Opinion
No. 96-KA-0951.
March 5, 1997.
APPEAL FROM THE CRIMINAL DISTRICT COURT, ORLEANS PARISH, NO. 380-430, STATE OF LOUISIANA, HONORABLE LEON A. CANNIZZARO, J.
Harry F. Connick, District Attorney of Orleans Parish, Susan M. Erlanger, Assistant District Attorney of Orleans Parish, New Orleans, for Appellee.
Archie B. Creech, Orleans Indigent Defender Program, New Orleans, for Defendant.
Before BYRNES, JONES and LANDRIEU, JJ.
The State charged Desmond G. Harris with theft of items valued between one hundred dollars and five hundred dollars. After he pleaded not guilty a jury found him guilty as charged. The trial judge sentenced Harris to two years at hard labor. The State then filed a multiple bill, and the trial judge found Harris to be a second offender, vacated his original sentence, and resentenced him to two years at hard labor.
Harris was charged with burglary in a separate case and was sentenced to six years at hard labor. The sentence for the theft charge is to run consecutively to the sentence for the burglary charge.
STATEMENT OF THE FACTS
Shortly after 9:00 a.m. on November 3, 1995, Linda Jones went to work at the Community Service Center at 4000 Magazine Street. She put her purse in a closet behind her desk which was in the office where clients, including Harris, were sitting. Ms. Jones testified that she recognized Harris because she did the "intake" on him the day before. She further stated that the clients then went downstairs for a group session and that she stayed in the office until just before 11:00 a.m. While she and her boss were out of the office, two of her coworkers found her and asked if she had her purse with her. When she told them that she did not, they said that was what Harris had taken. Ms. Jones testified that she paid $40.00 for the purse, which was black leather, and that the purse contained some change, her home, office and car keys, a wallet worth approximately $25.00, a Visa card, her driver's license, a checkbook and checkbook cover, and a child support check made out to her in the amount of $161.50.
Deontrenise Gibson testified that she was with Harris at the group session and that fifteen minutes before the session was over, the group director allowed some people, including Harris, to go back upstairs to get vouchers for shelter or other things they might need. Ms. Gibson, who did not go upstairs, said that as she left the session she heard a rumble from upstairs and then saw Harris run down the stairs with a black purse tucked under his left arm. Paula Kennedy also saw Harris run down the stairs, but she did not see a purse.
We have reviewed the record and find no errors patent.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, Harris complains that the State failed to present sufficient evidence to prove his guilt beyond a reasonable doubt, particularly the evidence that the value of the things taken from Ms. Jones was greater than one hundred dollars. He argues that the check for $161.50 in the stolen purse had no value other than to the victim because the check was made out only to her. He also argues that the cost to Ms. Jones of changing her locks and placing stop payment orders on her checks should not be included in calculating the value of the stolen items. He asks that a guilty verdict of misdemeanor theft be entered instead. This assignment of error has merit.
The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rosiere, 488 So.2d 965 (La. 1986). The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution. If rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La. 1988). Additionally, the reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Id.
La.Rev.Stat. § 14:67 defines theft, as it applies in the present case, as the misappropriation or taking of anything of value which belongs to another, without the consent of the other to the misappropriation or the taking. The value of the thing or things taken determines the sentence to be imposed, and consequently, whether the offense is a felony or a misdemeanor. La.Rev.Stat. § 14:67(B); La.Rev.Stat. § 14:2(4).
La.Rev.Stat. § 14:2(2) provides:
"Anything of value" must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable, corporeal or, incorporeal, public or private, and including transportation, telephone and telegraph services, or any other service available for hire. It must be construed in the broad popular sense of the phrase, not necessarily as synonymous with the traditional legal term "property." In all cases involving shoplifting the term "value" is the actual retail price of the property at the time of the offense.
In this case, apparently the State simply used the face value of the check to charge Harris with the middle grade of the offense of theft — when the theft amounts to a value between one hundred and five hundred dollars. The jury also likely used the same amount in finding Harris guilty as charged. This was a mistake.
