State v. Fluitt

482 So. 2d 906
CourtLouisiana Court of Appeal
DecidedJanuary 22, 1986
Docket17499-KA
StatusPublished
Cited by17 cases

This text of 482 So. 2d 906 (State v. Fluitt) 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. Fluitt, 482 So. 2d 906 (La. Ct. App. 1986).

Opinion

482 So.2d 906 (1986)

STATE of Louisiana, Appellee,
v.
Brenda Nell FLUITT, Appellant.

No. 17499-KA.

Court of Appeal of Louisiana, Second Circuit.

January 22, 1986.

*908 Dimos, Brown, Erskine, Burkett, & Smith by George Ross, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Don C. Burns, Dist. Atty., and Iley H. Evans, Asst. Dist. Atty., Columbia, for appellee.

Before JASPER E. JONES, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

The defendant, Brenda Nell Fluitt, appeals her convictions and sentences for attempted theft, theft, and forgery, setting forth numerous assignments of error in this factually complicated case. For the reasons set forth below we affirm defendant's convictions and sentences, vacating, however, that portion of defendant's sentence which orders restitution of the stolen funds as a condition of parole.

FACTS

On January 27, 1984 Charles Mullin, owner of the Mullin Wood Company, contacted the Caldwell Parish Sheriff's Office and reported that money had been illegaly taken from his business. Mullin's bank accounts were overdrawn, although the company's books showed substantial balances. Following an investigation, defendant was arrested, as were two wood haulers for the company, Glen Hall and Henry Green. Hall and Green subsequently testified against defendant.

Defendant had been the company's bookkeeper for 16 years. She was in charge of keeping the company's books and was paymaster. Mullin Wood Company is in the pulpwood business, buying wood from wood haulers and reselling it to Manville Corporation. In the day to day operation of the business, wood haulers delivered their loads to the company where it was weighed. The haulers were then issued scale tickets showing the amount of wood purchased by the company. On Friday of each week the scale tickets were exchanged for settlement checks for the wood purchased. Customarily, haulers could receive an advance against the amount ultimately due at the end of the week in order to make equipment repairs.

Mr. Mullin was absent from the business frequently during the day, and each morning he routinely signed a number of blank checks so that defendant could transact company business during the day. The investigation revealed that on numerous occasions the defendant paid her personal bills from the company account. Defendant *909 also developed schemes with Hall and Green whereby they were given advances when no wood was cut, or payments were made which were several hundred dollars more than was actually due. Hall and Green cashed the checks and divided the proceeds with the defendant.

On several occasions defendant made out checks to Booker Holoman, a wood hauler, knowing they would be cashed by Henry Green who forged the payee's endorsement. Booker Holoman never received any of the funds. On one occasion defendant also made three payments on a personal note of Glen Hall.

Following her arrest, several bills of information were filed charging the defendant with theft and forgery. Trial was held on January 21-25, 1985 and a unanimous jury found the defendant guilty of one count of attempted theft, not guilty of four counts of theft, guilty of seven counts of forgery and guilty of 173 counts of felony theft.

Following the verdict, the defendant filed a motion for post verdict judgment of acquital. On February 28, 1985, the trial judge ruled on that motion, in part denying the motion, in part modifying the verdict, and reduced the amounts taken on five counts of theft.

At sentencing, defendant was ordered to serve a six-month suspended sentence for attempted theft. On those offenses for which the defendant was found guilty of high grade felony theft, the defendant was sentenced to serve a term of imprisonment of five years at hard labor on each bill of information. Where defendant was found guilty of middle grade felony theft, she was sentenced to serve two years at hard labor on each bill of information. On the seven counts of forgery for which the defendant was found guilty, she was sentenced to serve five years at hard labor on each count.

All of these sentences which were imposed for attempted theft, theft and forgery were ordered to be served concurrently with each other.

The trial court also ordered that the defendant make restitution in the amount of $72,309 as a condition of parole should she become eligible for parole.

ASSIGNMENTS OF ERROR

Defendant appealed her convictions and sentences, setting forth numerous assignments of error. Assignments 1 through 6 urge that there was insufficient evidence upon which a reasonable trier of fact could find the defendant guilty of the offenses charged.

Assignment 7 urges that the defendant was prejudiced when the trial court admitted into evidence charts prepared by the district attorney reflecting the checks written by defendant.

Assignment No. 8 urges that the trial court erred in denying defendant's motion for post verdict judgment of acquittal by modifying the verdict and otherwise denying the motion.

Assignment No. 9 urges that the trial court imposed an excessive sentence in ordering the defendant to serve a six month suspended sentence for attempted theft.

Assignments 10 through 19 urge that the trial court imposed excessive sentences on the defendant on her convictions for felony theft and forgery.

Assignment No. 20 contends that the trial court erred in ordering the defendant to make restitution and urges this was also an excessive sentence.

SUFFICIENCY OF EVIDENCE

In considering the standard of review for sufficiency of evidence, the reviewing court must determine 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Nealy, 450 So.2d 634 (La.1984).

When circumstantial evidence is relied upon to obtain a conviction the court has explained in State v. Eason, 460 So.2d 1139 *910 (La.App. 2d Cir.1984), writ denied 463 So.2d 1317 (La.1985), the interaction of the Jackson standard with this state's statutory rule concerning circumstantial evidence as follows:

"The statutory rule as to circumstantial evidence is that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. This statutory rule is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever the state relies on circumstantial evidence to prove an element of the crime. State v. Wright, 445 So.2d 1198 (La.1984). Ultimately, the Jackson standard is the objective standard for testing the overall evidence, direct and circumstantial, for reasonable doubt. State v. Wright, supra; State v. Sutton, 436 So.2d 471 (La.1983). The statutory rule, however, provides an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. Exclusion of every reasonable hypothesis of innocence is, therefore, a component of the more comprehensive reasonable doubt standard, where circumstantial evidence is used to convict.

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Bluebook (online)
482 So. 2d 906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fluitt-lactapp-1986.