State v. Folse

• Decision Date: 21 September 2018
• Docket Number: NO. 2018 KA 0154,2018 KA 0154
• Citation: 258 So. 3d 53
• Parties: STATE of Louisiana v. Tyrone FOLSE
• Court: Court of Appeal of Louisiana — District of US

258 So.3d 53

STATE of Louisiana

v.Tyrone FOLSE

NO. 2018 KA 0154

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: SEPTEMBER 21, 2018

Aaron P. Mollere, Reserve, Louisiana, Counsel for Defendant/AppellantTyrone Folse

Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee State of Louisiana

BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

THERIOT, J.

The defendant, Tyrone Folse, was charged by bill of information in district courtdocket number 712011 with residential contractor fraud when the misappropriation or intentional taking amounts to a value of one thousand five hundred dollars or more, a violation of La.R.S. 14:202.1(C)(3)(prior to amendment by 2017 La. Acts, No. 281, § 1).^1,2He pled not guilty and, after a trial by jury, was found guilty as charged.The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial.The defendant was sentenced to five years imprisonment at hard labor and ordered to pay eight thousand dollars of restitution within six months of his release, or in default thereof, to serve an additional two years imprisonment at hard labor.The trial court further ordered that the sentence be served consecutive to any other sentence.The defendant now appeals, assigning error to the trial court's denial of a challenge for cause to strike a juror, the admission of his pretrial statement, statements by the prosecution at trial, the constitutionality and legality of the sentence, and the sufficiency of the evidence.For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On December 10, 2014, Larry Gale Wells, the victim herein, entered into a contract with the defendant to build a fence around his home located at 104 Linest Drive in Houma.Under the agreement, the defendant agreed to install approximately 250 feet of fencing for a total contract price of $10,000.00.Two days later, Wells provided the defendant with a check for a down payment of $8,000.00, and the check was cashed on that same day.The residence was still under construction at the time.The contract was later amended by mutual agreement to reduce the size of the fence by 35 feet, and to reduce the total contract price to $9,000.00.As the residence was still under construction when the contract was executed, Wells contacted the defendant by phone in late February of 2015 to inform him that he could commence the work at that time.After additional phone contact by Wells, the defendant began the work in late March, after Wells had moved into the residence.

Specifically, the defendant installed a twelve-foot fence around the patio (a puppy fence) and began forming the footer or concrete chain wall for the main fence.

Wells indicated that the portion of the work described was done prior to mid-July of 2015 and that the defendant did not perform any additional work.He confirmed that the defendant did not complete the work under the contract.Wells ultimately hired someone else to complete the fence and was never reimbursed by the defendant for any portion of his $8,000.00 down payment.

ASSIGNMENTS OF ERROR

The defendant cites seven assignments of error:

1.The trial court erred in failing to strike Juror Shanida Kanach for cause since Ms. Kanach admitted to being unable to fully read and understand the English language.

2.The trial court erred in allowing the defendant's statement to be introduced over the objection of defense counsel since the state failed to read the defendant his Miranda³ rights prior to taking his statement.⁴

3.The trial court erred in failing to strike prejudicial statements made by the prosecution and failed to give an order for the jury to disregard the same.

4.The trial court's sentence of five (5) years on each count to be served consecutively is grossly disproportionate, excessive, cruel, and unusual.

5.The trial court erred in failing to grant the defendant's motion for a new trial since the evidence was not sufficient to uphold a conviction.The state failed to prove each and every element of the offense charged.

6.The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.

7.The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number five, the defendant argues that evidence was not sufficient to uphold the conviction.Thus, he asserts in assignment of error number five that the trial court should have granted his motion for new trial.As to each of the three cases, the defendant argues that the State failed to prove the element of "greater than $1,500.00" as well as whether no work was done after receiving payment.He argues that the State's assertion at trial that any forty-five day period of no work was sufficient to constitute a violation of La.R.S. 14:202.1 is a misreading of the statute.In that regard, he argues that the statute is clear and unambiguous in that the legislative intent is to charge a defendant if zero work is done on the contract.He concludes that as to each contract, a lot of work was done on each parcel of property that he entered into a contract to make improvements thereto.⁵

As to the instant offense involving the contract with Larry Wells, the defendant claims that Wells paid him $8,000.00 as a down payment on a $10,000.00 contract.He claims that the material was to take six to eight weeks to come in before the work was to start.He further claims that some of the work was completed, including a chain wall and a puppy fence.However, he argues that no indication was given at trial as to how much work was done.The defendant claims that it is impossible to factually determine the value of the work that was completed along with the value of the work that remained incomplete.The defendant further claims that there was testimony by the police and the defendant to show that an employee of the defendant took the funds that were supposed to be used to order the materials for work and that he did not notice this occurrence for several weeks.He argues that element of the offense regarding forty-five days without any work being performed would have long lapsed had he reordered materials, which he claims would have taken a minimum of six to eight weeks to arrive.Accordingly, he adds the claim that this circumstance was completely out of his control.He further argues that based on the testimony presented at trial regarding the Wells case, it may be conceivable that La.R.S. 14:202.1 is inapplicable to this case, again claiming that the work was in progress as the materials were not yet available, and that a significant portion of the work under the contract had been completed.⁶

When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.The reason for reviewing sufficiency first is that the accused may be entitled to a retrial under Hudson v. Louisiana , 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30(1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt.When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot.However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to a retrial, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial.If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal.SeeState v. Hearold , 603 So.2d 731, 734(La.1992).

A conviction based on insufficient evidence cannot stand as it violates Due Process.SeeU.S. Const. amend. XIV;La. Const. art. I, § 2.The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia , 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.SeeLa. Code Crim. P. art. 821(B);State v. Ordodi , 2006-0207(La.11/29/06), 946 So.2d 654, 660.In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded.La.R.S. 15:438;State v. Wright , 98-0601(La. App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895(La.11/17/00), 773 So.2d 732.

Pursuant to La.R.S. 14:202.1(A)(as in effect at the time of the offense), in pertinent part, residential contractor fraud is the misappropriation or intentional 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 by a person who has contracted to perform any home improvement or residential construction.Under the pertinent part of the statute, a misappropriation or intentional taking may be inferred when a person "[f]ails to perform any work during a...