When a check is stolen, ordinarily its value will not be its face value because the check merely represents an order to pay the stated amount to the named payee. The check, of course, is not the actual funds. Crucial to our finding is the particular facts of this case — that the check was made out only to Ms. Jones, it had not been endorsed in blank or to bearer, and Harris had not forged Ms. Jones's signature nor cashed the check.
To convict a person of theft of $100.00 or more, the State must prove that the value of the thing or things misappropriated equaled or exceeded $100.00. Value in that context can only mean market or objective value at the time of the taking. Surely it cannot mean subjective, sentimental, psychic, speculative, or potential value. The same, of course, is not true for theft under $100.00. There, value is anything of value as defined by La.Rev.Stat. 14:2(2) and includes any conceivable thing of the slightest value.
Under La.Rev.Stat. 14:67(A), "[a]n intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential." Harris intended to permanently deprive Ms. Jones of the check, but it cannot be said that he intended to deprive her of $161.50. The same would be true of a credit card or savings passbook, both of which could provide the basis of theft under $100.00. However, neither the credit line nor the amount on deposit could be used to charge a higher grade of theft because each exceeded $100.00. We therefore find that the face amount of the check cannot be used to calculate the value of items stolen in this case.
Likewise, the cost to Ms. Jones of changing her locks and placing stop payment orders on her checks cannot be considered as part of the value of the items stolen from her.
The rest of the testimony elicited by the State from Ms. Jones on the value of her stolen property was insufficient to support a rational inference by the jury that the value of the stolen property was between one hundred and five hundred dollars. The most that Harris could have been found guilty of is misdemeanor theft, La.Rev.Stat. § 14:67B(1).
ASSIGNMENTS OF ERROR NOS. 2, 3 AND 4
In these assignments of error, Harris complains that the trial court erred in allowing the State to introduce irrelevant evidence, namely his attitude and behavior at the group session and the costs to the victim of replacing her locks and stopping payment on her checks. He argues that the testimony of Paula Kennedy and Deontrenise Gibson, who stated that he was rude and annoying and slept at the group session, was introduced solely to portray him as a bad person. He further argues that the evidence of Ms. Jones's expenses for having her locks replaced and for stopping payment on her checks was irrelevant to the question of the value of the property taken.
Although the heading in the brief refers to Assignments of Error Nos. 2 and 3 only, the body of the argument encompasses Assignment of Error No. 4 as well.
La. Code Evid. art. 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. However, even if the evidence is relevant, it can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
Ms. Jones's testimony on the expenses she incurred in having her locks changed and stopping payment on her checks is only marginally relevant evidence. As discussed above, it is not relevant to prove an essential element of the offense. As victim impact testimony, such testimony as it relates to the emotional impact of the crime on the victim is of low probative value with no actual impact on the jury's verdict. See State v. Prestridge, 399 So.2d 564 (La. 1981); State v. Carr, 530 So.2d 579 (La.App. 1st Cir.), writ denied, 533 So.2d 354 (La. 1988), cert. denied Carr v. Louisiana, 489 U.S. 1098, 109 S.Ct. 1573, 103 L.Ed.2d 939 (1989). Nevertheless, because we are reducing Harris's conviction to that of a lesser offense, whether the testimony regarding the financial impact of the theft of the purse was irrelevant and could have influenced the jury's verdict is of no moment.
Furthermore, we find that the trial court erred in allowing Ms. Kennedy and Ms. Gibson to testify about Harris's behavior at the group counseling session. This testimony is not relevant under La. Code Evid. art. 404(A)(1), which provides that evidence of a pertinent trait of the accused's character may be offered by him or by the prosecution to rebut the accused's character evidence. Because Harris never put his character at issue, the State could not introduce evidence that he was rude and annoying. It is unclear what the testimony that he slept at the group session was intended to prove.
The introduction of this irrelevant testimony, however, was harmless error. In order for an error to be harmless, it must be shown beyond a reasonable doubt that the complained-of error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The guilty verdict actually rendered in the trial must be unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). Considering the evidence of Harris's guilt, namely that Ms. Gibson saw him fleeing the scene with a purse tucked under his arm, the brief testimony regarding his behavior and attitude did not contribute to the guilty verdict. These assignments of error are without merit.
