State v. Anderson

• Decision Date: 06 February 2008
• Docket Number: No. 07-KA-752.,07-KA-752.
• Citation: 979 So.2d 566
• Parties: STATE of Louisiana v. Wray M. ANDERSON.
• Court: Court of Appeal of Louisiana — District of US

979 So.2d 566

STATE of Louisiana v. Wray M. ANDERSON.

No. 07-KA-752.

Court of Appeal of Louisiana, Fifth Circuit.

February 6, 2008.

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Joseph E. Roberts, Martin A. Belanger, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Provino C. Mosca, Attorney at Law, Harahan, Louisiana, for Defendant/Appellant.

Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.

On April 25, 2006, the Jefferson Parish District Attorney filed a bill of information charging defendant, Wray M. Anderson, with theft of U.S. currency valued at over $1000 from the Succession of Austin Anderson, in violation of R.S. 14:67. Defendant entered a plea of not guilty on May 22, 2006. Trial was held on May 15, 2007, and the jury returned a responsive verdict of guilty of unauthorized use of movables in excess of $1,000.¹ On June 22, 2007, the trial court sentenced defendant to three years at hard labor, with credit for time served. The sentence was suspended and defendant was placed on active probation for three years. On July 20, 2007, the trial court ordered defendant to pay $168,830.02 in restitution. Defendant filed a Motion for Appeal, which was granted.

FACTS

Defendant is the son of Austin Anderson, Sr. ("Austin Sr.") and Lucille Anderson. He has one brother, Austin Anderson, Jr. ("Austin Jr."), and one sister. On May 14, 1996, defendant's mother, Lucille, died intestate. Defendant's father, who was an attorney, became the administrator of her estate. According to Austin Jr., Austin Sr. indicated that Lucille's succession would not be opened until after Austin Sr.'s death. Austin Sr. died on December 29, 2001, leaving an olographic will dated December 26, 2001. In his will, Austin Sr. expressly revoked all prior testaments and named defendant as executor with full seizin and without bond. He left particular legacies of $1000 to defendant's sister and $3000 to each of defendant's sister's children. Defendant was named as the residual legatee.

At trial, Austin Jr. testified that shortly before his father's death, he discovered that his father had opened his mother's succession. Austin Jr. asserted that his father, Austin Sr., mishandled his mother's succession and defrauded him of at least $120,000 in his mother's succession by failing to list any of her separate property on the descriptive list and listing some of her separate property as community property. Austin Jr. filed a proof of claim in excess of $120,000 in his father's succession, thereby becoming a creditor in Austin Sr.'s succession. Austin Jr. explained that when there is a creditor in a succession, the creditor is paid prior to any legatees being paid. Austin Jr. further indicated that his cousin, Alfred Nippert, filed a $100,000 proof of claim and a $600,000 proof of claim, "which made a[sic] combined claims in excess of eight hundred thousand dollars against the succession of my father." Austin Jr. stated that the value of his father's estate was $540,811 on February 21, 2002. Accordingly, the value of Austin Sr.'s estate was less than the amount being sought by Austin Sr.'s creditors.

Austin Jr. further testified that in June 2002, the court issued an order in his father's succession proceeding that no debts were to be paid and no assets were to be sold unless defendant obtained creditor and court approval. However, he stated that he learned during defendant's deposition in the succession proceeding that defendant had disposed of assets of the estate without authority of the creditors or the court, and that defendant had written checks and made transfers to himself from Austin Sr.'s succession in excess of $100,000. The State introduced into evidence an annual accounting of Austin Sr.'s succession which confirmed that defendant wrote numerous checks to himself from succession funds. Defendant was subsequently removed as the executor of Austin Sr.'s succession.

