State v. Cotton

• Decision Date: 15 April 2016
• Docket Number: No. 2015 KA 1623.,2015 KA 1623.
• Citation: 194 So.3d 69
• Parties: STATE of Louisiana v. James E. COTTON.
• Court: Court of Appeal of Louisiana — District of US

194 So.3d 69

STATE of Louisiana

v.James E. COTTON.

No. 2015 KA 1623.

Court of Appeal of Louisiana, First Circuit.

April 15, 2016.

Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, LA, for Appellee, State of Louisiana.

Rachel M. Yazbeck, New Orleans, LA, for Defendant–Appellant, James E. Cotton.

Before PETTIGREW, HIGGINBOTHAM, and CRAIN, JJ.

HIGGINBOTHAM, J.

Defendant, James E. Cotton, was charged by amended bill of information with two counts: (1) Count One—theft between $500.00 and $1,500.00, a violation of La. R.S. 14:67(B)(2) (prior to 2014 amendment); and (2) Count Two—identity theft between $500.00 and $1,500.00, a violation of La. R.S. 14:67.16 (prior to 2014 amendment).¹ He pled not guilty. Following a jury trial, defendant was found guilty as charged on count one, and guilty of identity theft in the amount of $1788.00.² The trial court sentenced defendant to four years at hard labor on each count and ordered these sentences to run concurrently. The trial court denied defendant's motion to reconsider his sentences.³ Defendant now appeals, alleging three assignments of error. For the following reasons, we affirm the conviction and sentence on count one, but reverse the conviction and sentence on count two.

FACTS

On August 23, 2013, Monica Smith went to a Valero gas station in Franklinton to purchase diesel fuel for her vehicle. As Ms. Smith exited her vehicle, defendant approached her and offered to give her $25.00 in diesel if she, in return, gave him $20.00 in cash. She declined. Over Ms. Smith's objection, defendant used a credit card to activate the fuel pump, and he pumped $25.00 worth of diesel into Ms. Smith's vehicle. Out of fear, Ms. Smith gave defendant $20.00 in cash.

After she paid defendant, Ms. Smith went inside the Valero convenience store and reported the incident to the cashier. The cashier called the police. Sergeant William Manning, of the Franklinton Police Department, responded to the call. After arriving at the gas station, Sergeant Manning was informed that the individual who approached Ms. Smith was one of two black males (the driver) in an older model, large car. Sergeant Manning learned that the vehicle had left the gas station heading east on Washington Street toward Bogalusa. Sergeant Manning left the Valero and located a vehicle matching the witnesses' description at a nearby Chevron truck stop. Inside were two black males, with defendant sitting in the driver's seat.

Sergeant Manning spoke with defendant and asked him if he possessed a gas card. In response, defendant produced a Wex Fleet gas credit card that listed defendant's name, “James Cotton,” and that of his employer, “Grady Crawford Construction” on the front. Defendant told Sergeant Manning that he had permission to use the Wex Fleet card. Sergeant Manning seized the card for further investigation.

In furtherance of his investigation, Sergeant Manning went back to the Valero and secured a surveillance video of defendant's interaction with Ms. Smith. He also contacted Grady Crawford Construction. Defendant's employment records indicate that he did not report to work at Grady Crawford Construction on at least ten weekdays between August 5–23, 2013. Thera Head, the company's financial controller, accessed an electronic statement of defendant's Wex Fleet gas card activity for August of 2013. This information showed numerous fuel purchases made with defendant's Wex Fleet card on days when he did not report to work. Ms. Head testified at trial that employees were authorized to use the Wex Fleet card during working hours, and for company vehicles only. Defendant did not have access to a take-home company vehicle. Cross-referencing defendant's time sheets with the Wex Fleet statement, Ms. Head determined that approximately $1,788.00 in fuel purchases were made at times when defendant was not working for Grady Crawford Construction. On August 30, 2013, Sergeant Manning secured an arrest warrant for defendant, who was ultimately arrested approximately one year later.

SUFFICIENCY OF EVIDENCE

When issues are raised on appeal as to both sufficiency of evidence and other trial errors, the appellate court should first review the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). Thus, we first address defendant's second assignment of error in which defendant contends that the evidence presented at trial was insufficient to support his convictions for theft and identity theft. With respect to the theft conviction, defendant argues that the State failed to prove his identity as the person who made all but $25.00 of the unauthorized purchases on the Wex Fleet card, and he also argues that the State did not adequately prove the valuation of the theft. Regarding the identity theft conviction, defendant claims that the State failed to prove he utilized the personal identifying information of another person, as well as the valuation tied to the identity theft.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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 beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.Code Crim. P. art. 821(B) ; State v. Ordodi, 2006–0207 (La.11/29/06), 946 So.2d 654, 660 ; State v. Mussall, 523 So.2d 1305, 1308–09 (La.1988 ). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001–2585 (La.App. 1st Cir.6/21/02), 822 So.2d 141, 144.

When a conviction is based on both direct and circumstantial evidence, the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98–0601 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 487, writs denied, 99–0802 (La.10/29/99), 748 So.2d 1157, and 2000–0895 (La.11/17/00), 773 So.2d 732.

Theft Between $500.00–$1500.00

On count one, defendant was charged with theft valued between $500.00 and $1500.00. See La. R.S. 14:67(B)(2) (prior to 2014 amendment). 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. La. R.S. 14:67(A).

Theft is a specific intent crime. See State v. Bean, 2004–1527 (La.App. 1st Cir.3/24/05), 899 So.2d 702, 707, writ granted on other grounds, 2005–1106 (La.3/8/06), 925 So.2d 489, writ denied, 2005–1106 (La.11/3/06), 940 So.2d 652. Specific criminal intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Henderson, 99–1945 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 751, writ denied, 2000–2223 (La.6/15/01), 793 So.2d 1235.

Defendant asserts two arguments with respect to his theft conviction. First, he contends that the State only proved his identity as the perpetrator of a theft insofar as it tied him to the $25.00 purchase of diesel made in connection with Ms. Smith's vehicle. Second, he argues that the State relied upon inadmissible hearsay in the form of a downloaded Wex Fleet statement to prove the amount misappropriated in the instant case. Defendant does not dispute that something of value has in fact been misappropriated or that any misappropriations were done with the intent to permanently deprive, so we do not directly address those elements here, but we note that there is ample evidence to support these findings.

Defendant did not testify at trial. To prove defendant's identity as the individual who perpetrated the theft, the State relied primarily upon circumstantial evidence. The only direct evidence tying defendant to an unauthorized use of the Wex Fleet card was presented through Ms. Smith's testimony that she was approached by defendant, who offered to put $25.00 worth of diesel into her vehicle in exchange for $20.00 in cash. However, the State presented extensive circumstantial evidence tying defendant to the unauthorized purchases using the Wex Fleet card. Ms. Head testified that the Wex Fleet card used by defendant was assigned to him, had his name on it, and required both a personal identification number (a “PIN” chosen either by the individual or the company) and odometer reading in order to make a purchase. The back of the Wex Fleet card contains a statement: “ODOMETER READING AND DRIVER ID# ARE REQUIRED FOR USE.” Defendant was given this card as part of his...