Accordingly, finding no basis for a rational fact-finder to convict Harris of theft of items valued between one hundred and five hundred dollars, we vacate the jury verdict and the trial court's judgment in accordance therewith, and we substitute a verdict finding Harris guilty of misdemeanor theft. We vacate Harris's sentence and remand for resentencing under the lesser offense in conformity with this opinion.
VACATED AND REMANDED .
BYRNES, J., dissents with reasons.
I respectfully dissent.
The majority would reverse the conviction for insufficient evidence of theft of items valued between one hundred dollars and five hundred dollars based on the finding that the face amount of the check could not be used, and the victim's cost of changing her locks and placing stop payment orders on her checks could not be considered as part of the value of the items stolen by her.
In State v. Lay, 93 1063 (La.App. 1 Cir. 5/20/94), 637 So.2d 801, writ denied 94-2525 (La. 10/16/96), 680 So.2d 669, the appellate court found sufficient evidence of possession of a stolen thing valued at $100 or more, but less than $500 in violation of La.R.S. 14:69 based on the face value of a Louisiana income tax refund check which the defendant unsuccessfully attempted to cash. In that case the check had the face value of $205 without a showing of whether the check had been endorsed.
The defendant approached an employee in the rear of a mini-market and attempted to cash the State refund check in the amount of $205. When the defendant did not have any identification, the employee told the defendant that he would have to bring the check to the front of the store for approval before it could be cashed. The defendant went to the front of the store but the second employee refused to cash the check since she knew the defendant's name was Richard Lay and the name of the payee on the check was Terrell. She informed the defendant that Mr. Terrell would have to bring the check into the store himself with some form of identification. At this point, the defendant said nothing but left the store with the check. The Terrells were contacted, and the defendant's arrest and conviction followed.
In State v. Finley, 520 So.2d 1020 (La.App. 3 Cir. 1988), writ denied 524 So.2d 516 (La. 1988), the appellate court found that there was sufficient evidence of theft of property having a value of over $500 based on the aggregate amount of checks and cash which were in a stolen purse. In not allocating the amount of the checks and cash, the appellate court did not distinguish the two but found that: "The State presented evidence of all elements of the charged crime. Namely, they showed there was a misappropriation or taking of a purse containing $4,200.00 belonging to Mrs. Cashio [the victim] and it was done with the intent to deprive Mrs. Cashio permanently of the purse." Id., 520 So.2d at 1022.
The victim had just completed a bank deposit totalling $4,200 in cash and checks, had placed the deposit in her purse, and then put the purse on a chair in the office. The co-defendant took the purse while Finley diverted the victim's attention by purchasing a product for 99 cents.
In State v. Nguyen, 584 So.2d 256 (La.App. 4 Cir. 1991), writ denied, 589 So.2d 1054 (La. 1991), the defendant was convicted of theft by switching price tags on various garments. This court affirmed the conviction and noted that the evidence of the price tag switching showed that the defendant attempted to deprive the store (the victim) of the value of its merchandise.
In the present case, the defendant's theft of the victim's $161.50 State check deprived her of the value of that check. The value of the items stolen correctly included the face amount of the check because that was the check's value to the victim.
Under 18 U.S.C. § 2311, the National Stolen Property Act, the federal statute defines value as "face, par or market value, whichever is the greatest."
In State v. Long, 2 Neb. App. 847, 850, 516 N.W.2d 273, 275 (Neb. App. 1994), the Nebraska appellate court found that: "The issue of the value of stolen checks for grading-of-theft purposes in a jury trial appears to be one of first impression in Nebraska." That court provided an analysis, including cases from various states. The Court stated that:
. . . Long [The defendant] argues that the face amount of the checks is not proof of the value of the property involved is worth more than $500, primarily because the checks could not be negotiated by Long or might be based on insufficient funds.
Id.
In a related area the Court noted that Nebraska grades insufficient-fund checks based on the face amount of the checks under its statute, Neb.Rev.Stat. Sec. 28-611 (Cum.Supp. 1992). Similarly, under La.R.S. 14:71, "issuing worthless checks", Sections C, D, F, and G of the statute provide the graded sentences based on the face amount of the check or checks issued.
