assignment of error, the defendant argues his conviction under bill of information no. 21510 was unsupported by the evidence because merely riding to the Gonzales Walmart, entering the store, and speaking to two women who put a television in a shopping cart was insufficient evidence of attempted theft. He does not challenge his conviction under bill of information no. 21509.
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 theessential 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's mere 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.
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).
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing 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).
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.
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 he intended to deprive the other permanently of the thing of value. Specificcriminal 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 that the defendant had the requisite specific intent to commit a theft from the Walmart in Gonzales. The defendant urges this court to view his actions at the Walmart in Gonzales in isolation from his actions at the Walmart in the Prairieville. The defendant's actions at the Walmart in Gonzales, however, did not occur in a vacuum, but rather in the context of his actions at the Walmart in Prairieville. The State argued to the jury that after the defendants were forced to leave the Walmart in Prairieville without 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 the car and proceeded into the Walmart in Gonzales. Inside the store, the defendants went directly to the area where the televisions were located. Jandrell and Jamilyn Brown 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 aftercommunicating with each other in both stores. Further, after Jandrell and Jamilyn Brown loaded the items taken from the Walmart in Prairieville into their car, they opened the trunk as Poche exited the store with stolen televisions. The defendant does not dispute that he committed theft of two televisions from the Walmart in Prairieville, but was forced to leave without the televisions due to the efforts of Whitehurst to apprehend him. These circumstances support the jury's determination that the defendant specifically intended to commit theft of a television from the Walmart in Gonzales.
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.
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 to do, an act "for the purpose of and tending directly toward the accomplishing of his 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 defined generally as the devisingor 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 that are an act for the purpose of and tending directly toward the accomplishing of an object may be understood to exist on a continuum. See 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 which is an attempt, the totality of the facts and circumstances presented by each case must be evaluated. Ordodi, 946 So.2d at 662. 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 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 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 andactions for the purpose of and tending directly toward the accomplishing of his object, the jury found that the defendant had committed actions sufficient 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 his goal. The State's theory at trial was that the 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 defendants 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 was unaware of any plan to steal the television from the Gonzales 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 isguilty unless there is another hypothesis which raises a reasonable doubt. 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.
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to La. Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. Code Crim. P. art. 920(2).
On bill of information no. 21510, the defendant was sentenced to five years at hard labor, to run concurrently with the sentence imposed on bill of information no. 21509. Thus, the court imposed one-half of the maximum sentence provided by La.R.S. 14:67B(1), in accordance with the general scheme of La.R.S. 14:27D(3). However, La.R.S. 14:27D(2) in pertinent part provides, "[i]f the offense so attempted is theft, and is punishable as a felony, he shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both." This court may, however, correct the illegal sentence by amendment on appeal rather than by remand for resentencing, because the trial court attempted to impose the maximum legal sentence in this matter, and thus, no exercise of sentencing discretion is involved. See La. Code Crim. P. art. 882A; 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. Accordingly, the sentence imposed under bill of information no. 21510 isamended to one year at hard labor to run concurrently with the sentence imposed under bill of information no. 21509.