Opinion
No. 2009 KA 0010.
September 11, 2009.
ON APPEAL FROM THE 23RD JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ASCENSION STATE OF LOUISIANA DISTRICT COURT NOS. 21509 AND 21510 THE HONORABLE RALPH TUREAU, JUDGE PRESIDING.
Ricky L. Babin, District Attorney Donald D. Candell, Assistant District Attorney, Gonzales, La., Counsel for Appellee State of Louisiana.
Jane L. Beebe, New Orleans, La., Counsel for Defendant/Appellant Jamilyn Janeik Brown.
BEFORE: CARTER, C.J., GUIDRY AND PETTIGREW, JJ.
The defendant, Jamilyn Janeik Brown, was charged by bill of information no. 21509 with theft valued over $500, a violation of La.R.S. 14:67, and by bill of information no. 21510 with attempted theft valued over $500, a violation of La.R.S. 14:27 and La.R.S. 14:67. The defendant entered a plea of not guilty to both charges. Following a jury trial, she was found guilty as charged under both bills of information.
Co-defendants, Rashard Poche and Jandrell Brown, also were charged by the same bills of information with the same charges. They were tried with the defendant but separately appeal from their convictions. See State v. Poche, 2009-0007 (La. App. 1 Cir. 9/11/09) (unpublished); State v. Brown, 2009-0008 (La. App. 1 Cir. 9/11/09) (unpublished).
On bill of information no. 21509, the defendant was sentenced to ten years at hard labor. On bill of information no. 21510, she was sentenced to five years at hard labor, to run concurrently with the sentence imposed on bill of information no. 21509. The defendant moved for reconsideration of the sentence imposed under bill of information no. 21509, but the motion was denied.
She now appeals, contending the evidence was insufficient to support the convictions under both bills of information; the sentence imposed under bill of information no. 21509 was excessive; and the sentence imposed under bill of information no. 21510 was illegal. For the following reasons, we affirm the conviction and sentence on bill of information no. 21509; affirm the conviction on bill of information no. 21510; amend the sentence on bill of information no. 21510; and affirm the sentence, as amended, on bill of information no. 21510.
FACTS
On March 17, 2007, Jonathan Whitehurst, asset protection coordinator for the Walmart in Prairieville, saw a man walking through the electronics department of the store and placing two plasma televisions into a shopping cart. The televisions werepriced at $748 and $378. The man bypassed the registers, ran past the door greeter, and ran out of the doors without paying. Whitehurst chased the man into the parking lot. After the man realized Whitehurst was chasing him, he "dumped" the televisions and began looking for a car, yelling: "[W]here'd you go[?]" A silver Kia with a paper license plate, its trunk open, and at least three occupants inside, drove toward the man. The man jumped into the back of the car, which proceeded south on Airline Highway.
Whitehurst reported the incident to the Ascension Parish Sheriff's Office, and a deputy arrived at the store. While Whitehurst and the deputy were reviewing surveillance video, a customer alerted them that her husband was talking to her on a cell phone and had information concerning the incident. The deputy spoke to the customer's husband and radioed the information to his dispatch.
According to Whitehurst, the store surveillance tapes indicated that, approximately one minute before the man jumped into the silver Kia, two black females loaded Magnalite pots and clothes into the same car and entered the vehicle. The women had just exited the Walmart with two sets of Magnalite pots and a large bag, after one of the women stood directly in front of the door greeter, blocking his view of the other woman. The surveillance tapes showed that, before exiting the store, the women put items from the clothing department into a large bag. The black male talked to the two black females when they were in the ladies-wear department with the Magnalite pots in their cart. After talking to the women, the black male went to the electronics department where Whitehurst first observed him. Before the women went to ladies-wear, they had been in house wares. They had entered the store with only a small bag. The surveillance tapes referenced by Whitehurst were played for the jury at trial.
Whitehurst identified the Walmart apprehension report concerning the incident with the televisions. The report listed the person apprehended as "Rashard Poche."
On March 17, 2007, Stephanie Rodrigue was employed as an asset protection coordinator for the Walmart in Gonzales. After speaking to Whitehurst on the telephone, she observed a black male walking near the televisions and saw a woman and a pregnant woman (whom she later learned was the defendant) putting a television into a shopping cart. The television was priced at $672. Rodrigue asked the women if they needed help, and the defendant stated, "[N]o," but asked where the layaway department was located. Rodrigue alerted her store manager and a detective in the store. The black male and the two black females left the store without the buggy and television, which were discovered in the candy department, approximately fifty feet from the doors.