The State entered into evidence 16 checks written by defendant to himself, drawn on the account of his father's succession, dating from June 2002 through December 2002. The checks in aggregate amount to approximately $106,000 and range from $1,000 to $30,000 each. The State further entered into evidence records of 13 online transfers from the succession account to the account of defendant, dating from June 2002 through January 2003. These transfers in aggregate amount to approximately $52,600. Dawn Farrell, the auditor and custodian of bank records for Metairie Bank and Trust where the succession account was located, testified to the authenticity of these records. Ms. Farrell testified that she had no knowledge of wrongdoing with regard to the checks and that defendant was the only person with authority to sign checks under the bank account agreement. Farrell further stated that the online transfers could only be accomplished with defendant's user I.D. and password. Austin Jr. testified that he, as a creditor of the succession, did not authorize these transactions.

The State also entered into evidence defendant's February 2004 "Response to Motion for Contempt and Confession of Judgment" in the succession proceeding, wherein defendant stated:

Your petitioner admits that he appropriated some $161,600 of funds, primarily from Metairie Bank and Trust, from the Succession of Austin Anderson, without court approval and prior to the proof of and payment of legitimate claims against the Succession of Austin Anderson.

Austin Jr. identified the signature on this document as defendant's signature. The State also entered into evidence a descriptive list of the assets of the Succession of Austin Sr., an order removing defendant as executor of the succession, as well as a civil judgment obtained by the succession against defendant and an order assigning the succession's judgment to Austin Jr.

DISCUSSION

On appeal, defendant asserts the following two assignments of error:

1) The jury verdict was contrary to law and evidence.

2) The evidence was insufficient to convict defendant of any crime.

In State v. Hearold, 603 So.2d 731, 734 (La.1992), the Louisiana Supreme Court stated that, when the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. Accordingly, we will address defendant's second assignment of error first, because it relates to sufficiency of the evidence.

In his second assignment of error, defendant claims that the evidence, viewed in light most favorable to the prosecution, was insufficient to establish guilt beyond a reasonable doubt, because the State failed to prove the requisite criminal intent. The State responds that the evidence was clearly sufficient and argues that defendants intent in this case may be inferred from his actions and the circumstances.

The constitutional standard for testing the sufficiency of the evidence, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Honore, 564 So.2d 345, 351 (La.App. 5 Cir.1990), writ denied, 569 So.2d 968 (La.1990). This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477, p. 6 (La.2/22/06), 922 So.2d 517, 521. The trier-of-fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the fact-finder's discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213, p. 11 (La.1/19/06), 921 So.2d 94, 101.

Defendant was convicted of unauthorized use of movables valued in excess of $1000,² in violation of LSA-R.S. 14:68, which provides in pertinent part:

A. Unauthorized use of a movable is the intentional taking or use of a movable which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the movable permanently. The fact that the movable so taken or used may be classified as an immovable, according to the law pertaining to civil matters, is immaterial.

Money is a corporeal movable. Succession of Majoue, 97-710, p. 7 (La. App. 5 Cir. 11/25/97), 705 So.2d 225, 228. A person commits the crime of unauthorized use of a movable when he either takes or uses another's property without the owner's consent or by means of fraudulent practices. Although it does not require a person to act with intent to deprive the owner permanently of his property, LSA-R.S. 14:68 must reasonably be construed to require the existence of fraudulent intent. State v. Joseph, 05-368, p. 7 (La.App. 5 Cir. 1/17/06), 921 So.2d 1060, 1064; State v. Bias, 400 So.2d 650, 652 (La.1981). The State may produce direct or circumstantial evidence of fraudulent intent in unauthorized use cases. Id. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Davis, 40,382, p. 5 (La.App. 2 Cir. 10/26/05), 914 So.2d 1129, 1133, writ denied, 05-2419 (La.4/17/06), 926 So.2d 512. Though intent is a question of fact, it may be inferred from the circumstances of the transaction. State v. McKinney, 99-395, p. 6 (La.App. 5 Cir. 11/10/99), 749 So.2d 716, 719. State v. Calloway, 07-0012 (La.App. 1 Cir. 11/7/07), 978 So.2d 374.

In the present case, the State offered evidence that defendant engaged in 29 distinct transactions over the course of seven months, which ultimately...