State v. Williams

904 So. 2d 830, 2005 WL 1277885
Louisiana Court of Appeal·Decided May 31, 2005·No. 05-KA-59·Published·Cited by 73 cases

Opinion

904 So.2d 830 (2005)

STATE of Louisiana
v.
Denise WILLIAMS.

No. 05-KA-59.

Court of Appeal of Louisiana, Fifth Circuit.

May 31, 2005.

*831 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.

Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and MARION F. EDWARDS.

JAMES L. CANNELLA, Judge.

The Defendant, Denise Williams, appeals from her conviction of theft of goods valued at between one hundred and five *832 hundred dollars, in violation of La. R.S. 14:67.10. We affirm and remand.

The Defendant was charged on August 15, 2003 with the offense and tried on October 21, 2003 by a jury. She was convicted, as charged. Her subsequent motion for new trial was denied on October 23, 2003. After waiving the statutory delays, she was sentenced to two years imprisonment at hard labor. The Defendant made an oral motion to reconsider sentence, which the trial court denied.

On October 23, 2003, the State filed a habitual offender bill of information, alleging eleven predicate felony convictions. An admit/deny hearing was held on that day and the Defendant denied the State's allegations. On July 7, 2004, a habitual offender hearing was conducted. At the conclusion of the State's case as part of a plea agreement, the Defendant admitted being a fourth felony offender. The trial judge accepted the Defendant's admission, found her to be a fourth felony offender, vacated her original sentence and imposed an agreed-upon enhanced sentence of eight years imprisonment at hard labor. She subsequently appealed.

David Singleton (Singleton), a loss prevention agent employed by K-Mart at 2940 Veterans Highway in Metairie, was on duty the day of the theft. His job duties included watching for shoplifters using television monitors and floor observation. He works in plainclothes so that he is not identifiable as a store employee. On the afternoon of August 6, 2003, Singleton observed the Defendant in the store. She was nervously looking around and appeared to be searching for security cameras. Singleton observed the Defendant move from one department to another, putting items into her shopping cart without examining them. When she encountered sales associates, she walked the other way. The items she placed in her cart included pillows, underwear, cameras, chair pads, beauty products, bath towels, and mini blinds. Singleton followed the Defendant around the store for approximately one hour. Finally, the Defendant pushed her basket to the front of the store. She left it there three times while she went back among the store aisles, returning to the cart with more merchandise. During this time, she watched the customer service counter, and nervously looked around.

Singleton testified that the store has two sets of doors, separated by a vestibule area. Some of the doors are automatic. Under K-Mart's security policy, once a subject passes all of the cashiers and the customer service counter, and goes through the first set of doors without paying for merchandise, he or she is to be stopped. In this case, Singleton watched as the Defendant pushed her cart past the cashier stations and pushed open a door without any attempt to pay for the merchandise in her cart. Singleton approached the Defendant and identified himself. He escorted her to the store's loss prevention office, where he telephoned the Jefferson Parish Sheriff's Office (JPSO) to report the incident. The Defendant did not have any cash on her person, nor did she have any identification. She told Singleton that her name was Denise Jones. To determine the value of the merchandise, Singleton had a sales associate take the items to a cash register and scan their bar codes. The items and their prices were printed on a receipt, totaling $231.26. At trial, Singleton identified a photograph that he had taken of the merchandise found in the Defendant's shopping cart.

JPSO Deputy Timothy Stierwald responded to the shoplifting complaint. He went directly to the store's loss prevention office where he found Singleton and the *833 Defendant. Singleton had placed the Defendant in handcuffs and advised her of her rights. The Defendant was screaming and cursing. Singleton recounted the incident to the deputy and gave a written statement. The deputy testified that the Defendant did not have identification or cash. She did have a credit card, but when he contacted the credit card company, he learned that it had been reported lost. Pursuant to the credit card company's instructions, he destroyed the card. Singleton also showed him the stolen merchandise and the receipt, and gave him a photograph of it.

The Defendant initially told the deputy that her name was Denise Jones. She admitted her real name, Denise Williams, after the deputy told her that she would be charged with injuring public records, a felony, if he learned she was lying about her identity.

On appeal, the Defendant asserts that the evidence was insufficient to prove her guilt. The Defendant argues that the State failed to prove that she had the intent to leave the premises with the store's merchandise.

The standard for appellate review of the sufficiency of evidence 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, 573 (1979); State v. Bailey, 04-85, p. 4 (La.App. 5th Cir.5/26/04), 875 So.2d 949, 954-955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476. When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. Bailey, 04-85 at 4, 875 So.2d at 955. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. State v. Marcantel, 00-1629, p. 9 (La.4/3/02), 815 So.2d 50, 56; Bailey, 04-85 at 5, 875 So.2d at 955.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). In cases involving circumstantial evidence, La.R.S. 15:438 mandates 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." A different test is applied on appellate review. In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83, the Louisiana Supreme Court stated:

On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a the Defendant could afford an exculpatory explanation of the events." ... Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt....
(Citations omitted; emphasis in the original).

See also: State v. Ingram, 04-551 (La. App. 5th Cir.10/26/04), 888 So.2d 923

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