State v. Brown
| Decision Date | 10 April 2013 |
| Docket Number | 2012 KA 0752 |
| Parties | STATE OF LOUISIANA v. RON A. BROWN |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
The defendant, Ron A. Brown, was charged by bill of information with two counts of theft of a value of five hundred dollars or more, but less than one thousand five hundred dollars, violations of LSA-R.S. 14:67(B)(2).2 The defendant pled not guilty, and, after a trial by jury, he was found guilty as charged on both counts. The defendant was originally sentenced to five years imprisonment at hard labor on each count, to be served concurrently. Subsequently, the State filed a habitual offender bill of information.3 After a hearing, the defendant was adjudicated a fourth felony habitual offender, and the trial court imposed an enhanced sentence of twenty-five years imprisonment at hard labor.
The defendant now appeals, assigning error to: the sufficiency of the evidence in support of the convictions; the trial court's failure to vacate the original sentence imposed, before resentencing on the enhanced count; and the constitutionality of the enhanced sentence. The defendant also notes that, based on the record, it appears that the trial court failed to inform him of the prescriptive period for filing an application for post-conviction relief. Furthermore, the defendant filed a pro se brief that raises: claims of ineffective assistance of counsel; trial court error in the denial of a continuance of the trial and a competency hearing; and violation of the rules of discovery. For the followingreasons, we: affirm the convictions; affirm the sentence in Case Number 503,846; affirm the habitual offender adjudication and the enhanced sentence in Case Number 503,932; vacate the original sentence imposed in Case Number 503,932; and remand with instructions.
On February 22, 2011, at about 4:30 p.m., Walmart asset protection associate Jason Pittman observed the defendant in the electronics section of a Walmart store in Covington, pushing a shopping cart draped with bathrobes that concealed any other contents. Pittman continued to observe the defendant as he selected a computer from a shelf and walked about one hundred feet away from the electronics section, to the fitting room area. The defendant then looked around, observing his surroundings, before pulling out a box cutter from his pocket and using it to cut the computer's packaging box to remove the attached electronic security device. The defendant walked back to the electronics section, placed the computer back on the shelf, removed another computer of the same or similar model, and placed it in a shopping cart being pushed by a female companion. They purchased the computer and exited the store. Following the couple out of the store, Pittman observed the female companion give the defendant the receipt for the purchased computer, as she pushed the computer towards a maroon or red SUV. As the defendant reentered the store, Pittman summoned police backup and continued to follow and observe the defendant as he walked back to the electronics section of the store, holding the receipt for the purchased computer in his hand. The defendant reselected the computer packaged in the box from which he had previously removed the electronic security device, placed the computer in his shopping cart, proceeded toward the front of the store without going through a checkout lane, and exited the store with the computer.
Pittman approached the defendant outside of the store, identified himself, and requested to see a receipt for the store merchandise. According to Pittman, the defendant flashed a receipt, but maintained possession of it. Pittman informed the defendant that he had been following him and instructed him to come back into the store with him, but the defendant attempted to flee. Deputies of the St. Tammany Parish Sheriff's Office apprehended the defendant, while Pittman monitored the merchandise. After being escorted back into the store to the loss prevention office for questioning and processing, the defendant signed a waiver of rights form and a notice restricting him from entering Walmart properties, and he gave an oral statement. The defendant refused to provide the identity of the female companion who gave him the receipt for the purchased computer.4
On March 5, 2011, at about 1:30 p.m., Walmart asset protection associate Brandon Brown observed the defendant in the electronics section of a Walmart store in Slidell and immediately recognized him as a theft offender included on the company's ban and watch list. Brandon5 observed the defendant select a forty-inch flat-screen television and place it in a shopping cart. The defendant ultimately made two separate purchases, the forty-inch flat-screen television and a Hewlett Packard desktop computer, and he received two receipts. The defendant exited the store with the items and loaded them into a maroon or red SUV. When the defendant reentered the store, Brandon notified the Slidell Police Department of a suspected theft in progress, commonly referred to as "double dipping."
The defendant met a female companion in the store and gave her one of his receipts. The defendant then went to the electronics section and selected a desktopcomputer of the same or similar model as the one he had just purchased, while the female companion selected a similar forty-inch flat-screen television and placed it in her shopping cart. Both bypassed the checkout lanes. The female companion exited the store with the shopping cart containing the second television and loaded the television into the SUV. One or two minutes later, the defendant exited the store with a shopping cart containing the second desktop computer. As the defendant was attempting to load the computer into the SUV, the police pulled up to the vehicle. As two officers approached from different directions, the defendant threw the computer and attempted to flee, but was apprehended along with the female subject, identified as Anika Butler6 The stolen television and computer were retrieved, returned to the store, and scanned through a cash register to ascertain the retail value of the merchandise.
In his first counseled assignment of error, the defendant contends that the evidence presented at trial was insufficient to support the convictions for theft. While the defendant does not deny stealing a computer on both of the dates in question, he contends that the State failed to prove the requisite value element in both offenses. As to the February offense, the defendant argues that Pittman had no independent knowledge of the value of the stolen computer. The defendant notes that there was no printout showing the retail price obtained with the UPC code or any other documentation of the value of the computer. As to the March offense, the defendant contends that the State only proved that he took the computer that had an uncontested value of less than five hundred dollars, but that there was no evidence that he knew his girlfriend was going to take the television.The defendant further notes that there was no video footage to show him interacting with his girlfriend before she stole the television,
The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and adopted by the Louisiana Legislature in enacting LSA-C.Cr.P. art. 821, 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. The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that, in order to convict, the trier of fact must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Delco, 2006-0504 (La. App. 1 Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160; State v. Graham, 2002-1492 (La. App. 1 Cir. 2/14/03), 845 So.2d 416, 420. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty, unless there is another hypothesis that raises a reasonable doubt. State v. Marrero, 2011-1285 (La. App. 1. Cir. 2/10/12), 92 So.3d 21, 29, writ denied, 2012-0563 (La. 6/15/12), 90 So.3d 1060 (citing State v. Captville, 448 So.2d 676, 680 (La. 1984)). See also State v. Sosa, 2005-0213 (La. 1/19/06), 921 So.2d 94, 99.
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. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. LSA-R.S. 14:67(A). In all cases involvingshoplifting, the term "value" is the actual retail price of the property at the time of the offense. LSA-R.S. 14:2(A)(2). Theft is a specific intent crime. Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired...
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