State v. Cunningham

77 So. 3d 477, 2011 La. App. LEXIS 1287, 2011 WL 5170301
CourtLouisiana Court of Appeal
DecidedNovember 2, 2011
DocketNo. 46,664-KA
StatusPublished
Cited by29 cases

This text of 77 So. 3d 477 (State v. Cunningham) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cunningham, 77 So. 3d 477, 2011 La. App. LEXIS 1287, 2011 WL 5170301 (La. Ct. App. 2011).

Opinion

MOORE, J.

1, Henry Earl Cunningham appeals his conviction and sentence on one count of bank fraud, La. R.S. 14:71.1. For the reasons expressed, we affirm.

Factual Background

Cunningham worked as a cab driver based at the casinos in Shreveport and Bossier City. He met and befriended his codefendant Shalondrea “Shea” Holmes in 2009 when he gave her a ride from Russell Road in Shreveport to one of the casinos. He gave her his cell phone number and, for weeks afterward, she called him regularly for rides to and from Sam’s Town or Eldorado. She normally paid cash, but on occasions she had none; she testified that she once paid him with a check. She admitted that she was living on Russell Road with her grandmother, Earline Thomas,1 and that she had once stolen Ms. Thomas’s checks and forged her signature on them. In fact, Ms. Holmes was on probation for this charge in 2009, but she did not disclose this fact to Cunningham.

On August 28, 2009, Ms. Holmes called Cunningham for a cab ride. She told him that she did not have any money for fare but that she did have some of her grandmother’s checks to pay him.2 She did not testify that she ever told him she had no authority to write checks on her grandmother’s account. However, she did tell him that she had no ID so Cunningham would have to cash the check at a Regions Bank. Ms. Holmes filled out the front of the check, making it payable to Cunningham in the amount of $415. In the memo line she wrote “Maintenance Work” and then signed Ms. L.Thomas’s name. She then told Cunningham to drive her to the Regions Bank branch on Viking Drive in Bossier City where he went in to cash the check. Because he did not have an account there, in addition to indorsing the back of the check, he had to present his driver’s license to the teller, who noted on the check the last four digits and expiration date of his license and his date of birth. The transaction was also recorded on digital camera. He received the $415 and returned to the car; according to Ms. Holmes, he kept $215 for himself and gave her the other $200.

A few days later, Ms. Thomas noticed that her account had been debited $415 for a check she did not sign and payable to a person she did not know, Henry Cunningham. She went to Regions Bank and filled out an affidavit that her check had been forged; her money was ultimately refunded. Ms. Thomas testified that her granddaughter had previously stolen her checks, and this time she asked her who Cunningham was, but Ms. Holmes said she did not know. Later, however, Ms. Holmes put her grandmother on the phone with Cunningham, who said he was sorry and “he did not know that they were not her checks.” Ms. Thomas added that she had never authorized Ms. Holmes to sign her cheeks.

Regions Bank forwarded to Bossier City police the check, Ms. Thomas’s affidavit and surveillance video images of Cunningham cashing the check on August 28. The bank’s security officer, Charles Upchurch, testified that at some point Cunningham called him but he could not recall the gist of the conversation.

RBossier City police obtained a warrant and arrested Cunningham on October 12, [480]*4802009. Detective Leander Matthews interviewed him at the police station. According to Det. Matthews, Cunningham said, “I know what this is all about. I’ve spoken with Chuck Upchurch on the telephone. I haven’t done anything wrong. The young lady that gave me the check was [Ms.] Holmes.”3 Cunningham then described how he and Ms. Holmes had become friends and he drove her around frequently, but he felt she was trying to “play” him by saying she had no money for fare, telling him she had some checks of her grandmother’s, and that he would have to cash one because she had no ID. Nevertheless, he cashed the check and split the proceeds with her; however, he “should have known something wasn’t quite right with the check.” On cross-examination, Det. Matthews testified that he also prepared an arrest warrant for Ms. Holmes, but that he called the judge and recommended a bond on her own recognizance.

Ms. Holmes testified as outlined above. She admitted than when Detective Matthews first asked her about the check, she lied to him, but later told the truth; she testified that her grandmother never asked her about the check, but when Ms. Thomas asked who Cunningham was, she denied knowing him. She admitted stealing checks twice from Ms. Thomas, and that the state would recommend leniency if she “testified good” against Cunningham.

14After a two-day trial in October 2010, a six-member jury found Cunningham guilty as charged of bank fraud, La. R.S. 14:71.1; motions for new trial and post verdict judgment of acquittal were denied. At sentencing in January 2011, the district court reviewed Cunningham’s PSI and found that he had seven prior felony convictions. The court therefore imposed the maximum sentence of 10 years at hard labor; a motion for reconsideration was denied. This appeal followed.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Cunningham urges the evidence was insufficient to convict him of bank fraud. Specifically, he argues the state failed to prove he had the specific intent to defraud the bank. He contends that it was Ms. Holmes who stole the check, wrote it out, forged Ms. Thomas’s signature, and told him to cash it because she had no ID; she never told him she lacked authority to issue the check to him; in light of his serious criminal history, he would never knowingly pass a stolen check. He also suggests that Ms. Holmes’s credibility was fatally impaired, and that his mere presence at the scene of her crime did not make him a principal to the offense. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427.

The state responds that viewed in the light most favorable to the prosecution, the evidence proved every essential element of the offense.

The standard of appellate review 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 beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its appreciation of the evidence for that of the fact finder. State [481]*481v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La.4/1/05), 898 So.2d 1219.

Specific intent may be inferred from the circumstances and actions of the defendant. State v. Spears,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Louisiana v. Brandy Shackelford
Louisiana Court of Appeal, 2020
State v. Allen
260 So. 3d 703 (Louisiana Court of Appeal, 2018)
State v. Nixon
254 So. 3d 1228 (Louisiana Court of Appeal, 2018)
State v. Austin
250 So. 3d 1147 (Louisiana Court of Appeal, 2018)
State v. Cousin
240 So. 3d 954 (Louisiana Court of Appeal, 2017)
State v. Breedlove
213 So. 3d 1195 (Louisiana Court of Appeal, 2017)
State v. Christopher
209 So. 3d 255 (Louisiana Court of Appeal, 2016)
State v. Johnston
198 So. 3d 151 (Louisiana Court of Appeal, 2016)
State v. Modique
186 So. 3d 283 (Louisiana Court of Appeal, 2016)
State v. Mizell
182 So. 3d 1082 (Louisiana Court of Appeal, 2015)
State v. Williams
178 So. 3d 1069 (Louisiana Court of Appeal, 2015)
State v. Anderson
147 So. 3d 313 (Louisiana Court of Appeal, 2014)
State v. Oliphant
137 So. 3d 142 (Louisiana Court of Appeal, 2014)
State v. Jackson
132 So. 3d 516 (Louisiana Court of Appeal, 2014)
State v. Jones
132 So. 3d 505 (Louisiana Court of Appeal, 2014)
State v. Sellers
128 So. 3d 1235 (Louisiana Court of Appeal, 2013)
State v. Dickson
124 So. 3d 1193 (Louisiana Court of Appeal, 2013)
State v. McCauley
122 So. 3d 596 (Louisiana Court of Appeal, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
77 So. 3d 477, 2011 La. App. LEXIS 1287, 2011 WL 5170301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cunningham-lactapp-2011.