STATE OF LOUISIANA * NO. 2020-KA-0404
VERSUS * COURT OF APPEAL ALFRED JONES, JR * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 545-495, SECTION “G” Honorable Dennis Waldron, Judge ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
Leon Cannizzaro District Attorney Donna Andrieu Adele Krieger Assistant District Attorney Orleans Parish 619 S. White Street New Orleans, LA 70119
COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Sherry Watters Louisiana Appellate Project P. O. Box 58769 New Orleans, LA 70158
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
DECEMBER 9, 2020 RLB Alfred Jones, Jr. is challenging the sufficiency of the evidence in his JFM JCL conviction and sentence for identity theft. For the reasons that follow, the
conviction and sentence are affirmed.
Procedural History
On March 15, 2019, Mr. Jones was arrested for using a debit card that did
not belong to him without the owner’s consent. On May 1, 2019, the State filed a
bill of information charging Mr. Jones with identity theft by using the personal
identifying information of Jasmine Ducre with the intent to fraudulently obtain
goods and services from Rubensteins valued at five hundred dollars or more but
less than one thousand dollars, a violation of La. R.S. 14:67.16. Mr. Jones pled
not guilty and waived his right to a jury trial. A bench trial commenced on
November 20, 2019. On that date, Mr. Jones was found guilty as charged. Mr.
Jones was sentenced to three years in the department of corrections, suspended,
with two years active probation.1 He was ordered to pay restitution, court costs
and $100.00 to the indigent transcript fund of Section “G”. This appeal followed.
1 The defendant was informed that after a year he may be eligible for deferment under La. C.Cr.P. art. 893.
1 Assignment of Error
On appeal, Mr. Jones contends that there was insufficient evidence to
support his conviction and sentence. First, he maintains that the State failed to
prove the elements of identity theft beyond a reasonable doubt. In the alternative,
he argues that the State failed to establish that he fraudulently obtained goods
valued at five hundred dollars or more, but less than one thousand dollars from
Rubensteins.
Trial Testimony
At trial, the court heard testimony from Jasmine Ducre, Kenneth Rubenstein,
New Orleans Police Officer John Huntington, and Mr. Jones. Ms. Ducre testified
that she lost her debit card while visiting New Orleans on March 14, 2019. She
described the debit card as having a collage of photos of her and her family on the
front. After realizing her debit card had been lost, she became aware that it was
used at Rubensteins. She immediately called the store to report the unauthorized
use of her debit card. Ms. Ducre stated that she did not know Mr. Jones and did
not give him permission to use her debit card.
Kenneth Rubenstein, the owner of Rubensteins, testified that he was present
at the clothing store on March 15, 2019, and witnessed Mr. Jones shopping. Mr.
Rubenstein further stated that shortly after Mr. Jones paid for his purchase, Ms.
Ducre called to inform him that her debit card had been used at his store without
her authorization. Subsequently, Mr. Rubenstein discussed the purchase with the
sales associate and was informed that the employee did not request identification
from Mr. Jones when the debit card was used. At that time, Mr. Rubenstein called
the New Orleans Police Department to report the incident, and later called to
inform the police that Mr. Jones had returned to the store. During his testimony,
2 Mr. Rubenstein identified the receipt from Mr. Jones’ purchase of merchandise
totaling $645.00, before tax, and the last four digits of Ms. Ducre’s debit card.
Next, Officer Huntington from the New Orleans Police Department testified
that he responded to Mr. Rubenstein’s report that merchandise had been
fraudulently purchased at the clothing store. The officer further stated that when
Mr. Jones returned for the pants that he had left for alteration he was placed under
arrest. At the time of arrest, Mr. Jones was still in possession of Ms. Ducre’s debit
card.
Once Officer Huntington finished testifying, the State rested its case. Then,
the defense called Mr. Jones to testify. Mr. Jones admitted that he purchased the
items on March 15, 2019, with Ms. Ducre’s debit card. However, he further stated
that he thought he had obtained the card from Ms. Ducre. Mr. Jones explained that
a woman with a child offered to allow her debit card to be used for Mr. Jones’
purchase in return for cash. He also testified that the woman sought his help
because she was unable to access cash through her bank. Mr. Jones claimed that
he believed the woman and child looked like the people pictured on the debit card.
So, he proceeded to use the debit card for his purchase at Rubensteins. According
to Mr. Jones’ testimony, when he left the store, having purchased items totaling
approximately $700.00, he gave the woman $500.00 in cash, and she told him not
to worry about the additional $200.00.
On cross-examination, Mr. Jones admitted that Ms. Ducre had not given him
permission to use her debit card, testifying that the morning of trial was the first
time he had seen Ms. Ducre. However, he insisted that at the time he accepted the
debit card he believed that it was Ms. Ducre granting him the authority to use the
3 debit card. He further stated that he was surprised when he learned that the debit
card had been stolen. He continued to maintain that he had no fraudulent intent.
Discussion
When reviewing the sufficiency of the evidence to support a conviction,
Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Neal, 00-0674, (La.
6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.
