State v. Jolly

768 So. 2d 165, 0 La.App. 5 Cir. 181, 2000 La. App. LEXIS 1852, 2000 WL 1021278
CourtLouisiana Court of Appeal
DecidedJuly 25, 2000
DocketNo. 00-KA-181
StatusPublished
Cited by4 cases

This text of 768 So. 2d 165 (State v. Jolly) 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. Jolly, 768 So. 2d 165, 0 La.App. 5 Cir. 181, 2000 La. App. LEXIS 1852, 2000 WL 1021278 (La. Ct. App. 2000).

Opinion

JjPUFRESNE, Judge.

The Jefferson Parish District Attorney-filed a bill of information charging the defendant, Lawrence E. Jolly, with theft of goods valued between $100 and $500, a violation of LSA-R.S. 14:67.10. The matter proceeded to trial before a six person jury, at the conclusion of which the defendant was found guilty as charged. As a result of this conviction, the trial court sentenced the defendant to two years at hard labor.

The state then filed a bill of information seeking to have the defendant adjudicated and sentenced as a multiple offender pursuant to the provisions of LSA-R.S. 15:529.1. Following a hearing, the trial court found the defendant to be a fourth felony offender, vacated the defendant’s original sentence, and sentenced him to thirty years at hard labor. The defendant now appeals.

FACTS

This case involves a theft of merchandise at the K-Mart store located on South Clearview Parkway in Metairie.

LOn March 22, 1998, the defendant entered the K-Mart store and proceeded towards the electronics department. Mr. Joseph Talbot, the loss control manager, recognized the defendant as an individual he observed in the store several days earlier acting suspiciously. At this time, Mr. Talbot requested the loss control associate, Mr. Nolan Franz, to follow the defendant. Mr. Franz saw the defendant go into the electronics department and place a thirteen inch color television into his basket. Mr. Franz then followed the defendant to the home appliances department of the store where he observed the defendant place a CD player into his basket. Mr. Franz continued to follow the defendant. He saw the defendant spend a few minutes surveying the exits. The defendant then exited the store with the goods, without paying for the merchandise.

Mr. Talbot and Mr. Franz apprehended the defendant outside the store. Both men testified that the defendant surrendered without resistance. The defendant signed an admission of guilt form and told the men he was taking the items for his girlfriend. The Jefferson Parish Sheriffs Office was called, and Deputy Derrick McGee arrested the defendant. At trial, the value of the merchandise was established to be $269.98.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, the defendant argues that the trial court erred by allowing inadmissible evidence of other acts committed by the defendant. He specifically complains about Mr. Talbot’s testimony regarding the defendant’s presence and actions in the store on March 17, 1998.

| ¡¡Prior to the commencement of trial, the state expressed its intent to introduce through the testimony of Mr. Talbot that the defendant, on March 17, 1998, was in the store acting suspiciously, and in fact, attempted to take some property, although he did not actually commit a theft at that time. The defendant responded that he did not have an objection to testimony that he was in the store days before the incident; however, he did object to that portion of the testimony which alluded to the fact that he attempted to commit a crime. In response, the state asserted that it was not introducing the evidence to show that the defendant acted in a wrong manner or has bad character, but rather to show the defendant’s system and intent.

The trial court agreed with the state and allowed the introduction of the evidence at trial as to the defendant’s specific actions in the store on March 17, 1998. Specifically, at trial, Mr. Talbot testified that he first saw the defendant in the electronics department of the store on March 17,1998. Mr. Talbot observed the defendant place a VCR and a vacuum cleaner in his shopping cart, exit the electronics department, and head to the front of the store where he stopped and looked around. According to Mr. Talbot, after several minutes of ob[169]*169serving K-Mart employees in front of the exit door, the defendant exited the store •without the merchandise. The defendant now complains that the trial court erred in allowing this testimony.

Generally, evidence of other acts of misconduct is inadmissible at trial. However, when such evidence tends to prove a material issue and has independent relevance other than showing the defendant’s bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule. State v. Jackson, 625 So.2d 146 (La.1993);4 State v. Cangelosi, 98-589 (La.App. 5 Cir. 11/25/98), 722 So.2d 1107.

Evidence of other acts is allowed to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, ... or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” LSA-C.E. art. 404 B(l). One of these factors must be at issue, have some independent relevance, or be an element of the crime charged in order for the other evidence to be admissible. State v. Cangelosi, supra. Moreover, the probative value of the other crimes evidence must outweigh its prejudicial effect. State v. Kahey, 436 So.2d 475 (La.1983).

In the present case, the defendant was charged with theft of goods valued at between $100.00 and $500.00. An essential element of this offense is the “intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking.” LSA-R.S. 14:67.10. The defendant’s intent at the time of his actions on March 22, 1998 was a contested issue at trial which the state bore the burden to prove. Accordingly, we find that the testimony regarding the defendant’s actions in the store on March 17, 1998 was properly admissible to show intent. In addition, this testimony was also properly admissible to show that the defendant’s actions were not the result of mistake or accident.

Moreover, even if the trial court had erroneously admitted this evidence, the improper admission of other crimes evidence is subject to harmless error review. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, writ denied, 94-1379 (La.4/8/96), 671 So.2d 332. Harmless error exists where the guilty verdict actually rendered at trial was surely Isunattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. Cangelosi, supra. In the present case, the loss control employees at K-Mart witnessed the defendant put the items in his cart and walk out of the store without paying for the merchandise. Moreover, the defendant signed an admission of guilt and said that he took the items for his girlfriend. Given these factors, any error in the admission of the complained of testimony can be deemed harmless.

Based on the foregoing discussion, we find this assigned error to be without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, the defendant contends that the trial court erred by failing to grant him an evidentia-ry hearing on his motion to suppress and by admitting an inculpatory statement at trial.

Prior to trial, the defendant filed a motion to suppress the statement he made to Mr. Franz. The trial court denied this request, finding that, because Mr. Franz was not a state actor, a motion to suppress did not lie. On appeal, the defendant argues that the statement made to Mr. Franz was inadmissible and that the trial court erred by its failure to hold a hearing on the motion to suppress.

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Bluebook (online)
768 So. 2d 165, 0 La.App. 5 Cir. 181, 2000 La. App. LEXIS 1852, 2000 WL 1021278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jolly-lactapp-2000.