State v. Trosclair

• Decision Date: 24 June 2020
• Docket Number: 19-833
• Citation: 299 So.3d 704
• Parties: STATE of Louisiana v. Grace TROSCLAIR
• Court: Court of Appeal of Louisiana — District of US

299 So.3d 704

STATE of Louisiana
v.
Grace TROSCLAIR

19-833

Court of Appeal of Louisiana, Third Circuit.

June 24, 2020

J. Rodney Baum, Louisiana Appellate Project, 830 Main Street, Baton Rouge, LA 70802, (225) 387-1142, COUNSEL FOR DEFENDANT/APPELLANT: Grace Trosclair

Jimmy D. White, Assistant District Attorney, Thirty-Fifth Judicial District, P.O. Box 309, Colfax, LA 71417, (318) 627-2971, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John E. Conery, and Van H. Kyzar, Judges.

KYZAR, Judge.

299 So.3d 707

Defendant, Grace Trosclair, was charged by bill of information filed on February 22, 2017, with theft having a value of $750.00 or more but less than $1500.00, a violation of La.R.S. 14:67.¹ She was accused of taking prescription medications from the home of the victim, Judy Longino, without her consent on January 31, 2016.² Trial by a six person jury commenced on March 18, 2019, and Defendant was found guilty as charged on March 20, 2019. On October 10, 2019, Defendant was sentenced to serve five years at hard labor with all but ninety days suspended. Upon release, Defendant is to be placed on three years supervised probation. She was also ordered to pay a fine of $1500.00, costs of court, $750.00 to the Grant Parish Indigent Defender Board, and restitution to Judy Longino in the amount of $750.00. A "Notice of Intent to Appeal" was filed on October 18, 2019.

Defendant is now before this court asserting three assignments of error: 1) the evidence was insufficient to support the verdict; 2) trial counsel was ineffective; and 3) review of the record for errors patent.

DISCUSSION

Sufficiency of the Evidence

In her first assignment of error, Defendant contends there was insufficient evidence to prove beyond a reasonable doubt that she committed a theft valued at more than $750.00 but less than $1500.00.

When the issue of sufficiency of evidence is raised on appeal, the reviewing court determines 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 v. Mussall , 523 So.2d 1305 (La.1988). Discretion in determinations of credibility is vested in the jury, which may accept or reject testimony within the bounds of rationality, and we will only impinge upon its discretion "to the extent necessary to guarantee the fundamental protection of due process of law." Mussall , 523 So.2d at 1310. Thus, other than ensuring the sufficiency evaluation standard of Jackson , "the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. State v. Ryan , 07-504, p. 2 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268, 1270 (quoting State v. Lambert , 97-64, p. 5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727 ).

However, the Jackson standard "does not permit the reviewing court to view just the evidence most favorable to the prosecution and then to decide whether

299 So.3d 708

that evidence convinced it beyond a reasonable doubt." Mussall , 523 So.2d at 1310. "Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency." State v. Allen , 36,180, p. 5 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, 626, writs denied , 02-2595 (La. 3/28/03), 840 So.2d 566, 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied , 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

State v. Thomas , 17-959, pp. 13-14 (La.App. 3 Cir. 9/26/18), 255 So.3d 1189, 1199, writs denied , 18-1757, 18-1662 (La. 4/22/19), 268 So.3d 294, 303.

Defendant was convicted of theft, defined in La.R.S. 14:67(A) as 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 is the subject of the misappropriation or taking is required. Id. "To support the conviction[ ], the State had to prove (1) a taking (2) of a thing of value (3) that belongs to another, (4) with the intent to permanently deprive the other of the thing." State v. Buteaux , 17-877, p. 13 (La.App. 3 Cir. 3/14/18), 241 So.3d 1094, 1102, writ denied , 18-600 (La. 10/15/18), 253 So.3d 1309.

While Defendant primarily argues the insufficiency of the evidence to support the grade of the offense here, theft greater than $750.00 but less than $1,500.00, challenging the State's proof of the value of the prescription medication allegedly taken, she argues generally and less specifically that the State failed to prove that she actually took any medications from the victim, Ms. Longino. As the conviction for theft, of whichever grade, actually hinges on this element of the offense, we address it first.

Judy Longino testified first for the State and indicated that she was retired and had worked at various adult and juvenile facilities as a correctional officer for many years. She stated that she had been diagnosed with "Spinal Spitz Tophus" with a herniated disc, had been wearing a back brace since 2012, and had been prescribed medications by her doctor. She was also diabetic and had a nerve condition for which she also took prescribed medications. She received help from Accessible Healthcare (Accessible), who sent a sitter to her home to assist her, beginning in 2013 or 2014. Defendant worked for Accessible and visited Ms. Longino's home as a company coordinator for Accessible in 2016 on approximately three occasions, including January 31, 2016. Amanda Bailey had been Ms. Longino's sitter and had been hired by Defendant for Accessible.

In January 2016, Ms. Longino's medications included hydrocodone, Valium, albuterol, "Asper," colchicine, Tanzeum, HCTZ, gabapentin, Spiriva, ProAir HFA, Ambien, "Beta lotions," and hydrochlorothiazide. Ms. Longino indicated that she had just received a three-month supply of her medications from Express Scripts, a mail order company, and Defendant and Bailey were at Ms. Longino's home when the medications arrived via UPS. Ms. Longino stated that she was given a prescription by her doctor for Valium and hydrocodone and that those prescriptions were filled by Ray's Pharmacy. She then testified that her Valium and all medications other than hydrocodone were delivered through Express Scripts. Ms. Longino testified that on January 31, Defendant informed her that she had to go through all Ms. Longino's

299 So.3d 709

medications and that some had to be put into a safe "at the job" because it was dangerous for Ms. Longino to keep that much medicine in her home. Defendant then went through the medications and put a portion of them in a grocery bag. While looking through the medications, Defendant commented that her mother used several of the same medications Ms. Longino did, specifically the inhalers.

Ms. Longino testified that the medications were usually kept in her bedroom on her dresser. If she had any medications "left over before she got a shipment in, [she] would put them up front, and then the 90 day one would go all the way to the back side of the dresser." She organized the medications by how she took them during the day. Ms. Longino explained that Defendant took the "30 day supplies," poured some into "what I had left over in the other one," and put the bottles into a grocery bag, which she could not see through. Ms. Longino explained that Defendant left a one or two weeks’ supply of her medications. She further testified that Defendant counted out the hydrocodone and told her it was too dangerous to have that much medication in her home at one time. Defendant left forty to forty-five of the hydrocodone of a supply of one hundred eighty and took the rest. Defendant subsequently left with the medications, saying she was taking them to the safe at Accessible's headquarters. Amanda Bailey, Ms. Longino's sitter, was in the bedroom when Defendant was taking the medications. Ms. Longino testified that Bailey "thought that that's what you were supposed to do with" the medications too. Ms. Longino never saw Bailey take any of the medications. She saw Defendant with the bag of medications in her hand when Defendant went out the door, and Defendant put the bag in her car. When asked if she gave Defendant permission to take the medication, Ms. Longino responded: "We had a piece of paper that she wrote down saying that she was taking the medication to the safe at the corporate office." The paper was signed by Ms. Longino, Defendant, and Bailey. Defendant did not give her a copy of the paper. However, Ms. Longino testified that she did not consent to Defendant taking her medication and not returning it, only that it be stored for safekeeping.

After the incident on January 31, Defendant returned to Ms. Longino's home and was asked for the medications. Ms. Longino stated that Defendant then told...