State v. Bailey

• Decision Date: 30 September 2015
• Docket Number: No. 50,097–KA.,50,097–KA.
• Citation: 180 So.3d 442
• Parties: STATE of Louisiana, Appellee v. John Dee BAILEY, Appellant.
• Court: Court of Appeal of Louisiana — District of US

180 So.3d 442

STATE of Louisiana, Appellee

v.John Dee BAILEY, Appellant.

No. 50,097–KA.

Court of Appeal of Louisiana, Second Circuit.

Sept. 30, 2015.

Louisiana Appellate Project by Carey J. Ellis III, for Appellant.

Jerry L. Jones, District Attorney Brandon B. Brown, George M. Campbell, Jr., Michael J. Fontenot, Assistant District Attorneys, for Appellee.

Before CARAWAY, DREW and GARRETT, JJ.

GARRETT, J.

The defendant, John Dee Bailey, appeals his conviction for middle-grade felony theft, claiming there was insufficient evidence to support his conviction. He was sentenced to serve five years at hard labor, to be served consecutively with any other sentence, and to pay restitution to the victim of $1,500. He also claims on appeal that his sentence is excessive. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

Captain Mike Moore of the Ouachita Parish Sheriff's Office bought a 1992 Ford Explorer for $750 in September 2010. Within a short time after making this purchase, he gave the vehicle to his mother, Ruby Moore, who had it titled in her name and bought insurance for it. Ms. Moore spent $331 to repair an exhaust leak, the electric windows, and the radiator. Ms. Moore paid for the parts and her son-in-law did the work free of charge.

Ms. Moore rarely drove the vehicle and decided to sell it in early 2011.¹ She brought it to Southern Roofing in Bawcomville, Louisiana, and placed it on the parking lot to be sold. She originally asked $1,700, but later reduced her asking price to $1,500. The vehicle sat on the lot for approximately three weeks until it was stolen on or about March 26, 2011. A report was made to law enforcement and the vehicle was entered into the NCIC database.

In May 2011, sheriff's officials in Union Parish were delivering papers to a residence in that parish. The individual at that address said, "I guess you're here about the vehicle?" Upon investigation, Ms. Moore's vehicle was found in the woods behind the residence where it had been pushed. It was missing the engine and transmission. The back window had been broken out. The grill, hood, and bumper had been removed. Some pieces of the vehicle were found at the residence where the vehicle was recovered. The engine and transmission were never found.

Captain Moore retrieved the vehicle and Ms. Moore eventually sold it for scrap for about $200. Ms. Moore testified that she did not give the defendant permission to use the vehicle.

The defendant was developed as a suspect and was located at the Ouachita Correctional Center, where he was being held on other charges. He was informed of his Miranda rights. He waived those rights and confessed, admitting that he had stolen the vehicle. The defendant said that he was walking along the Jonesboro Highway when he saw the vehicle parked on the lot for sale. The defendant had a similar vehicle and intended to use parts from Ms. Moore's Explorer to repair his own vehicle. The defendant said he found an unlocked door on the car and was able to hot-wire it and drive it to the residence of a friend in Union Parish where it ultimately was found. He and the friend disassembled the vehicle.²

The defendant was charged by bill of information with theft of a 1992 Ford Explorer having a value greater than $1,000, in violation of La. R.S. 14:67. He was tried by a six-person jury. On January 31, 2012, the jury returned a verdict of guilty of theft of property valued at $500 or more, but less than $1,500.

A presentence investigation ("PSI") was ordered. The defendant appeared before the trial court for sentencing on April 17, 2012. The defendant was sentenced to five years at hard labor, to be served consecutively with any other sentence, and to pay restitution to the victim of $1,500. No motion to reconsider the sentence was filed and no appeal was immediately filed. Pursuant to a post-conviction relief application, the defendant was granted an out-of-time appeal on July 29, 2014.

SUFFICIENCY OF THE EVIDENCE

The defendant contends that the prosecution failed to present sufficient evidence to support all of the elements of the crime of middle-grade felony theft. This argument is without merit.

Legal Principles

The standard of appellate review for a sufficiency of the evidence claim is whether, after 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate, 2001–1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Crossley, 48,149 (La.App.2d Cir.6/26/13), 117 So.3d 585, writ denied, 2013–1798 (La.2/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, 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, 2005–0477 (La.2/22/06), 922 So.2d 517 ; State v. Crossley, supra.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994–3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009–0725 (La.12/11/09), 23 So.3d 913 ; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007–1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983) ; State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009–0372 (La.11/6/09), 21 So.3d 299.

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. Speed, supra; State v. Crossley, supra ; State v. Stephens, 49,680 (La.App.2d Cir.5/20/15), 165 So.3d 1168.

In 2011, when this offense was committed, La. R.S. 14:67 provided in pertinent part:

A. Theft is 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.

B. (2) When the misappropriation or taking amounts to a value of five hundred dollars or more, but less than a value of one thousand five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both.

The elements of the crime of theft are: (1) that there be a misappropriation or taking, (2) that the misappropriation or taking be of a thing of value, (3) that the thing belong to another, and (4) that the misappropriation or taking be with the intent to deprive the other permanently of that which is the subject of the taking. State v. Pittman, 368 So.2d 708 (La.1979) ; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998–2723 (La.2/5/99), 737 So.2d 747 ; State v. Cobb, 2013–1593 (La.App. 1st Cir.3/27/14), 144 So.3d 17. The prosecution must also prove the value of the stolen thing because the thing's value is determinative of both the severity of the offense and the degree of punishment upon conviction. State v. Cobb, supra.

Unless it is shown that the owner lacks knowledge of the value of a movable, his testimony as to value is generally admissible, with its weight being left to the jury. State v. McCray, 305 So.2d 433 (La.1974) ; State v. Dilworth, 358 So.2d 1254 (La.1978) ; State v. James, 36,493 (La.App.2d Cir.12/11/02), 833 So.2d 1162 ; State v. Henry, 46,406 (La.App.2d Cir.8/10/11), 73 So.3d 958 ; State v. Johnson, 31,448 (La.App.2d Cir.3/31/99), 747 So.2d 61, writ denied, 1999–1689 (La.11/12/99), 749 So.2d 653, cert. denied, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000). The owner does not have to be an expert, nor need he be qualified as an expert at valuation. State v. James, supra.

Discussion

The defendant argues that the prosecution failed to prove that the value of the stolen vehicle was greater than $500, but less than $1,500. This argument is not supported by the record.

Captain Moore testified at trial that he purchased the vehicle for $750 in September 2010. He stated that the vehicle was in good condition. The vehicle was transferred to Ms. Moore's name within a short time of the purchase. Ms. Moore spent $331 to make repairs to the exhaust system, radiator, and electric windows. She testified that the vehicle "ran good" after repairs.

Ms. Moore rarely drove the vehicle and decided to sell it in March 2011. She initially asked $1,700 for it before lowering the price to $1,500. The Explorer was stolen approximately three weeks after Ms. Moore decided to sell it and six months after Captain Moore originally purchased it.

Under these facts, there was sufficient evidence in the record upon which the jury could reasonably conclude that the vehicle was worth more than $500 at the time it was stolen. The testimony of both Captain Moore and Ms. Moore establishes the value of the vehicle and there was no...