In re State T.H.
| Decision Date | 04 June 2014 |
| Docket Number | No. 14–179.,14–179. |
| Citation | 140 So.3d 911 |
| Parties | STATE in the Interest of T.H. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Michelle Breaux, Assistant District Attorney, Michael Harson, District Attorney, Lafayette, LA, for The State of Louisiana.
Jane Hogan, Lafayette, LA, for Defendant–Appellant, T.H.
Court composed of SYLVIA R. COOKS, MARC T. AMY, and J. DAVID PAINTER, Judges.
The sixteen-year-old Defendant, T.H., was adjudicated guilty of theft, a violation of La.R.S. 14:67, and sentenced to six months with the Office of Juvenile Justice, suspended, placed on six months of active probation, and ordered to complete forty hours of community service. T.H. now appeals, alleging that the evidence is sufficient to support the conviction. For the following reasons, we affirm the adjudication but vacate the disposition and remand the matter for resentencing with instructions to the trial court to order credit for time spent in secure detention, if any, prior to the imposition of disposition, as required by La.Ch.Code art. 898(A), to inform T.H. of the two-year prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8, and to order the probation order to correctly reflect the adjudication hearing.
Detective Tracy Gerard, who was employed by the Lafayette Parish Sheriff's Office, also worked as a security guard at Wal–Mart located on 1229 Northwest Evangeline Thruway. Detective Gerard recalled working at Wal–Mart on May 22, 2013. He was with Rachelle Hebert, Asset Protection Manager for Wal–Mart, in the security office. While watching closed circuit television of the store from the security office, Ms. Hebert pointed out to Detective Gerard two individuals in the shoe aisle.1 The detective described what he saw while watching the closed circuit television, stating in pertinent part:
A [A]nd I witnessed the defendant and a black female together, and the black female was pushing a basket that had several items in the basket. There looked to be some type of either knapsack or purse on the top portion of the basket, and it appeared to be open. He was—he had something in his hands and—
Q [by the STATE] Who's “he”? Is “he” the defendant?
A I'm sorry. The defendant. The defendant had something in his hands, and he kept playing with it, and it looked like he was wrapping something around it. I couldn't tell at the time. And he handed the item to the female, and he turned his back to the female and looked down the aisle, as though he was looking to make sure—
....
Q Okay. What happened next?
A The black female then took that item and placed it into the—
Q Took what item?
A The item that he handed her and turned around and placed it into the bag that was on top of the basket. She then proceeded to take other items that were in the basket and also placed them into the bag.
Q Do you know what those other items were?
A It was several different items that I've listed in the report that we confiscated later.
Q And those items were already in the basket?
A Yes.
....
Q Could you tell the Court, then, what other items were in the basket that were handed to Ms. Charles?
A There was the beach pants that were there, and there was a—they use their code, so it's kind of difficult to explain. And then men's swim trunks, some Superman T's, some woven shorts, some boys' T's, some rash guard, there was two (2) packs of that, some woven shorts, another pack, some jersey tank tops, another pair of shorts, and a jersey tank, and the total was like seventy dollars and seventeen cents ($70.17).
Q Let me ask you, do you know how those items got into the basket? Were you—
A No.
Q —able to view that on closed circuit?
A When she drew my attention to them, there was items [sic] in the basket.
Q When you're saying “she”—
A Rachelle, the loss prevention. When she said, “Look, they look suspicious,” that's when I started. And I see the two (2) individuals next to the basket, and there's items [sic] already in the basket.
Q Okay. And were you able to identify what item the defendant handed to the person pushing the basket?
A The only item we removed that had anything wrapped around it was the men's swim trunks, and what was wrapped around it was the drawstring.
Q Okay. And in viewing the closed circuit, where did [T.H.] retrieve this item?
A When I first noticed him, he had it in his hands.
....
Q All right. Did you monitor [T.H.] and the young lady, once you saw this on closed circuit TV?
A (No response.)
Q From the time you saw him give the item to the young lady until the time they exited the store?
A Once they started moving, we lost them off of that particular camera.
Q Okay.
A And then—I don't remember if Rachelle followed them from that point. I went to the door to wait for them to come to the exit point.
Q Okay. Was there any explanation given as to the items in the purse?
A Not that I recall.
Q All right. Did you, at any point, speak with [T.H.]?