The defendant's name is spelled more than one way in the record. We use the spelling appearing on the bills of information.
The police went to the Walmart in Gonzales after learning that the shoplifters in the silver Kia had been followed there after leaving the Walmart in Prairieville. When the police arrived, two white females, Michelle Hebert and Phyllis LaCoste, were in the Kia. The two black females and a black male already had fled the scene. Hebert and LaCoste indicated they were from Killona, Louisiana. Hebert claimed that she had been sleeping until one of the black females got into the car at the Walmart in Prairieville and yelled, "[G]o, go, go." The car contained two boxes of Magnalite pots and numerous items of clothing with the price tags attached. There were no receipts in the vehicle for any of the items, and none of the occupants provided any receipts.
The transcript mistakenly spells the name of the town as "Colona."
LaCoste identified the co-defendants in court as her "full brother," his girlfriend, and his girlfriend's sister. She indicated the co-defendants and her own girlfriend — Hebert — had been together at the Walmart in Prairieville. She claimed that the defendant and Jandrell needed to go to layaway and returned with two boxes of pots with pink stickers on them. LaCoste denied seeing any new clothes. She stated that Poche also went into the store. She testified that she picked up Poche after she heard hollering that someone was chasing him. LaCoste claimed she then drove for awhile with the co-defendants and Hebert and arrived at the Walmart in Gonzales. She indicated that Poche's girlfriend, who was pregnant, stated she had to use the bathroom and went into the store with her sister. She claimed Poche subsequently went into the store to check on his girlfriend.
LaCoste later testified that Poche was her brother "in [her] heart[,]" and she had known him for four or five months.
LaCoste conceded that she admitted a crack pipe found in the silver Kia belonged to her, but claimed she did so to protect Hebert's nursing career. She also conceded that she had served time for issuing worthless checks. She claimed shoplifting charges against her in 1992 and 1993 were thrown out because her then girlfriend had been the actual shoplifter. LaCoste acknowledged that she was on parole for three counts of armed robbery but claimed that she had just been hitchhiking with the actual robber. Additionally, LaCoste stated she was "bipolar manic depressant[.]"
Poche was apprehended at Terry's Exxon, across Airline Highway from the Walmart in Gonzales. His shirt had fresh fold marks and looked brand new. Poche did not provide any identification but indicated he was from Killona, Louisiana.
The two black females, Jandrell Brown and the defendant, were apprehended across the parking lot, in front of a Payless shoe store and Big Lots store, approximately seventy-five yards from the Walmart in Gonzales. Jandrell indicated that she, the defendant, Poche, Hebert, and LaCoste had all been together in the silver Kia at the Walmart in Prairieville and had left that Walmart and traveled to the Walmart in Gonzales.
Mark Anthony Boudreaux, Jr., the store manager of the Walmart in Gonzales on March 17, 2007, testified that when the pregnant woman was arrested, she stated, "I told you we shouldn't have come here and steal; they're nothing but a bunch of racists."
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the defendant argues her conviction under bill of information no. 21509 was based on insufficient evidence because: the merchandise she was alleged to have taken was worth less than $500; no Walmart employee identified the items allegedly stolen; no one identified her on the surveillance tape; and there was insufficient proof of her intent to steal the televisions. She also argues her conviction under bill of information no. 21510 was unsupported by any evidence of criminal activity.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Wright, 98-0601 (La. App. 1 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. In conducting this review, we also must be expresslymindful of Louisiana's circumstantial evidence test, which states in part, assuming every fact to be proved that the evidence tends to prove, in order to convict, every reasonable hypothesis of innocence is excluded. Wright, 730 So.2d at 486; see La.R.S. 15:438.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. Wright, 730 So.2d at 487. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La.R.S. 14:24. However, the defendant's mere presence at the scene is not enough to concern him in the crime. State v. Neal, 2000-0674 (La. 6/29/01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Only those persons who knowingly participate in the planning or execution of a crime may be said to be concerned in its commission, thus making them liable as principals. Neal, 796 So.2d at 659. A principal may be connected only to those crimes for which he has the requisite mental state. Neal, 796 So.2d at 659. It is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed; however in such a case, it is necessary that the principal actually be aware of the accomplice's intention. State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 ( per curiam).
