State v. Calloway

• Court: Court of Appeal of Louisiana
• Writing for the Court: Hughes
• Citation: State v. Calloway, 978 So.2d 374 (La. App. 2007)
• Decision Date: 07 November 2007
• Docket Number: No. 2007 KA 0012.,2007 KA 0012.
• Parties: STATE of Louisiana v. Karen Marie CALLOWAY.

978 So.2d 374

STATE of Louisiana v. Karen Marie CALLOWAY.

No. 2007 KA 0012.

Court of Appeal of Louisiana, First Circuit.

November 7, 2007.

Joseph L. Waitz, Jr., District Attorney, Barry Vice, Ellen Daigle Doskey, Assistant District Attorneys, Houma, LA, for Appellee, State of Louisiana.

Gwendolyn Brown, Baton Rouge, LA, for Defendant/Appellant, Karen Marie Calloway.

Before PETTIGREW, DOWNING, and HUGHES, JJ.

HUGHES, J.

Defendant, Karen Marie Calloway, and the codefendant, her seventeen-year-old son Demond Kentrell Calloway, were charged by bill of information with illegal possession of stolen things having a value greater than $500.00, violations of La. R.S. 14:69. They pleaded not guilty. A jury found Demond not guilty and Ms. Calloway guilty as charged. She filed motions for new trial and for judgment notwithstanding the verdict, but these were denied. She was sentenced to three years imprisonment at hard labor. Her motion for reconsideration of the sentence was denied, as was her request for an appeal bond. She now appeals, designating the following six assignments of error:

Assignment of Error No. 1

The evidence is insufficient to support the conviction as it is based upon circumstantial evidence and the State failed to exclude every reasonable hypothesis of innocence.

Assignment of Error No. 2

The trial court erred by denying Ms. Calloway's motion for judgment notwithstanding the verdict.

Assignment of Error No. 3

The trial court erred by denying Ms. Calloway's motion for new trial.

Assignment of Error No. 4

The trial court erred by imposing an excessive sentence.

Assignment of Error No. 5

The trial court erred by denying Ms. Calloway's motion to reconsider sentence.

Assignment of Error No. 6

The trial court erred by denying Ms. Calloway's motion for appeal bond.

For the following reasons, we reverse the conviction and sentence.

FACTS

When Hurricane Katrina struck the New Orleans area on August 29, 2005, Ms. Calloway, her boyfriend Travis Williams, her teenaged son Demond, her asthmatic ten-year-old daughter Kashawn, her seven months' pregnant "sister-in-law" Stephanie Williams, and a teenaged female neighbor named Keesa, were living in her apartment in Marrero. The group remained at the Marrero apartment for two days without electricity or a working phone, then decided to try and reach the Superdome to seek shelter when their supplies began running low, and looting and robberies were occurring in the neighborhood. They walked and hitched a ride to the Crescent City Connection bridge area, where the women stayed to rest while the men went to the Superdome. But the men were turned away by police at the Superdome and the family had to spend the night on the bridge. The men tried again the next day to reach the Superdome but were again turned away.

By that time, the family had run out of food and water and the situation on the bridge was deteriorating rapidly. They saw fighting, heard screaming, and learned that rapes and robberies were going on. Demond witnessed a stabbing over water that a man was saving for his infant. When a stranger tried to grab at Ms. Calloway's young daughter Kashawn, the family decided to return to their Marrero apartment.

When they returned home, their apartment had been broken into and their remaining food and water had been stolen. The door and windows had been kicked open and the family adults took turns during the night standing guard over the children. During the night, they heard screaming and gunshots around the area. There were no police. As the looting continued throughout the night in her neighborhood, Ms. Calloway began fearing for her and her family's safety since they had no food, electricity, water, or use of a phone. They had also heard that the nearby Harvey Canal might overflow.

The next day, a neighbor told Ms. Calloway that some men were at a location about half a mile away selling cars. Ms. Calloway and her son Demond walked over to look at the cars. They spoke to a man named "Reggie," who Ms. Calloway had heard around the neighborhood usually had cars to sell. Reggie had five or six vehicles and suggested that he would sell Ms. Calloway a Toyota Solara, but she wanted to purchase a Toyota Tundra pickup that Reggie had, thinking it would hold more people and belongings. Reggie was reluctant to sell the truck, indicating that he needed it, but the two continued negotiating. Ms. Calloway had to return home because her daughter had an asthma attack.