In Long, id., The Appellate Court of Nebraska concluded:
After thoroughly reviewing the literature in this area, we agree with the majority view from other jurisdictions that in a theft case, in the absence of a specific statutory directive determining value, the face amount of a stolen check which has been accepted in commerce is the value of the property stolen. E.g., Jeffcoat v. U.S., 551 A.2d 1301 (D.C. 1988); State v. Pacheco, 636 P.2d 489 (Utah 1981); People v. Marques, 184 Colo. 262, 520 P.2d 113 (1974); State v. McClellan, 82 Vt. 361, 73 A. 993 (1909). See, also, 52A C.J.S. Larceny Sec. 60(2) b. (1968). The courts in these cases reason that the instruments were valued by their rightful owners in the face amount of the checks, thus establishing value. The courts have generally held that the face amount of a stolen check is its value, notwithstanding a restrictive endorsement such as "For deposit only." People v. Marques, supra. The courts elsewhere have further held that the face amount of a check at the time of the theft is its value, notwithstanding a subsequent stop-payment order imposed by the bank at the victim's direction. Jeffcoat v. U.S., supra. We are aware of a minority view, found primarily in Texas cases such as Cooper v. State, 509 S.W.2d 865 (Tex.Crim. App. 1974), which would require proof of the sufficiency of funds in the maker's account to determine the value of a stolen check, and we find these cases unpersuasive. Id.
In the present case the victim stated that the $161.50 was a State check for child support. From that testimony it can be concluded that the check had sufficient funds. However, I agree with the holding of Long, supra, which did not base the value of the check on whether or not it might be based on insufficient funds, but based the value on the face amount of the check.
Although arguably a check is only made payable to the payee/payees, and has no value to anyone else, it still has value for that payee or those payees and is not worthless to everyone. In the present case, in taking the purse, the perpetrator specifically intended to permanently deprive the victim of her purse and its contents. The value of the contents is not what the perpetrator could obtain, but is the value that the victim had in it, including the face value of the stolen check.
In the present case the majority also found that the trial court erred in allowing the victim to testify about the cost of changing her locks and placing a stop payment order on her check. However, BLACK'S LAW DICTIONARY, 1551 (6th ed. 1990), states that:
Value as it relates to stolen property is the market value at the time and place of the taking, or, in case of property without a market value, the cost of replacing it.
Therefore, I would find that it was proper for the victim to provide testimony about the cost of replacing her locks and placing the stop payment order under La.R.S. 14:2(2), which provides in pertinent part:
Although the testimony of the costs incurred was relevant and admissible, the face value of the stolen check by itself equaled an amount greater than one hundred dollars and less than five hundred dollars.
"Anything of value" must be given the broadest possible construction, including any conceivable thing of the slightest value. . . . .
Furthermore, the majority found harmless error where the trial court erred in allowing two other witnesses to testify about the defendant's behavior at the group counseling session. The trial transcript shows that the trial court considered that the testimony was admissible under the doctrine of res gestae where one witness said the defendant slept through the group session and annoyed her and others.
La.C.E. art. 801(D)(4).
The doctrine of res gestae includes not only spontaneous utterances and declarations made before and after the commission of the crime, but also the testimony of witnesses and police officers pertaining to what they heard or observed before, during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Crawford, 95-1352 (La.App. 3 Cir. 4/3/96), 672 So.2d 197, writ denied, 96-1126 (La. 10/4/96), 679 So.2d 1379.
In the present case, besides the testimony of the victim, the testimony of Paul Kennedy and Deontrenise Gibson was part of the continuous chain of events placing the defendant at the Community Service Center and the commission of the crime. Both of these witnesses' testimony with respect to the group session showed that the defendant stood out in their memory and showed the reason why the two witnesses had the ability to clearly remember the defendant and to identify the defendant when they later saw him running down the stairs. I agree with the trial court that the testimony of Ms. Kennedy and Ms. Gibson was admissible under the res gestae exception.
Accordingly, I would affirm the defendant's conviction.