In State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, the Louisiana Supreme Court set forth the following precepts for appellate review of circumstantial evidence in connection with review of the sufficiency of the evidence:
On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events." Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.
The jury is the ultimate factfinder of "whether a defendant proved his condition and whether the state negated that defense." The reviewing court "must not impinge on the jury's factfinding prerogative in a criminal case except to the extent necessary to guarantee constitutional due process."
Mitchell, 772 So.2d at 83 (citations omitted).
Further, the Mitchell Court cautioned:
"The actual trier of fact's rational credibility calls, evidence weighing, and inference drawing are preserved . . . by the admonition that the sufficiency inquiry does not require a court to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt." The reviewing court is not called upon to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Rather, the court must assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt. The reviewing court cannot substitute its idea of what the verdict should be for that of the jury. Finally, the "appellate court is constitutionally precluded from acting as a 'thirteenth juror' in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact."
Mitchell, 772 So.2d at 83 (citations omitted).
An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationallyrejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 ( per curiam).
Theft from Walmart in Prairieville
The defendant argues that there was insufficient evidence to support her conviction for theft, value $500 or more, from the Walmart in Prairieville because her theft of pots and clothing was valued less than $500. She also challenges the proof that the items stolen belonged to Walmart, the proof of her identity, and the proof of her intent to steal the televisions pushed into the parking lot by Poche. The defendant's arguments concerning insufficient proof of value and her intent to steal the televisions fail, however, if she was a principal to Poche's theft of the televisions, valued at $1126, from the Walmart in Prairieville. See State v. Coleman, 2002-0345 (La. App. 5 Cir. 9/18/02), 829 So.2d 468, 472 ("A principal to the crime of theft is held culpable for the entire value of the merchandise.").
In his appeal before this court, Poche does not challenge his conviction under bill of information no. 21509. Theft is completed upon the exercise of wrongful dominion or unauthorized control of the object of the theft whether or not the item is removed from the general area where it is kept. See State v. Bean, 2004-1527 (La. App. 1 Cir. 3/24/05), 899 So.2d 702, 710, writ granted on other grounds, 2005-1106 (La. 3/8/06), 925 So.2d 489, writ denied, 2005-1106 (La. 11/3/06), 940 So.2d 652.
Theft is the misappropriation or taking of anything of value that belongs to another, either without the consent of the other to the misappropriation, or by means of fraudulent conduct, practices, or representations. La.R.S. 14:67A. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. La.R.S. 14:67A.
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was aprincipal to the theft of the televisions from the Walmart in Prairieville. As noted below in our discussion of the proof of specific intent to commit theft from the Walmart in Gonzales, the State argued to the jury that the actions of the defendants at the Walmart in Prairieville and the Walmart in Gonzales had to be viewed together. The State also relied on the evidence indicating that the defendants had a relationship with each other and, together, went to and left from the Walmart in Prairieville and the Walmart in Gonzales after communicating with each other in both stores. Evidence at trial also indicated that Jandrell and the defendant loaded the items they had taken from the Walmart in Prairieville into their car. As Poche exited the store with the stolen televisions, the car in which they were riding (with the trunk still open) drove to the fleeing Poche, allowing him to escape from Whitehurst.
The defendant's claim that no Walmart employee identified the items allegedly stolen is without basis in the record. Whitehurst testified that he saw Poche place two plasma televisions from the electronics department of the Walmart in Prairieville into a shopping cart and then run out of the store without paying for the televisions. Whitehurst indicated he pursued Poche into the parking lot and recovered the televisions after Poche escaped.
We also reject the defendant's argument concerning lack of her identification on the surveillance tapes. Whitehurst discussed his review of the surveillance tapes and indicated, "you could see both of them walking around, putting things — both of them putting things into a large bag." Counsel for Jandrell and the defendant objected, arguing that the best evidence was the surveillance tapes themselves and that "[t]he jury can draw their own conclusion as to who may or may not have been in the video." The verdict rendered against the defendantindicates that the jury concluded that the pregnant black female depicted in the surveillance tapes was the defendant.