1984)). Under the Jackson standard, an appellate court must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found that all of the elements of the offense had
been proven beyond a reasonable doubt. Id.; State v. Tate, 2001-1658, p. 4 (La.
5/20/03), 851 So.2d 921, 928. The reviewing court has to consider the record as a
whole, just as the rational trier of fact considers all of the evidence, and the actual
trier of fact is presumed to have acted rationally. State v. Mussall, 523 So.2d 1305,
1310 (La. 1988). “[A] 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.” State v. Smith, 600 So.2d 1319, 1324 (La. 1992) (citations omitted).
The crime of identity theft is defined as:
the intentional use, possession, transfer, or attempted use, with fraudulent intent, by any person of any personal identifying information of another person to obtain, possess, or transfer, whether contemporaneously or not, credit, money, goods, services, or any thing else of value without the authorization or consent of the other person.
La. R.S 14:67.16(B). Further, La. R.S. 14:67.16(A)(4)(f) explains that “personal
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA * NO. 2020-KA-0404
VERSUS * COURT OF APPEAL ALFRED JONES, JR * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 545-495, SECTION “G” Honorable Dennis Waldron, Judge ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
Leon Cannizzaro District Attorney Donna Andrieu Adele Krieger Assistant District Attorney Orleans Parish 619 S. White Street New Orleans, LA 70119
COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE
Sherry Watters Louisiana Appellate Project P. O. Box 58769 New Orleans, LA 70158
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
DECEMBER 9, 2020 RLB Alfred Jones, Jr. is challenging the sufficiency of the evidence in his JFM JCL conviction and sentence for identity theft. For the reasons that follow, the
conviction and sentence are affirmed.
Procedural History
On March 15, 2019, Mr. Jones was arrested for using a debit card that did
not belong to him without the owner’s consent. On May 1, 2019, the State filed a
bill of information charging Mr. Jones with identity theft by using the personal
identifying information of Jasmine Ducre with the intent to fraudulently obtain
goods and services from Rubensteins valued at five hundred dollars or more but
less than one thousand dollars, a violation of La. R.S. 14:67.16. Mr. Jones pled
not guilty and waived his right to a jury trial. A bench trial commenced on
November 20, 2019. On that date, Mr. Jones was found guilty as charged. Mr.
Jones was sentenced to three years in the department of corrections, suspended,
with two years active probation.1 He was ordered to pay restitution, court costs
and $100.00 to the indigent transcript fund of Section “G”. This appeal followed.
1 The defendant was informed that after a year he may be eligible for deferment under La. C.Cr.P. art. 893.
1 Assignment of Error
On appeal, Mr. Jones contends that there was insufficient evidence to
support his conviction and sentence. First, he maintains that the State failed to
prove the elements of identity theft beyond a reasonable doubt. In the alternative,
he argues that the State failed to establish that he fraudulently obtained goods
valued at five hundred dollars or more, but less than one thousand dollars from
Rubensteins.
Trial Testimony
At trial, the court heard testimony from Jasmine Ducre, Kenneth Rubenstein,
New Orleans Police Officer John Huntington, and Mr. Jones. Ms. Ducre testified
that she lost her debit card while visiting New Orleans on March 14, 2019. She
described the debit card as having a collage of photos of her and her family on the
front. After realizing her debit card had been lost, she became aware that it was
used at Rubensteins. She immediately called the store to report the unauthorized
use of her debit card. Ms. Ducre stated that she did not know Mr. Jones and did
not give him permission to use her debit card.
Kenneth Rubenstein, the owner of Rubensteins, testified that he was present
at the clothing store on March 15, 2019, and witnessed Mr. Jones shopping. Mr.
Rubenstein further stated that shortly after Mr. Jones paid for his purchase, Ms.
Ducre called to inform him that her debit card had been used at his store without
her authorization. Subsequently, Mr. Rubenstein discussed the purchase with the
sales associate and was informed that the employee did not request identification
from Mr. Jones when the debit card was used. At that time, Mr. Rubenstein called
the New Orleans Police Department to report the incident, and later called to
inform the police that Mr. Jones had returned to the store. During his testimony,
2 Mr. Rubenstein identified the receipt from Mr. Jones’ purchase of merchandise
totaling $645.00, before tax, and the last four digits of Ms. Ducre’s debit card.
Next, Officer Huntington from the New Orleans Police Department testified
that he responded to Mr. Rubenstein’s report that merchandise had been
fraudulently purchased at the clothing store. The officer further stated that when
Mr. Jones returned for the pants that he had left for alteration he was placed under
arrest. At the time of arrest, Mr. Jones was still in possession of Ms. Ducre’s debit
card.
Once Officer Huntington finished testifying, the State rested its case. Then,
the defense called Mr. Jones to testify. Mr. Jones admitted that he purchased the
items on March 15, 2019, with Ms. Ducre’s debit card. However, he further stated
that he thought he had obtained the card from Ms. Ducre. Mr. Jones explained that
a woman with a child offered to allow her debit card to be used for Mr. Jones’
purchase in return for cash. He also testified that the woman sought his help
because she was unable to access cash through her bank. Mr. Jones claimed that
he believed the woman and child looked like the people pictured on the debit card.
