Opinion
NO. 2012 KA 0234
09-21-2012
STATE OF LOUISIANA v. JAMES W. MARTIN
Walter P. Reed District Attorney Covington, LA Attorneys for Appellee, State of Louisiana Kathryn W. Landry Special Appeals Counsel Baton Rouge, LA Frank Sloan Louisiana Appellate Project Mandeville, LA Attorney for Defendant-Appellant, James W. Martin
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 478933
Honorable William J. Knight, Judge Presiding
Walter P. Reed
District Attorney
Covington, LA
Attorneys for Appellee,
State of Louisiana
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, LA
Frank Sloan
Louisiana Appellate Project
Mandeville, LA
Attorney for Defendant-Appellant,
James W. Martin
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM, J.
The defendant, James W. Martin, was charged by felony bill of information with one count of theft of property valued between $300 and $500, a violation of La. R.S. 14:67. The defendant pled not guilty and, following a jury trial, was found guilty as charged. He filed motions for a new trial and postverdict judgment of acquittal, which were both denied. The trial court then sentenced the defendant to two years at hard labor. Thereafter, the State filed a multiple offender bill of information. The defendant moved to reconsider the sentence and to quash the multiple offender bill, and entered a plea of not true to the multiple offender bill. The trial court denied the motions to reconsider sentence and to quash and, following a hearing on the multiple offender bill, found the defendant to be a fourth-felony habitual offender. The trial court vacated the previously imposed sentence and resentenced the defendant to twenty-one years at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction, habitual offender adjudication, and sentence.
See La. R.S. 14:67(B)(2), prior to its 2010 amendment.
FACTS
The victims in this case, Shawnn Lynch and Linda Cortez, were the owners of L&S Property Ventures (L&S), a business that acquired real estate properties, fixed them up, and resold them. Lynch hired the defendant, who did construction work, to do some siding work on a residential property that Lynch had recently renovated, located on the Westbank of New Orleans. There was no written agreement. Lynch and Cortez testified at trial that the defendant was given $640 to purchase materials for the siding job. The defendant purchased only some of the necessary materials, spending a total of $259.26. The following day, Lynch visited the jobsite and noticed that very little work had been done, and not all of the materials were on site. The defendant told Lynch that he had purchased all of the materials needed for the siding job, but could not fit everything into his truck, and that Lynch could pick up the remaining materials from the store. However, when Lynch went to retrieve those materials, he learned that the defendant had not bought them. Lynch and Cortez contacted the defendant and asked him to return the remainder of the money, $380, but the defendant never did.
In addition to the evidence supporting the instant theft conviction, the State introduced evidence of other similar crimes to which the defendant pled guilty and which established a pattern of conduct, pursuant to La. Code Evid. art. 404(B). One homeowner testified that he paid the defendant $30,000 to act as a general contractor for a substantial amount of work on his house, but that he did not complete the work and never returned the money. Another homeowner testified that she paid the defendant $6,000 to do construction work on her house, but he did not do the work and never returned her money.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues that the evidence presented at trial was insufficient to support the jury's verdict. Specifically, the defendant argues that the State failed to prove whether the money was given by cash or check, the actual amount of money given, and how much of that amount was owed for work he had already performed. He also argues that there is no evidence that he took anything or misappropriated the money that he was given. The defendant contends that his conviction should be reversed and his multiple offender adjudication vacated, or, in the alternative, that his conviction ought to be reduced to a misdemeanor, his multiple offender adjudication vacated, and the matter remanded to the trial court for sentencing on misdemeanor theft.
The standard of review for the sufficiency of 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 conclude that the State proved the essential elements of the crime and the defendant's identity beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821; State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331, This standard of review, in particular the requirement that the evidence be viewed in the light most favorable to the prosecution, obliges the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. See State v. Mussall, 523 So.2d 1305, 1308-11 (La. 1988). The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Davis, 2000-2685 (La. App. 1st Cir. 11/9/01), 818 So.2d 76, 79. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
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. La. R.S. 14:67(A).
In this case, Lynch testified that on Thursday, July 2, 2009, he gave the defendant $640 to purchase the materials needed for a siding job Lynch hired him to do. The defendant had just finished another job for him the day before. After purchasing the materials, the defendant was to give Lynch the receipts and whatever money was left over. Lynch, who was one of the State's main witnesses, was asked at trial about his extensive criminal record, which included convictions for simple criminal damage to property, simple battery, fleeing from law enforcement, and convictions for DUI. At the time of trial, Lynch was in a work-release program and his business, L&S, was no longer in good standing.
