State v. Duhon

• Citation: 270 So.3d 597
• Decision Date: 28 December 2018
• Docket Number: 2018 KA 0593
• Parties: STATE of Louisiana v. Armond DUHON
• Court: Court of Appeal of Louisiana (US)

270 So.3d 597

STATE of Louisiana

v.Armond DUHON

2018 KA 0593

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: DECEMBER 28, 2018

M. Bofill Duhé, Walter J. Senette, Jr., Franklin, LA, Robert Clauson Vines, W. Claire Howington, New Iberia, LA, Counsel for Appellee, State of Louisiana

Sherry Watters, New Orleans, LA, Counsel for Defendant/Appellant, Armond Duhon

BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

WHIPPLE, C.J.

The defendant, Armond Duhon, was charged by bill of information with one count of racketeering, a violation of LSA-R.S. 15:1353, two counts of money laundering valued at $20,000.00 or more, but less than $100,000.00, violations of LSA-R.S. 14:230(E)(3),¹ and 221 counts of theft valued at $1,500.00 or more,² violations of LSA-R.S. 14:67(B)(1).³ He pled not guilty on all counts. The defendant filed a motion to waive trial by jury, the trial court granted the motion, and the defendant proceeded to a bench trial. The defendant was found guilty of the responsive offense of theft valued at $500.00 or more, but less than a value of $1,500.00, on counts 31, 516, 570, 600, 638, 656, 657, 660, 665, 669, 675, 676, 687, 690, and 761, violations of LSA-R.S. 14:67(B)(2).⁴ He was found guilty as charged on all of the remaining 209 counts. The trial court denied the defendant's motion for a new trial.

On count 1 (racketeering), the defendant was sentenced to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On count 565 (money laundering), the defendant was sentenced to fifteen years imprisonment at hard labor. On count 754 (money laundering), the defendant was sentenced to twelve years imprisonment at hard labor. On the fifteen aforementioned responsive verdicts to counts of theft valued at $500.00 or more, but less than $1,500.00, the defendant was sentenced to six months in parish jail on each count, to be served concurrently. On the 206 remaining counts of theft, the defendant was sentenced to eight years imprisonment at hard labor, to be served concurrently with the sentences imposed on counts 1, 565 and 754. The defendant was also ordered to pay $2,328,000.00 restitution to the Guarisco family and $200,000.00 to the D.A.'s office for prosecution fees. The trial court denied the defendant's oral motion to reconsider sentence.

The defendant now appeals, briefing the following assignments of error:

1. The trial court erred in conducting a judge trial without having a valid waiver of the right to a jury that met the requirements of [ LSA-C.Cr.P. art.] 780.

2. The trial court erred in allowing the State to sever the co-defendant on the day of trial to thwart the presentation of the defense, and compounded the error by denying the request for a continuance and allowing the State to elect to try [the defendant] first and immediately.

3. The convictions are invalid for all counts of misdemeanor theft plus the counts of felony theft that occurred before November 9, 2012, and one count of money laundering that occurred before November 9, 2010, which prescribed before the bill of information was filed.

4. The trial court erred in allowing the testimony of a purported handwriting expert who had no factual basis for rendering an opinion.

5. The trial court erred in allowing bank records into evidence without the proper foundation and in violation of the right to confrontation.

6. The State failed to prove, beyond a reasonable doubt, that [the defendant] engaged in racketeering, money laundering or theft.

7. The trial court erred in imposing unconstitutionally excessive sentences on the [sixty-three-year-old] first offender and denying his motion to reconsider.

For the following reasons, we reverse and render modified convictions on counts 34, 39, 49, 57, 69, 73, 84, and 89, reverse the convictions on counts 87 and 751, and affirm the remaining convictions. As to the sentences, we reverse the sentences on counts 87 and 751, vacate the sentence on count 1 and remand for resentencing on count 1, and affirm the remaining sentences.

STATEMENT OF FACTS

Detective Travis Trigg of the Morgan City Police Department ("MCPD") began investigating theft complaints after a representative of Capital Management Consultants, Inc. ("CMCI"), a real estate investment and holding company for art galleries and apartment buildings, advised the MCPD of suspicious transactions. At the time of the complaint, Karen Duhon ("Mrs. Duhon") was the bookkeeper and DonnaSue Peveto ("Peveto") was the overseer of art inventory at CMCI. After questioning witnesses regarding the complaint, Detective Trigg executed a search warrant at CMCI, including Mrs. Duhon's office, and at the Duhon residence. In executing the warrants, Detective Trigg seized various financial documents, ledgers, and a large amount of lottery tickets and other gambling related items. Detective Trigg further issued search warrants for casino records, and the bank records of the defendant, Mrs. Duhon, Peveto, and A-B-C Siding Company of Morgan City, Inc. ("A-B-C Siding"), a general contracting corporation owned by the defendant. The search warrants for bank records were specifically issued at MidSouth Bank, Whitney Bank, and Morgan City Bank, requesting records from 1999 through 2010, initially, and thereafter, warrants issued requesting records from 2011 through 2014. Detective Trigg further received records from Leah Guarisco McGriff (one of the members of the Guarisco family that owned CMCI) that were recovered from computers at CMCI.

