State v. Lacombe

• Decision Date: 09 December 2009
• Docket Number: No. 09-544.,09-544.
• Citation: 25 So.3d 1002
• Parties: STATE of Louisiana v. Cody LACOMBE.
• Court: Court of Appeal of Louisiana — District of US

25 So.3d 1002

STATE of Louisiana v. Cody LACOMBE.

No. 09-544.

Court of Appeal of Louisiana, Third Circuit.

December 9, 2009.

Earl B. Taylor, District Attorney, Twenty-Seventh Judicial District Court, Jennifer Ardoin, Assistant District Attorney, Twenty-Seventh Judicial District, Opelousas, LA, for Plaintiff/Appellee, State of Louisiana.

Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Cody LaCombe.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.

THIBODEAUX, Chief Judge.

Defendant, Cody LaCombe, appeals his jury conviction for unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4, on the basis of insufficiency of the evidence. The evidence is sufficient. We affirm.

LAW AND DISCUSSION

Defendant argues that while he may have been dilatory in his job performance, he did not possess the specific intent to take or use his employer's vehicle without consent or by means of fraudulent conduct. He argues that the State failed to submit any evidence that his absence with the vehicle was anything more than taking longer than necessary to complete the task assigned to him.

The unauthorized use of a motor vehicle is defined as, "[t]he intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently." La. R.S. 14:68.4.

When discussing sufficiency of evidence on appeal, this court has held:

"[T]he critical inquiry of the reviewing court is 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559, (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). The role of the factfinder is to weigh the respective credibility of each witness. Therefore, the appellate court should not second guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La. 1983)."

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ denied, 99-3259 (La.5/5/00), 761 So.2d 541.

The employer and victim in this case was Dirk LeBlanc who, at the time of the offense, was principal owner of Freight Lines Transportation and Brokerage, Inc. He hired Defendant as a truck driver on or about November 14, 2006. Defendant's first haul began on the same day. He was directed to drive the company's eighteen-wheeler to San Antonio, Texas, make stops in Dallas, then Waxahachie, and make a final delivery in Carencro, Louisiana on Friday morning. Mr. LeBlanc communicated with Defendant on Monday and Tuesday. On Wednesday and Thursday, Defendant did not answer his cell phone or call the company. On Thursday, Mr. LeBlanc filed a report with the Lafayette Parish Sheriff's Office, which was submitted into evidence as State's exhibit number 1. The report stated:

Driver (Cody J. LaCombe) was to deliver load from Waxahatchie, TX to Carencro, LA. Driver picked-up load but never delivered. He fueled up at 10:52 p.m. in Dallas TX 154 gallons. He fueled up again at 10:49 a.m. in Dallas, TX across the street from the first fueling, 213 gallons. The 18-wheeler can only hold approx. 180 gallons. Driver also has $1000.00 company check from the previous load he had hauled before this load. Can not find truck, trailer (loads), nor driver.

Defendant finally called Mr. LeBlanc on Sunday the 20th, stating that he needed fuel. Mr. LeBlanc explained that he had "cut off" the fuel card so Defendant had to call for authorization to fuel up the tractor. Mr. LeBlanc instructed him to go to King's Truck Stop and gave him an authorization code for enough fuel to get there. Mr. LeBlanc arranged for another driver to go to King's Truck Stop to take possession of the tractor and trailer and make the late delivery to Carencro.

When Defendant filled the tractor with fuel on Wednesday night, then again the following morning in the same area in Dallas, with more fuel than the tank could hold, the victim became nervous about the situation. Moreover, after the tractor and trailer were taken into custody, the odometer reading indicated an excess of seven hundred more miles. Mr. LeBlanc explained that the mileage of the routes was calculated using a "PC Miler." Mr. LeBlanc testified that Defendant was not authorized to go anywhere but the established route. He was not authorized to use the vehicle on either Saturday or Sunday.

Mr. LeBlanc testified that he never recovered from Defendant the one thousand dollar check issued to the company for transportation fees. All drivers are required to maintain a log book. No log book was found following Defendant's arrest.

Finally, Mr. LeBlanc testified that when Defendant called him Sunday morning, Defendant said he had been beaten up. Except for this last statement made by Defendant to Mr. LeBlanc, there was no explanation offered at trial as to Defendant's whereabouts or activities from Wednesday to Sunday.

Defendant argues that the facts of State v. Bias, 400 So.2d 650 (La.1981), are most analogous to the current case where the supreme court reversed a conviction for unauthorized use of a moveable, a violation of La. R.S. 14:68. In Bias, the defendant entered into a contract with a furniture store for the rental of a television for twenty dollars weekly. He defaulted. The supreme court stated:

R.S. 14:68 may be violated by a taking or use either without the consent of the owner or by means of fraudulent conduct, practices, or representations. Here, the state's theory must be either (1) that the "use" of the movable was without the owner's consent, when defendant discontinued paying rent, or (2) that the "use" was by means of fraudulent practices, when defendant kept the set without making the agreed payments. We decline to accept a theory that the mere failure to make rental payments as agreed constitutes a "use without consent" or a "use by fraudulent practices" for purposes of the statute.

. . . .

Affirmation of the conviction on the evidence in this record would require a holding that proof of breach of a rental agreement is alone sufficient to prove a "use without consent" or a "use by fraudulent practices, conduct, or representations." As stated before, we do not believe such a result was intended when the statute was enacted.

Perhaps the Legislature could enact a special criminal statute proscribing the failure to abide by the terms of a rental agreement. Nevertheless, we construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent, since the "evil" state of mind of the actor normally distinguishes criminal acts (punishable by the state alone) from mere civil wrongs (actionable by private individuals against one another). C.Cr.P. art. 381. In State v. Brown, 389 So.2d 48 (La.1980), a case in which we construed a statute prohibiting possession of certain controlled substances to require proof of criminal intent, we stated:

"(w)e observe the familiar proposition that `(t)he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). In a much cited passage from Morissette v. United States, 342 U.S. 246, 250-251, 72 S.Ct. 240, 243, 244, 96 L.Ed. 288 (1952), the United States Supreme Court observed:

`The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."'

"The `vicious will' has been replaced with less colorful descriptions of the mental state required for a criminal act; nevertheless, intent generally remains an indispensable element of a criminal offense." 389 So.2d at 50.

Finally, we note that the state may produce direct or circumstantial evidence of "fraudulent intent" in unauthorized use cases involving the initial acquisition of property by rental agreement. The evidence in this case, however, simply does not reasonably support the inference of fraudulent intent beyond a reasonable doubt.

Id. at 652-53.

Defendant argues that like Bias, the necessary criminal intent to distinguish a criminal act from a civil act is lacking. However, the State counters that State v. Varnado, 01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191, is more applicable to the current case. In Varnado, the fifth circuit affirmed the defendant's conviction for unauthorized use of a motor vehicle. The defendant was employed as a truck driver for a company that supplied workers for offshore work. On a Friday, the defendant was instructed to drive other employees to Cameron in a company car. The defendant left early in the morning, and later in the day called and said he would be back to the office...