Lynch was certain that the defendant was paid on July 2, 2009, via check, though he could not recall if he or Cortez wrote the check. They both had L&S checkbooks, but he thought he might have written it since he usually carried a small checkbook in his truck. However, he also said that Cortez usually wrote the checks for L&S and that he rarely wrote checks. Lynch speculated that the check could be produced, and he believed that he had some record to show that the defendant was paid for the siding job, but he was never asked for that information. Further, his belief that the defendant was paid by check was simply premised on the fact that he never carried cash with him. Cortez then testified that Lynch would have been the one who made the work agreement with the defendant and that he would have been the one to pay him. She was certain that she never gave the defendant any money, either by cash or check. She also testified that Lynch did in fact carry cash with him and would sometimes pay cash for minor labor.
Lynch also recalled that the defendant was paid $640, which he estimated to be the total cost of the materials required for the siding job. On cross-examination, however, Lynch said that the check amount was probably for more than the cost of materials because in the same day, he also paid the defendant for work he had just done. In addition, he did not know how much the defendant was owed for the labor he did do on the siding job. On redirect, Lynch clarified that he gave the defendant $640, deducted the amount the defendant spent on materials, and then asked for $380 back. No L&S accounting or business records were introduced at trial.
Later on July 2, after receiving the money, the defendant went to Danken Building Materials (Danken), a wholesale distributor of specialized building products, and purchased some of the materials for the siding job. Kent Lopez, the owner of Danken, testified and brought several receipts with him. One of the receipts, dated July 2, 2009, showed a purchase of $259.26, paid in cash, sold to J&M Construction. The purchase was for 22 pieces of siding, 11 pieces of J-Channel, 4 outside corners, and trim nails, all in the color adobe cream. Lopez said sometimes customers pay for a big order and take only some of their purchase with them, but that such an arrangement would be documented, and that that was not the case with this purchase.
We note that the name of Lynch's company is L&S Property Ventures, but the company on the receipt is J&M Construction. The record does not explain this discrepancy, and it does not appear to be a matter of dispute that the materials purchased on that receipt were for the siding job that Lynch hired the defendant to do.
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The following day, Friday, July 3, 2009, Lynch stopped by the jobsite and observed that the defendant had done very little work and that not all of the necessary materials were there. He called the defendant, who was not at the site, to ask him why some materials were missing. The defendant explained that he had already purchased the materials, but was unable to fit everything into his truck. Since the defendant had already left to go camping for the July 4th holiday weekend, Lynch decided to finish the job himself and asked the defendant to leave the Danken receipt at a nearby Starbucks for him to pick up later. The defendant never left the receipt, and when Lynch went to Danken, the store was closed for the holiday.
On Monday, July 6, Lynch went back to Danken and then learned that, contrary to what the defendant had told him, the remaining materials were never purchased. Lynch was given a copy of the receipt for the July 2 purchase, so he was aware of what the defendant had bought and how much money he spent. He purchased the remaining materials and then called the defendant to inquire about the situation. At the time, Lynch was driving from the Northshore of Lake Pontchartrain, where L&S had its office, to the Westbank to another construction job. Lynch testified that the defendant kept "bantering" with him and, since he was driving and Cortez was on the Northshore, he told the defendant to call Cortez. Lynch also called Cortez to keep her apprised of what was going on, and he instructed her to call the police if the defendant did not pay back the remainder of the money by a certain time that day.
Cortez testified that she and the defendant spoke on the phone a few times regarding the instant matter. The first time was when the siding materials were not at the jobsite, and she called to find out about it. The defendant told her that the materials were paid for and Lynch could just go pick them up. Cortez said that Lynch went to get the materials on Friday, July 3, but Danken was closed for the holiday. She called the defendant again and said that he needed to bring her the receipts, which he never did. She and the defendant had a final conversation on Monday, July 6, when she told him that he needed to bring the remainder of the money to her by a certain time that day and if he did not, she would have to file a police report. Cortez said the defendant admitted to her that he owed the money and told her he would bring it, but he never did. She also testified that her "understanding" was that "later" there was some "difference" between the defendant and Lynch in what was owed.
When the defendant did not return the money as requested, Cortez contacted the police. At that time, she gave a statement setting forth that the defendant was given $640 cash to purchase certain materials at Danken, but he did not purchase everything, and then lied about the materials being paid for. In her statement, Cortez also said that the defendant was told to bring $380 to L&S by noon or the authorities would be contacted, and since he did not do that, she filed a report. The defendant was arrested on July 8, 2009.