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was a principal to the theft from the Walmart in Prairieville.
Attempted theft from Walmart in Gonzales
The defendant also argues that there was insufficient evidence to support her conviction for attempted theft from the Walmart in Gonzales because all she did was leave items in a cart in the store.
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he actually would have accomplished his purpose. La.R.S. 14:27A. Mere preparation to commit a crime shall not be sufficient to constitute an attempt. La.R.S. 14:27B(1).
The essential elements of an attempt are an actual specific intent to commit the offense, and an overt act directed toward that end. State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. As applicable to the instant facts, the State had the initial burden of proving beyond a reasonable doubt that the defendant had the specific intent to take something of value that belonged to another, without the consent of the other, and that she intended to deprive the other permanently of the thing of value. Specific criminal intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminalconsequences to follow his act or failure to act. La.R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Ordodi, 946 So.2d at 661. The determination of whether specific intent exists is a fact question for the jury. Ordodi, 946 So.2d at 661.
Viewing the defendant's actions in the light most favorable to the prosecution, a rational trier of fact could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant had the requisite specific intent to commit a theft from the Walmart in Gonzales. The State argued to the jury that after the defendant and co-defendants were forced to leave the Walmart in Prairieville without the televisions taken from the store, they proceeded directly to the Walmart in Gonzales to steal a television. Just as they had done at the Walmart in Prairieville, they left LaCoste at the wheel of the car and went into the Walmart in Gonzales. Inside the store, the defendant and co-defendants went directly to the area where the televisions were located. Jandrell and the defendant loaded a shopping cart, later discovered abandoned fifty feet from the door, with another television. Evidence at trial indicated that the defendant and co-defendants had a relationship with each other and, together, went to and left from the Walmart in Prairieville and the Walmart in Gonzales after communicating with each other in both stores. Further, as the defendant was being arrested with Jandrell, the defendant was heard to state, "I told you we shouldn't have come here and steal; they're nothing but a bunch of racists." These circumstances support the jury's determination that the defendant specifically intended to commit theft of a television from the Walmart in Gonzales.
Having found that the defendant possessed the requisite specific intent to commit theft, we must now review whether sufficient evidence was presented toprove beyond a reasonable doubt to a rational juror that the defendant did, or omitted to do, an act "for the purpose of and tending directly toward the accomplishing of her object," sometimes referred to as an overt act. See La.R.S. 14:27A and Reporter's Comment (1950) thereto. The attempt statute itself makes a distinction between an action that is mere preparation, which is insufficient to support a finding of an attempt, and an action for the purpose of, and tending directly toward, accomplishing an object, which is an essential element of the attempt statute. Ordodi, 946 So.2d at 661-662. "Preparation" has been generally defined as the devising or arranging of the means necessary for the commission of the crime. Ordodi, 946 So.2d at 662.
The difference between mere preparation and an overt act is not precisely defined. The Comment to the attempt statute states "[t]he distinction between preparation and an overt act sufficient for an attempt is one of nearness and degree which defies concise definition, and which can best be approximated by an examination of the jurisprudence." See La.R.S. 14:27, Reporter's Comment (1950). Thus, a defendant's actions that are mere preparation and those that are an act for the purpose of and tending directly toward the accomplishing of an object may be understood to exist on a continuum. Ordodi, 946 So.2d at 662.
Where a defendant's actions fall on the continuum is a fact question for the jury or trier of fact. Ordodi, 946 So.2d at 662. In determining whether a defendant's action is an overt act that is an attempt, the totality of the facts and circumstances presented by each case must be evaluated. The overt act need not be the ultimate step toward, or the last possible act in, the consummation of the crime attempted. Ordodi, 946 So.2d at 662. The distinction between actions that are mere preparation and actions that constitute an overt act sufficient for attempt isone of degree and is dependent on the particular facts of each case. Ordodi, 946 So.2d at 661-662. Thus, the determination of a defendant's actions as being mere preparation or acts sufficient to constitute an attempt will be fact specific to each case. Ordodi, 946 So.2d at 662.
In making the factual determination where the actions of the defendant fell on the continuum between actions of mere preparation and actions for the purpose of and tending directly toward the accomplishing of her object, the jury found that the defendant had committed actions sufficient to constitute an attempt. In reviewing the evidence of the defendant's actions outlined above, we cannot say that the jury's determination is irrational under the facts and circumstances presented. Thus, we hold that a rational juror could find that the evidence proved beyond a reasonable doubt that the defendant committed an act for the purpose of and tending directly toward the accomplishing of theft.
