State v. Donnaud, 04-KA-624.

• Decision Date: 15 February 2005
• Docket Number: No. 04-KA-624.,04-KA-624.
• Citation: 896 So.2d 1151
• Parties: STATE of Louisiana v. Tammy L. DONNAUD.
• Court: Court of Appeal of Louisiana — District of US

896 So.2d 1151

STATE of Louisiana v. Tammy L. DONNAUD.

No. 04-KA-624.

Court of Appeal of Louisiana, Fifth Circuit.

February 15, 2005.

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Chris Cox, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Jane L. Beebe, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and JAMES L. CANNELLA.

SOL GOTHARD, Judge.

Defendant, Tammy Donnaud, appeals her conviction and sentence on a charge of unauthorized use of an "access card," in an aggregate amount of more than $2,000.00, a violation of LSA-R.S. 14:67.3. For reasons that follow, we affirm and remand.

Defendant was arraigned on April 23, 2003 and pled not guilty. The State subsequently amended the bill of information, which also included co-defendant William Kerner, IV,¹ to change the alleged time span of the offense. Kerner's attorney made a supplemental motion to quash in open court.² Defendant's counsel joined in the motion. The judge heard arguments and denied the motion.

Defendant and Kerner were tried together by a six-member jury, which returned a verdict of guilty as charged as to defendant.³ Defendant filed a timely Motion for New Trial, which was heard and denied by the trial court.

In due course, the trial court sentenced defendant to three years of imprisonment at hard labor. Defendant filed a Motion to Reconsider Sentence, which was denied. Defendant filed a timely Motion for Appeal, which was granted.

FACTS

Frank Stewart testified that he has been married to Cherie Kerner for eight years, and Ms. Kerner's brother is William Kerner, IV⁴. Defendant, Tammy Donnaud, is William Kerner's former wife.

Stewart testified that he has a credit card issued by First North American Bank. He keeps it as a spare card to use for emergency expenditures. He stores it in the top drawer of the nightstand next to his bed and has not used it since early 2002.

Stewart stated that he and his wife were away from their Metairie home for a family vacation from July 6 through July 25 or 26, 2002. He did not use his credit card between July and September 2002. He, nevertheless, began receiving billing statements from the issuing bank. He threw away the first one without opening it, assuming it was an advertisement. He received the next statement in October 2002. He opened it to find there was a considerable outstanding balance on his account. None of the merchants on the list of charges were those he commonly patronized.

The credit card statement from First North American Bank, dated July 2002 shows two transactions, dated July 19 and July 20 respectively. The credit card statement for August 2002 shows the opening date for that statement as August 1, and the closing date as August 26. The transactions for that period totaled $3,328.52. The September statement for that card consisted of two pages of charges, starting on August 28 and ending on September 20. The new charges on that statement totaled $3,130.85. The September statement reflected that a payment of $156.00 had been posted to Stewart's account, although he did not make a payment.

Stewart testified that he did not know who had stolen his credit card and that it had not been returned to him. Further, he did not give anyone the authority to use it. When he discovered the card was missing, he contacted the issuing bank to report the theft. The bank did not hold him responsible for the unauthorized charges. Stewart also reported the credit card theft to police. Stewart testified he also discovered that a Chevron credit card, some jewelry, and a laptop computer were missing from his home. He did not report the theft of those items to police, and they were never returned.

Stewart testified that, in June 2002, his wife allowed defendant and her young daughter, Kaitlyn, to stay in their home for the summer. When the family went on vacation, defendant and Kaitlyn remained at the house. Stewart stated that his mail is delivered through a slot in his home's front door, and anyone with access to his house could have taken the missing credit card bill.

Cherie Kerner testified that Tammy Donnaud and nine-year-old Kaitlyn showed up at the Stewart home with their belongings in late May or early June of 2002. Ms. Kerner was not expecting them, as she had not invited them to stay. She, nevertheless, welcomed them into her home. She wanted to help defendant, who had separated from her husband (Ms. Kerner's brother). Ms. Kerner testified her husband was not happy about the arrangement, since the family was about to go out of town. But he grudgingly gave his consent.