Based on his review of the documents and questioning of witnesses, Detective Trigg noted the following patterns of activity. In multiple instances, the amounts identified by Mrs. Duhon in the bank ledger differed from the amount written on the corresponding checks. Specifically, Detective Trigg noted that Mrs. Duhon would receive checks for around $14,000.00 and $9,500.00 that, under CMCI records, were documented as $1,000.00 or less. Detective Trigg testified that although the defendant was not an employee of CMCI, he and Mrs. Duhon opened a joint checking account at MidSouth Bank and ordered checks that indicated that the account belonged to CMCI. Detective Trigg testified that it was his understanding that Scott Tucker, ("Tucker") the owner of Nelson-Tucker, L.L.C. ("Nelson-Tucker"), secretary and shareholder of CMCI, and president of Hellenic, L.L.C. (a separate Guarisco holding), was authorized to write checks on CMCI's actual bank account. Detective Trigg reviewed W-2 statements filed by Mrs. Duhon and CMCI, signed by Mrs. Duhon, and Mrs. Duhon's bank records from 1999 through 2013. Detective Trigg noted that the income reported on the W-2 forms was far less than the amount of money that was diverted from CMCI to the Duhons.

On July 7, 2010, a check for $50,000.00 was written to Mrs. Duhon out of CMCI's bank account. Further, there was a corresponding deposit of that amount into Mrs. Duhon's personal Whitney Bank account. The following day, July 8, 2010, the defendant purchased a 2010 Toyota Sequoia in his name, and in accordance with the title and registration, with Mrs. Duhon's personal check in the amount of $40,499.50. The Toyota Sequoia was later sold back to Courtesy Toyota for $26,000.00, in the form of a cashier's check made out to the defendant. Three years later, on October 17, 2013, the defendant similarly purchased a 2014 Ford-250 in his name, as indicated by the title and registration, with a check from his A-B-C Siding MidSouth Bank checking account. On the day the check was written, the A-B-C Siding account did not have sufficient funds to cover the check. The following day, October 18, 2013, a MidSouth Bank check for $30,000.00 made payable to "A-B-C Siding Co" was signed by Mrs. Duhon and deposited into the defendant's A-B-C Siding MidSouth Bank checking account. The check bore the following names as the payor: Capital Management Consultants, Inc., Armond Duhon, and Karen Duhon.⁵

In February of 2014, the Guarisco family hired Mark Munson, a certified public accountant (CPA), to conduct a forensic analysis for CMCI. Munson testified at trial as an expert, and as a certified public accountant with an emphasis in audit and reviews and compilations. Munson was initially retained by the Guariscos after Tucker died to prepare the 2013 corporation tax returns. When he attempted to acquire the year-end working trial balance and general ledger, he learned that they were prepared by Tucker and Mrs. Duhon. Along with Laura Guarisco, Munson made several requests to Mrs. Duhon to obtain the information and received excuses in response for up to six weeks. Munson ultimately received a package from Mrs. Duhon, however, it did not contain the necessary financial documents, such as the working trial balance and the general ledger.

In late February to early March of 2014, Munson met with some of the Guarisco siblings in Morgan City, and they searched Mrs. Duhon's office. They found the bank statements, check register, and documentation showing that she took steps to begin the bookkeeping for 2013, but did not actually make any significant progress. Munson took the information back to his office and prepared the books for 2013. He noted that the amount of income that Mrs. Duhon told Laura she was making did not coincide with the records. He stated that in comparing bank statements and check stubs, it became apparent that checks were being written for one amount and clearing the bank for substantially more. He noted that the amount reflected in the check register was often significantly less than the amount that cleared the bank for the corresponding check.

The Guariscos asked Munson to examine the books for previous years to detect other discrepancies, and Munson prepared a written analysis of the checks and the discrepancies, showing how unauthorized funds were concealed. He noted patterns such as Mrs. Duhon writing herself a check and recording it as $1,000.00, but the check clearing...