So, he proceeded to use the debit card for his purchase at Rubensteins. According
to Mr. Jones’ testimony, when he left the store, having purchased items totaling
approximately $700.00, he gave the woman $500.00 in cash, and she told him not
to worry about the additional $200.00.
On cross-examination, Mr. Jones admitted that Ms. Ducre had not given him
permission to use her debit card, testifying that the morning of trial was the first
time he had seen Ms. Ducre. However, he insisted that at the time he accepted the
debit card he believed that it was Ms. Ducre granting him the authority to use the
3 debit card. He further stated that he was surprised when he learned that the debit
card had been stolen. He continued to maintain that he had no fraudulent intent.
Discussion
When reviewing the sufficiency of the evidence to support a conviction,
Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Neal, 00-0674, (La.
6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.
1984)). Under the Jackson standard, an appellate court must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found that all of the elements of the offense had
been proven beyond a reasonable doubt. Id.; State v. Tate, 2001-1658, p. 4 (La.
5/20/03), 851 So.2d 921, 928. The reviewing court has to consider the record as a
whole, just as the rational trier of fact considers all of the evidence, and the actual
trier of fact is presumed to have acted rationally. State v. Mussall, 523 So.2d 1305,
1310 (La. 1988). “[A] 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.” State v. Smith, 600 So.2d 1319, 1324 (La. 1992) (citations omitted).
The crime of identity theft is defined as:
the intentional use, possession, transfer, or attempted use, with fraudulent intent, by any person of any personal identifying information of another person to obtain, possess, or transfer, whether contemporaneously or not, credit, money, goods, services, or any thing else of value without the authorization or consent of the other person.
La. R.S 14:67.16(B). Further, La. R.S. 14:67.16(A)(4)(f) explains that “personal
identifying information” includes an individual’s debit card number.
4 After hearing the testimony and closing arguments, the trial court found Mr.
Jones guilty as charged. On the record, the trial court expressed that he found Mr.
Jones’ account of events to be incredulous. The court stated that no reasonable
person would believe that a woman would offer a complete stranger the
authorization for a $700.00 withdrawal from her bank while only taking $500.00 in
return. The trial court, as the rational trier of fact, examined the totality of the
evidence, and concluded that Mr. Jones’ testimony regarding fraudulent intent
lacked credibility.
In this appeal, Mr. Jones contends that the State failed to prove that he used
Ms. Ducre’s debit card while “pretending” to be her. His argument seems to add
impersonation as an element of the crime of identity theft, which is contrary to the
language of the statute. As set forth in La. R.S. 14:67.16(B), the State had to prove
that Mr. Jones used “any [of Ms. Ducre’s] personal identifying information” with
fraudulent intent for his benefit without her consent. Personal identifying
information includes a debit card number. La. R.S. 14:67.16(A)(4)(f).
Alternatively, Mr. Jones maintains that the evidence was insufficient
to convict him of fraudulently obtaining goods valued at five hundred dollars or
more, but less than one thousand dollars. His rationale for this argument is that
although he purchased in excess of $500.00 in merchandise, he only possessed
$250.00 of merchandise when he left the store. The $395.00 pants that were
charged to Ms. Ducre’s debit card remained at Rubensteins.
Mr. Jones’ argument is inconsistent with case law. In State v. White, 404
So.2d 1202, 1204 (La. 1981), the defendant removed jewelry from a display case
without authority. After removing the jewelry, the defendant proceeded to conceal
the jewelry, but did not leave the store with the items. There, the court made clear
5 that the fact that the merchandise was not removed from the store does not govern
for purposes of determining whether a theft has taken place. What is necessary, is
for the perpetrator to have had “unauthorized control” of the object of the theft or
to exercise “wrongful dominion” over the merchandise. Id.; see also State v. Bean,
2004-1527, pp. 9-10 (La. App. 1 Cir. 3/24/05), 899 So.2d 702, 709, writ granted
on unrelated grounds, 2005-1106 (La. 3/8/06), 925 So.2d 489, and writ denied,
2005-1106 (La. 11/3/06), 940 So.2d 652 (merchandise does not necessarily have to
be taken from the store in order for a theft to take place).
Here, it is undisputed that Mr. Jones purchased the pants with Ms. Ducre’s
debit card, and requested alterations. The merchandise was fraudulently acquired
from Rubensteins through the sale and then Mr. Jones exercised his wrongful
ownership to obtain alterations. He clearly exercised “wrongful dominion” or
unauthorized control over the merchandise. Thus, the State sufficiently established
that the theft was in excess of five hundred dollars, but less than one thousand
dollars.
Conclusion
In accordance with the Jackson standard, this Court’s role is not to
determine credibility or re-weigh evidence. The record before this Court, viewed
in the light most favorable to the State, sufficiently establishes all necessary
elements to support Albert Jones, Jr.’s conviction and sentence for committing
identity theft by using the personal identifying information of Jasmine Ducre with
the intent to fraudulently obtain goods and services from Rubensteins valued at
five hundred dollars or more but less than one thousand dollars. Therefore, Alfred
Jones’ conviction and sentence are affirmed.