Defendant stayed at the family's house continuously between early June and August. Between July 6 and July 25, 2002, defendant, Kaitlyn, and Stewart's parents were the only persons who had access to the family's home. About a week after the family returned from their vacation trip, defendant and her daughter moved out of the house without explanation.

Ms. Kerner testified that the charges on the first credit card statement were made while the family was on vacation. One of the merchants was Langenstein's, a grocery store next to the family's home. Ms. Kerner testified that neither she nor her husband made the purchases billed. She further testified that she did not make a payment on the account in the amount of $156.00.

Ms. Kerner testified that, in October 2002, after the theft of the credit card had been discovered, she went to defendant's apartment accompanied by a Lafourche Parish deputy and her nephew, William Kerner, V ("Billy"). Billy, defendant's son, was living with Ms. Kerner and Mr. Stewart at that time. When they arrived at defendant's apartment, Billy used his key to gain entrance. He found that defendant was not at home. At that point the deputy left. Ms. Kerner and Billy saw several bags of young children's clothing on the floor in K-Mart shopping bags. Billy commented that it appeared the clothes were intended for his toddler-aged sons, Daniel and Dillan. Ms. Kerner testified that she also saw the laptop computer that had been stolen from her house. Ms. Kerner called the deputy to ask whether she and Billy had the authority to take the bags. She testified that the deputy told her she and Billy could take the bags, since Billy had a key to the residence and the authority to be there. Ms. Kerner said she did not take the computer out of defendant's residence, as it was old and had little value.

Billy carried the bags of merchandise out of the apartment. Ms. Kerner testified that she took the bags and kept them at her house. She testified that she knew from her husband's credit card statements that some of the unauthorized charges had been made at K-Mart. The merchandise still had its original sales tags. She testified that she brought the clothing to court with her. She contacted the two K-Mart stores listed on the statements, and asked that they fax to her the receipts that corresponded with the purchases listed on the statements. Ms. Kerner testified that when she received faxed copies of the K-Mart receipts, she was able to match the items on them to the items found in defendant's apartment.

Billy testified that defendant is his mother and co-defendant, William Kerner, IV, is his father. He began living with Cherie Kerner and Frank Stewart in August 2002, after his mother had left the couple's house. He testified that he visited defendant at the Metairie house in July 2002, but that he did not remove any property from the house.

After Mr. Stewart and Ms. Kerner discovered the credit card was missing, Billy asked defendant whether she had taken it. She told him she had not. Billy testified that he knew Ms. Kerner intended to have defendant arrested. He agreed to accompany Ms. Kerner to defendant's Cutoff apartment only for Kaitlyn's sake. He wanted to be there to comfort his sister when their mother was placed under arrest.

When they arrived at the apartment, Billy used his key to enter. He saw the bags of K-Mart clothing and assumed it was intended for his sons (defendant's grandchildren), who were living with their mother in Jefferson Parish. At first he did not allow Ms. Kerner to see the clothing. He hid it in a bag, because he knew that if Ms. Kerner saw the merchandise was from K-Mart, she would inspect it to determine whether it matched the purchases made on Stewart's credit card. He told Ms. Kerner the bag contained his possessions. Billy testified that when the two stopped to eat at a restaurant on their way back to Metairie, Ms. Kerner went to the car and looked into his bag. She found the clothing and took possession of it.

Linda Henderson testified that she is employed by K-Mart and that her duties include balancing daily receipts, making bank deposits, and paying all bills for store number 4810 in Metairie. Henderson identified various copies of K-Mart sales receipts introduced into evidence by the State. Henderson testified that each receipt was itemized; the receipts listed each item of merchandise purchased as part of the transaction. She further testified that clothing introduced by the State had tags with bar codes from store number 4810. The receipt for September 8 listed all the items found in the bag at defendant's apartment.

Shelly Ditta Doucet testified that she is a friend and neighbor of Frank Edwards and Cherie Kerner. She knows defendant, and spoke to her during her stay at her friends' home. Doucet testified that the last time she saw defendant was prior to Labor Day of 2002. By that time defendant was no longer staying with Ms. Kerner and Edwards. On a subsequent occasion, Doucet encountered defendant, who was accompanied by co-defendant and their daughter at Foodies Kitchens on Veterans Highway in Metairie. Doucet had never met co-defendant Kerner, but she recognized him from family...