In addition to Lynch's and Cortez's testimony about the instant case, the State presented testimony from two other witnesses that the defendant took money from them under similar circumstances. First, Doyle Spell, Jr., testified that he and his wife hired the defendant in 2006 to do repair work on their house following Hurricane Katrina. He said the defendant was to be a general contractor for a relatively large amount of work, and that he gave the defendant two checks for $15,000 each. However, very little work was done on the house, and when Spell expressed his concerns, the defendant admitted to him that he did not have the money and could not buy any supplies or pay his workers. Spell summoned the police, the defendant confessed, and he was arrested. He later pled guilty to theft of the Spells' money. Spell and his wife were awarded $27,500 in restitution, but never received any of that money.
Mary Jones testified that in September 2005, she and her husband hired the defendant to do some construction work on their house. She gave the defendant two deposits, one check for $2,500 and another for $3,500. However, the defendant did not do any work, and her attempts to contact him were unsuccessful. One day she saw him out in Mandeville and confronted him about the money. She said that the defendant apologized and told her that he would return her money. He never did. The defendant later pled guilty to committing theft against her and was ordered to pay restitution. Like the Spells, she never received any money from him.
The defendant did not testify at trial or present any witnesses on his behalf. Through cross-examination and closing arguments, the defendant presented his case that the State failed to prove the method of payment, how much the defendant was paid, and whether some of that payment was for work already completed.
As for the State's alleged failure to prove whether the defendant was paid by cash or check, we note that the method of payment was not an element of theft that the State needed to prove in this case. The State was only required to prove that the defendant took or misappropriated "anything of value which belongs to another, either without the consent of the other ... or by means of fraudulent conduct, practices, or representations." La. R. S. 14:67(A). The testimony of Lynch and Cortez was unequivocal, and uncontested, that the defendant was given money on July 2, 2009, in order to purchase siding materials. Cortez was adamant that she did not pay the defendant, and Lynch believed he paid via check. However, whether the defendant was paid with a check or cash is irrelevant to the question of whether or not he was paid, which was not in dispute.
Regarding the defendant's contention that the State failed to prove the actual amount of money he was given, a careful review of the record confirms that the jury could have rationally found that amount to be $640. Lynch and Cortez both testified that the defendant was given $640 on July 2, which Lynch had calculated to be the cost of the materials required for the siding job. In addition, $640 is the amount that formed the basis for Lynch's charge on July 6 that the defendant needed to return $380 to L&S ($640 minus the $259.26 payment for materials). We note that the statement Cortez gave to the police, which was made at the time of the dispute, was that the defendant received $640. Cortez originally wrote $600, but scratched it out and wrote $640 because, as she testified, Lynch corrected her. In that statement, Cortez also stated that the defendant was told to return $380.
The defendant further contends that the State did not prove how much money he was owed for work he had already performed on the siding job, as well as a separate job he had completed for Lynch the day before. He points out that on cross-examination, Lynch admitted that he owed the defendant for labor that he had performed on the siding job, but he was not sure of the amount. In addition, Lynch said that the check he gave to the defendant on July 2 would "probably" have been for more than the cost of the materials because "in the same day I paid him for the work that he had just done." Finally, Cortez testified that while the defendant admitted to her that he owed the money, her "understanding" was that the defendant and Lynch had some "difference in that." The gravamen of the defendant's argument is that even assuming that he kept some of the $640, the evidence was insufficient to prove beyond a reasonable doubt that the amount he misappropriated exceeded $300. However, this issue, as with most issues presented to a jury, involved credibility and judgment. Through defense counsel's cross-examination and arguments, the jury was presented with the theory that some portion of the $640 constituted money owed to the defendant for previous work. However, the jury also heard testimony that the defendant lied about purchasing all the materials and then admitted to Cortez that he owed the money she asked him for. It was the fact-finder's role to evaluate the defendant's theory of innocence and decide whether it was exculpatory. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Thomas, 589 So.2d 555, 570 (La. App. 1st Cir. 1991).
The defendant also argues that there is no evidence that he took or misappropriated anything from anyone because in fact he was given the money and the State's theory is that he failed to spend it on materials. He contends that there was no evidence that he made any misrepresentations or engaged in fraud. He also asserts that for the State to prove misappropriation, the evidence had to show that he used the money for his own use or some other unauthorized purpose.