When Ms. Calloway returned to Reggie, she gave him $2,200.00,¹ for which she expected to buy the Tundra pickup. Instead, and to her surprise, Reggie gave her the keys to both the Tundra and the Solara. Reggie told Ms. Calloway that he did not have the sale documents available at that moment, but that he would either send the documents to the Houma address Ms. Calloway provided or bring them to her himself. Ms. Calloway later testified that at the time, she did not concern herself overly with the paperwork due to the chaos of the situation. Similarly, she did not suspect the vehicles were stolen because Reggie had the keys to both when he sold them to her and the vehicles did not look to have been broken into or hotwired.

After acquiring the two vehicles, Ms. Calloway packed up her family and their belongings and they drove the Tundra and the Solara to Houma, where they stayed with Ms. Calloway's mother. About two months later, detectives from the Houma Police Department received a tip that led them to discover that the Solara and Tundra were stolen vehicles owned by Dr. Dimetry Cossich and Kevin Adams, respectively.

At the trial, Dr. Cossich, a dentist, testified that he purchased a new 2004 Solara for about $32,000.00 from Don Bohn Toyota on LaPalco Boulevard in Harvey. Before the hurricane hit, Dr. Cossich had brought the Solara to the dealership for a minor repair to a window. When the hurricane struck, Dr. Cossich evacuated, leaving the Solara at the dealership. Dr. Cossich testified that before the hurricane, the Solara was in excellent condition and had about 24,000 miles on it.

The facts concerning Mr. Adams's Toyota Tundra are similar. Mr. Adams testified that he purchased the 2003 Tundra new for about $30,000.00 from Bohn Brothers Toyota on LaPalco Boulevard in Harvey. Prior to the hurricane, Mr. Adams brought the Tundra to the dealership to have the power steering repaired. When the hurricane struck, Mr. Adams evacuated, leaving the Tundra at the dealership. He testified that before the hurricane, the Tundra was in excellent condition and had about 40,000 miles on it.

Both Dr. Cossich and Mr. Adams testified that they attempted to make a stolen vehicle report with Jefferson Parish authorities but were unable to do so. Dr. Cossich testified that the police advised him that they were not taking stolen car claims at that time.

Ms. Calloway testified that when she bought the Tundra pickup from Reggie, it was not severely damaged, but it was in only fair condition. She testified that the Solara had key marks on it, the sunroof was cut, there were dents in it, and the floor was wet. Travis Williams, Ms. Calloway's boyfriend, also testified that the vehicles were not in excellent condition. He reported that the Solara was "keyed up," the sunroof was cut open, the rearview mirror was broken off, and it had water damage to the interior. He testified that the Tundra had a flat tire and the stereo system had been ripped out, which left all the stereo wires hanging and exposed.

Ms. Calloway testified that while she did not purchase the vehicles from a known car lot, Reggie was known for selling vehicles in the back of the neighborhood.² She did not have a driver's license and prior to purchasing these two vehicles, she had never owned or purchased a car before. Thus, she testified, she had no way of knowing the retail value of the vehicles she purchased. She testified that it never crossed her mind that the vehicles were stolen. They did not look broken into or hot-wired and she thought that since the levee was getting ready to break, Reggie was trying to get rid of the cars "now and get something for it, or let the rain hit it and water take it away and get nothing for it."

In Houma, Ms. Calloway never altered or changed the Tundra's license plate or attempted to disguise or camouflage the vehicle in any way. Demond testified that he regularly drove the Solara to school and to work while in Houma after the hurricane. He testified that he had no idea the car was stolen. The price paid for the vehicles did not concern him and he did not discuss it with his mother. Ms. Calloway testified it was her understanding that Reggie was coming to Houma and would then give her the title to the vehicles. As it turned out, Reggie never did go to Houma and when Ms. Calloway went back to Marrero and looked for him, he was gone.

Jeff Walters, who qualified at the trial as an expert on appraising automobiles, testified on direct examination that a used 2004 Solara in excellent condition with 24,000 miles and features similar to those of Dr. Cossich's Solara would bring between $22,000.00 and $24,000.00 at an auction. If sold by a private individual, it would sell for between $24,000.00 and $27,000.00. Mr. Walters also testified that a 2003 Tundra, used but in excellent condition with 40,000 miles and features similar to those of Mr. Adams's Tundra, would have a wholesale value of $17,000.00 and a retail value as high as $20,500.00. On cross-examination, Mr. Walters testified that a $20,000.00 vehicle that was water-damaged would likely sell for "twenty-five cents on a dollar, at worst" or roughly $5,000.00. He was also asked on cross-examination: "[i]f, in fact, the vehicles were waterlogged, had some engine-power steering, the interior was trashed, maybe a little damaged, would it come a point where you would not pay a penny for those vehicles?" He responded "In my current position, I would not."

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