State v. Folse

258 So. 3d 188
CourtLouisiana Court of Appeal
DecidedSeptember 21, 2018
DocketNO. 2018 KA 0153
StatusPublished
Cited by3 cases

This text of 258 So. 3d 188 (State v. Folse) 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. Folse, 258 So. 3d 188 (La. Ct. App. 2018).

Opinion

THERIOT, J.

*192The defendant, Tyrone Folse, was charged by bill of information in district court docket number 711282 with residential contractor fraud when the misappropriation or intentional taking amounts to a value of one thousand five hundred dollars or more, a violation of La. R.S. 14:202.1(C)(3) (prior to amendment by 2017 La. Acts, No. 281, § 1).1 2 He pled not guilty and, after a trial by jury, was found guilty as charged. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. The defendant was sentenced to five years imprisonment at hard labor and ordered to pay four thousand dollars of restitution within six months of his release, or in default thereof, to serve an additional two years imprisonment at hard labor. The trial court further ordered that the sentence be served consecutive to any other sentence. The defendant now appeals, assigning error to the trial court's denial of a challenge for cause to strike a juror, the admission of his pretrial statement, statements by the prosecution at trial, the constitutionality and legality of the sentence, and the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On January 7, 2015, Billy Burrow, Jr., the victim herein, entered into a contract with the defendant wherein the defendant agreed to install a privacy fence, consisting of a cyclone fence, around the backyard of his residence located at 127 Presque Isle in Houma. The defendant specifically agreed to install seventy-seven feet of wooden fencing at a height of six feet, using pine and two gates. The total contract price was $5,500.00, and Burrow paid the defendant $4,000.00 in cash up front as a down payment, for which the defendant provided him with a receipt. The remaining balance of $1,500.00 was to be paid upon completion of the job. According to Burrow, the defendant never completed the work and did not reimburse Burrow any portion of the $4,000.00 down payment.

ASSIGNMENTS OF ERROR

The defendant cites seven assignments of error:

1. The trial court erred in failing to strike Juror Shanida Kanach for cause since Ms. Kanach admitted to being unable to fully read and understand the English language.
2. The trial court erred in allowing the defendant's statement to be introduced over the objection of defense *193counsel since the state failed to read the defendant his Miranda3 rights prior to taking his statement.4
3. The trial court erred in failing to strike prejudicial statements made by the prosecution and failed to give an order for the jury to disregard the same.
4. The trial court's sentence of five (5) years on each count to be served consecutively is grossly disproportionate, excessive, cruel, and unusual.
5. The trial court erred in failing to grant the defendant's motion for a new trial since the evidence was not sufficient to uphold a conviction. The state failed to prove each and every element of the offense charged.
6. The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.
7. The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number five, the defendant argues that evidence was not sufficient to uphold the conviction. Thus, he asserts in assignment of error number five that the trial court should have granted his motion for new trial. As to each of the three cases, the defendant argues that the State failed to prove the element of "greater than $1,500.00" as well as whether no work was done after receiving payment. He argues that the State's assertion at trial that any forty-five day period of no work was sufficient to constitute a violation of La. R.S. 14:202.1 is a misreading of the statute. In that regard, he argues that the statute is clear and unambiguous in that the legislative intent is to charge a defendant if zero work is done on the contract. He concludes that as to each contract, a lot of work was done on each parcel of property that he entered into a contract to make improvements thereto.5

As to the instant offense involving the contract with Burrow, the defendant claims that Burrow paid him $4,000.00 out of a total contract price of $5,500.00. The defendant claims that eighty percent of the work was completed at a value of $4,400.00 dollars. The defendant contends that Burrow admitted that some of the work was completed but testified that numerous issues arose between him and the defendant that he wanted corrected.

When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to a retrial under Hudson v. Louisiana , 450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. When the entirety of the evidence *194is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to a retrial, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the reviewing court determines that there has been trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support the conviction, then the accused will be granted a new trial, but is not entitled to an acquittal. See State v. Hearold

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Cite This Page — Counsel Stack

Bluebook (online)
258 So. 3d 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-folse-lactapp-2018.