Louisiana Revised Statutes 14:67(A) defines theft broadly, and the Louisiana Supreme Court has held that that statute combines the common law crime of larceny with the offense of embezzlement. State v. Hayes, 2001-3193 (La. 1/28/03), 837 So.2d 1195, 1197 (per curiam). The supreme court explained that the crime of embezzlement is a fraudulent and felonious appropriation of another's property by the person to whom it has been entrusted or into whose hands it has lawfully come. The gist of the offense is a breach of trust. The essence of the offense is the conversion of the property. Id. In Hayes, the defendant, by virtue of his employment relationship, took possession of materials and $15,000 cash that belonged to his employer. The supreme court found that the crime of theft charged against that defendant was in the nature of an embezzlement offense, as the defendant feloniously converted those things of value to his own use with the intent to deprive his employer of them permanently. Id., 837 So.2d at 1197-98. In the offense of embezzlement, the felonious conversion or misappropriation takes place after the lawful receipt of the goods or property by the accused in the course of a fiduciary relationship with the victim that he then breaches in the act of conversion. Id., 837 So.2d at 1198. In the instant case, the testimony of Lynch and Cortez was that the defendant was in lawful possession of the $640, whether by cash or check, as he was given that money in order to purchase siding materials. Thus, the fact that Lynch gave the money to the defendant does not preclude a finding of theft, nor does the fact that there was no evidence of misrepresentation or fraud, because subsequent conversion of property that was lawfully obtained is the essence of the crime of embezzlement which is incorporated into the theft statute.
Further, the State is not required to prove what the defendant did with the remainder of the money, or whether he used it for his own purpose or some other unauthorized purpose. The State is required to show that the defendant intended to deprive the other permanently of whatever may be the subject of the misappropriation or taking. 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. La. R.S. 14:10(1). It is a legal conclusion to be resolved ultimately by the trier of fact. Since specific intent is a state of mind, it need not be proven as a fact, but it may be inferred from the circumstances present and action of the defendant. State v. Godbolt, 2006-0609 (La. App. 1st Cir. 11/3/06), 950 So.2d 727, 730. In the instant case, the testimony clearly established that the defendant was given $640, spent $259.26, falsely told Lynch and Cortez that all the materials were paid for, and never returned the remaining $380. Obviously, the jury determined that the fact that the defendant never returned the money, as requested, was proof of his specific intent to permanently deprive Lynch and Cortez of that money. Further, Spell's and Jones's testimony that the defendant had stolen money from them under similar circumstances was further evidence for the trier of fact to consider regarding whether the defendant specifically intended to permanently deprive Lynch and Cortez of $380.
We also note Cortez's testimony that, during the July 6 phone call, the defendant admitted to her that he owed the money and would return it, but never did, despite her threat that she would call the police. The defendant argues that it is well-settled that an accused cannot be convicted on his own uncorroborated confession without proof that a crime has been committed by someone. See State v. Willie, 410 So.2d 1019, 1029 (La. 1982), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 723 (1984). However, in the instant case, evidence was introduced to prove that a theft occurred. Thus, the defendant's admission to Cortez that he owed the money was not an uncorroborated confession, but was only another piece of evidence for the trier of fact to consider.
As the trier of fact, a jury is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). "Because a determination of the weight of the evidence is a question of fact, this court has no appellate jurisdiction to review it in appeals of criminal cases." State v. Gordon, 2001-0236 (La. App. 1st Cir. 2/15/02), 809 So.2d 549, 552, writ denied, 2004-2438 (La. 6/24/05), 904 So.2d 733. On appeal, this Court will not assess the credibility of witnesses or reweigh the evidence to overturn a jury's determination of guilt. See State v. Hendon, 94-0516 (La. App. 1st Cir. 4/7/95), 654 So.2d 447, 450. The determination of what weight to give the evidence rests solely on the discretion of the trier of fact. See State v. Burge, 515 So.2d 494, 505 (La. App. 1st Cir. 1987), writ denied, 532 So.2d 112 (La. 1988). The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. Further, 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. State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the trier of fact's verdict does not render the evidence accepted by the trier of fact insufficient. See State v. Azema, 633 So.2d 723, 727 (La. App. 1st Cir. 1993), writ denied, 94-0141 (La. 4/29/94), 637 So.2d 460.
In the instant case, the victims testified that the defendant was given $640 to purchase materials, he purchased only $259.26 of materials, he falsely told them that all of the materials were paid for and ready to be picked up, and when the defendant was told he needed to return the remaining $380, he never did. The defendant, through cross-examination and closing arguments, presented his hypothesis of innocence to the jury, by raising doubts about the amount of money that was received on July 2 and how much the defendant was owed for previous work. However, the guilty verdict returned by the jury indicates that it accepted the State's evidence and rejected the defendant's theory of innocence. See State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 453. We cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the jury and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Accordingly, after a careful review of the record, we are convinced, viewing the evidence in the light most favorable to the prosecution, that a rational trier of fact could have concluded that the State proved beyond a reasonable doubt that the defendant was guilty of theft. Therefore, the evidence being sufficient to support the jury's verdict, the trial court correctly denied the defendant's motion for postverdict judgment of acquittal. The defendant's assignment of error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.