A As he exited the store, I told him he was under arrest for shoplifting.
Q Did he have any explanation?
A Not that I recall.
Q All right. And [T.H.], the person that you identified, is the same person that you saw on the closed circuit TV?
A Yes.
....
Q [by the Defendant's Attorney] Officer, earlier you testified that on the last—once [T.H.] handed the shorts, or the trunks, to Ms. Charles, that the camera lost footage, or they were not able to see at that point. Isn't it correct that, at that point, [T.H.] went in one direction and Ms. Charles went in another direction?
A When he handed them to her?
Q Yes. When he handed her his shorts, he went in another direction. Could you see that from the video?
A Yeah, they were still in frame, they were still on the aisle. He just turned and looked, as though—I mean, I've been doing it for twenty-four (24) years—
Q I know, but you can't say what is in someone's mind.
Q So did he go in another direction, or did he not?
A No, he stayed right there. She put the items in the purse.
Q So your testimony is, he stayed with her the entire time?
A (Nods head indicating an affirmative response.)
Q And—
A He wasn't looking at her, no. He was looking in the opposite direction from where she was, but he was standing next to her.
....
Q [by the State] [A]t the time the items was [sic] placed in the purse, where was [T.H.]?
A He was there, but his back was to her.
....
A [W]hen I noticed him playing with the cord or whatever, she was kind of looking at some stuff on the side. She stands back up, he hands her the object, he turns towards the camera, she goes into the top portion of the basket and places it into the bag.
Detective Gerard testified that Ms. Charles and T.H. moved away from the camera that he was watching. Detective Gerard then went to the door to wait for the two to exit. Detective Gerard testified as follows regarding the stop of T.H. and Ms. Charles:
Q Okay. All right. Where was the stop made of [T.H.] and the other lady?
A As they exited the store.
Q Okay. Did they have to pass registers?
A Yes.
Q Did they pay for the items?
A No.
Q Okay. And when they were stopped, where were the items found?
A They were found in her purse.
The detective explained that T.H. did not exit the store at the same time as Ms. Charles. Ms. Charles exited first, and Detective Gerard stopped her at that time. He described T.H. as “he kind of hung back.” Detective Gerard testified that T.H. did not walk out of the store with anything or conceal anything in his pocket, pants, coat, or anywhere.
Ms. Hebert was with Detective Gerard in the security office watching T.H. and Ms. Charles via closed circuit television. Ms. Hebert testified regarding Ms. Charles stating in pertinent part:
A I know it was supposed to have been a relative. I do not—I know it wasn't the mother. The mother did not come until later, when we called. But the female was younger than [T.H.], and then, like I said, there was a, if I had to guess, maybe a five (5) or six (6) year old that was with them as well.
Ms. Hebert recalled that Ms. Charles had merchandise in the bottom of her basket which she was gathering and pushing to the back of her basket. T.H. was holding merchandise in his hand, and he was balling it up and wrapping a drawstring around the merchandise. Ms. Hebert testified that: “She [Ms. Charles] started concealing merchandise from the basket into the purse, and he handed merchandise to her and she concealed it into her purse.” The pertinent exchanges occurred regarding the concealment:
Q [The State] [W]hile watching the security camera, was this gentleman in a position to see the young lady placing the items in her purse?
A [Ms. Hebert] Yes, he was.
Q Did he make an effort to stop the concealment?
A No, he did not.
....
Q [T.H.], what was he doing when the young lady put it in her purse?
Q When you say “looking around,” I'm assuming the young lady is pushing the basket?
A Yes, she is.
Q What is T.H.—where is he in relation to the young lady pushing the basket?
A He's on the side of her.
Q Can you describe what he's doing? Is he watching her? Is he shopping elsewhere? Can you describe what he is doing?
A He's on the side of her. They are pushing the basket on the back aisle of shoes, and he's watching her with the merchandise and then as well as looking down aisles as they pass the aisles.
....
Q [The Defendant's Attorney] And he was looking at her?
A During the concealment?
Q Uh-huh.
A Yes.
Q So if the officer said that he was not—that he was looking in the other direction, that would not be correct?
A Correct. I mean, whenever she was concealing, he was watching her conceal, and then he also whenever—like I stated, whenever she was concealing, when they continued to walk—Because when they were concealing, they were stopped. Whenever the...
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