State v. Maxie

773 So. 2d 198, 2000 WL 1634199
CourtLouisiana Court of Appeal
DecidedNovember 1, 2000
Docket33,982-KA
StatusPublished
Cited by4 cases

This text of 773 So. 2d 198 (State v. Maxie) 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. Maxie, 773 So. 2d 198, 2000 WL 1634199 (La. Ct. App. 2000).

Opinion

773 So.2d 198 (2000)

STATE of Louisiana, Appellee,
v.
George MAXIE, Appellant.

No. 33,982-KA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 2000.

*199 Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, Counsel for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler and Tommy J. Johnson, Assistant District Attorneys, Counsel for Appellee.

Before NORRIS, C.J., WILLIAMS and KOSTELKA, JJ.

*200 NORRIS, Chief Judge.

The defendant, George Maxie, was convicted by a jury of unauthorized use of a movable valued at more than $1,000.00, a violation of La. R.S. 14:68. The trial court sentenced Maxie to two years at hard labor, suspended, pending the completion of three years of supervised probation. For the reasons expressed below, Maxie's conviction and sentence are vacated and set aside, a new verdict of guilty of unauthorized use of a movable valued at $1,000 or less is entered and the case is remanded to the trial court for resentencing in accordance with the new verdict.

Factual Background

On September 25, 1998, Christina Stewart, an employee of Southwestern Wholesale Company, a wholesaler of hunting wear, sporting goods and footwear, went to Veterans Bingo Hall, which is located next door to the Midtown Bazaar and Flea Market. While at the Bingo Hall, Ms. Stewart noticed Maxie unloading boxes similar to those used at Southwestern from his truck and taking them into the Bazaar. Ms. Stewart reported her observations to Southwestern's owner, Scott Lawrence, who then asked her to return to the Bazaar and go inside, where she noticed that several items of merchandise that Southwestern purchases and stocks were on sale. Notably, much of the merchandise was new and still in its original wrapper or container from the manufacturer.

After Mr. Lawrence personally confirmed that the merchandise in the Bazaar was Southwestern's, he and Ms. Stewart notified the police. Investigating officers learned from the owner of the Bazaar, Ms. Ann Coleman, that Maxie sold her the merchandise, claiming that it was seconds from the warehouse where he worked. Police then confiscated and catalogued the merchandise and arrested Maxie later the same day, charging him with felony theft, in violation of La. R.S. 14:67. A subsequent amended bill of information dated October 21, 1999 stated that Maxie "committed a theft of property, of a value of over $500.00, belonging to Southwestern Wholesale, Inc."

At trial, Mr. Lawrence identified the boxes recovered from the Bazaar as ones removed from Southwestern and that they bore case numbers indicating that they were part of a shipment to Southwestern from La Crosse. Likewise, he also testified that the 107 items of merchandise that Maxie sold to Midtown Bazaar were taken from Southwestern without his consent. He also noted that all of the merchandise recovered was new; there were no seconds as Maxie claimed. Although employees were permitted to buy stock at cost, and in some instances merchandise was given to employees, Mr. Lawrence testified that Maxie never bought, nor was he given, this quantity from Southwestern. As a warehouseman, Mr. Lawrence testified that Maxie would have had access to the merchandise and that he was seen parking his vehicle in close proximity to the warehouse on various occasions. In addition, Mr. Lawrence noted that eight pair of men's six-pocket pants were uniquely labeled and marked by waist size, as opposed to sizing by small, medium, large and extra-large. This labeling was consistent with Southwestern's inventory methods, and to Mr. Lawrence's knowledge, his company was the only company in the country that purchased the pants from the manufacturer in this manner. Mr. Lawrence additionally testified that the wholesale cost of the merchandise recovered was $2,899.71, while the resale loss was approximately $3,800.00. On cross-examination, however, Mr. Lawrence admitted that no one saw Maxie remove the merchandise from Southwestern.

Maxie, testifying on his own behalf, claimed that he did not wrongfully take this merchandise from Southwestern, contending that he obtained the items from various sources including garage and yard sales, roadside vendors, and other flea markets, and that some of the items were purchased by him or given to him by Southwestern. He admitted that he had *201 no receipts to verify that the items had been purchased from either Southwestern or elsewhere.

A jury convicted Maxie on October 22, 1999 of unauthorized use of a movable valued at more than $1,000.00. On October 27, 1999, the trial court sentenced Maxie to two years at hard labor, suspended, pending the satisfactory completion of three years of supervised probation. As a special condition of probation, Maxie was ordered to serve four months in the parish jail.

Following the imposition of his sentence, Maxie filed a motion for new trial and for post verdict judgment of acquittal which was denied by the trial court on October 27, 1999. He also filed a motion to reconsider sentence which was denied by the trial court on March 28, 2000. This appeal followed.

Discussion

On appeal, Maxie urges two assignments of error: sufficiency of the evidence and that the trial court erred when it included a non-responsive verdict in the jury instructions and on the verdict form. Because of the nature of the patent error noted in this record, we shall address his second assignment of error first before reviewing his contention that there was insufficient proof to support a conviction.

In his second assignment of error, Maxie notes that he was charged by bill of information with a theft in excess of $500.00, yet contrary to La. C.Cr.P. art. 814 D, the jury returned a verdict of unauthorized use of a movable valued in excess of $1,000.00. The state concedes in its brief that the verdict was not responsive and Maxie's conviction and sentence should be vacated and a verdict of guilty of unauthorized use of a movable valued at $1,000.00 or less be entered. We agree. State v. Warner, 543 So.2d 571 (La.App. 4th Cir.1989).

In its jury charge, the trial court included as a possible verdict: "6. Guilty of Unauthorized Use of Movables Having a Value in excess of One Thousand Dollars," and the responsive verdict form likewise included this as a possible verdict. The jury returned this very verdict.

La.C.Cr.P. art. 814 provides, in pertinent part:

A. The only responsive verdict which may be rendered when the indictment charges the following offenses are:

* * *

26. Theft:

Guilty of theft of property having a value of five hundred dollars or more.
Guilty of theft of property having a value of one hundred dollars or more, but less than five hundred dollars.
Guilty of theft of property having a value of less than one hundred dollars.
Guilty of attempted theft of property having a value of one hundred dollars or more.
Guilty of attempted theft of property having value of less than one hundred dollars.
Guilty of unauthorized use of movables having a value in excess of one thousand dollars, but only if a value in excess of one thousand dollars is stated in the indictment.
Guilty of unauthorized use of movables having a value of one thousand dollars or less.
Not guilty.

(Emphasis added.)

In addition, La. C.Cr.P. art. 814 D states:

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Bluebook (online)
773 So. 2d 198, 2000 WL 1634199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-maxie-lactapp-2000.