After a thorough review of the record, we are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant had the specific intent to commit theft from the Walmart in Gonzales and committed an act for the purpose of and tending directly toward accomplishing her goal. The State's theory at trial was that the defendant and co-defendants worked as a shoplifting team and went to the Prairieville Walmart to steal pots, clothing, and televisions. When they were forced to leave the Walmart in Prairieville without the televisions, the group went to the Walmart in Gonzales to steal a television. The defense at trial was that there was no team of shoplifters in this case and that Jandrell and the defendant were unaware of any plan to steal the television from the PrairievilleWalmart. The verdict rendered against the defendant indicates that the jury rejected the defense theory and accepted the theory of the State. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in the instant case.
This assignment of error is without merit.
EXCESSIVE SENTENCE
In assignment of error number 2, the defendant argues the trial court gave no reason for imposing a maximum sentence of ten years under bill of information no. 21509 and that sentence was unconstitutionally excessive.
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La. Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. State v. Hurst, 99-2868 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. Hurst, 797 So.2d at 83. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Harper, 2007-0299 (La. App. 1 Cir. 9/5/07), 970 So.2d 592, 602, writ denied, 2007-1921 (La. 2/15/08), 976 So.2d 173.
Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Hurst, 970 So.2d at 83. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. Hurst, 970 So.2d at 83. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 797 So.2d at 83.
Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years; or may be fined not more than three thousand dollars; or both. La.R.S. 14:67B(1). Under bill of information no. 21509, the defendant was sentenced to ten years at hard labor.
In imposing sentence, the trial court noted: the defendant was twenty-eight years old; she was a third-felony offender; the court had ordered a pre-sentence investigation (PSI) and had received the PSI; the PSI recommended that, under bill of information no. 21509, the defendant be sentenced to ten years at hard labor. After thoroughly considering the report and the facts of the case, the court believed the defendant should be sentenced in accordance with the recommendation of the PSI. The PSI noted that the defendant had numerous arrests and convictions forsimilar offenses, and the instant offense was her third-felony conviction for theft of goods.
In this case, although the trial court did not list every aggravating and mitigating factor, we find the record indicates that the court considered the sentencing criteria, which support the sentence imposed, and did not manifestly abuse its discretion in imposing the sentence under bill of information no. 21509. See La. Code Crim. P. art. 894.1A(1) B(12). Further, the sentence imposed under bill of information no. 21509, was not grossly disproportionate to the severity of the offense and, thus, was not unconstitutionally excessive. The court also did not manifestly abuse its discretion in imposing a maximum sentence under bill of information no. 21509. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Miller, 96-2040 (La. App. 1 Cir. 11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459. This was a most serious offense because it was part of a pattern of thefts. Additionally, because the defendant and her accomplices targeted a busy store for their thefts, they created danger to the store personnel and the public during the commission of the offenses and during their flight to avoid capture. The defendant was a worst offender because she refused to stop committing thefts even though she had previously been arrested, convicted, and incarcerated for thefts and other offenses.
This assignment of error is without merit.
ILLEGAL SENTENCE
In assignment of error number 3, the defendant argues that the sentence imposed under bill of information no. 21510 was illegal. The defendant is correct.
On bill of information no. 21510, the defendant was sentenced to five years at hard labor, to run concurrently with the sentence imposed on bill of information no. 21509. Thus, the court imposed one-half of the maximum sentence provided for by La.R.S. 14:67B(1), in accordance with the general scheme of La.R.S. 14:27D(3). However, La.R.S. 14:27D(2) in pertinent part provides, "[i]f the offense so attempted is theft, and is punishable as a felony, he shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both." This court may, however, correct the illegal sentence by amendment on appeal, rather than by remand for resentencing, because the trial court attempted to impose the maximum legal sentence in this matter, and thus, no exercise of sentencing discretion is involved. See La. Code Crim. P. art. 882A; Miller, 703 So.2d at 701. Accordingly, the sentence imposed under bill of information no. 21510 is amended to one year at hard labor to run concurrently with the sentence imposed under bill of information no. 21509.