State v. Wilson

718 So. 2d 546, 1998 WL 484625
Louisiana Court of Appeal·Decided August 19, 1998·No. 30880-KA·Published·Cited by 3 cases

Opinion

718 So.2d 546 (1998)

STATE of Louisiana, Appellee,
v.
Lorraine Marie WILSON, Appellant.

No. 30880-KA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1998.

*547 Richard L. Salmon, Bossier City, for Appellant.

Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Robert Randall Smith, Assistant District Attorney, for Appellee.

Before STEWART, GASKINS and PEATROSS, JJ.

PEATROSS, Judge.

A six-person jury convicted defendant Lorraine Marie Wilson ("Wilson") of felony theft. After reviewing Wilson's pre-sentence investigation report, the trial court sentenced Wilson to two years imprisonment at hard labor. The trial court subsequently held a hearing on a motion to reconsider sentence, but declined to modify the sentence. Wilson appeals her conviction and sentence. We affirm.

FACTS

On August 30, 1996, Wilson and Lisa Randles entered the Wal-Mart store on Airline Drive in Bossier City. The women got a grocery cart and put a large trash can into the cart. They then walked through the store, alternately together and apart, putting various items into the trash can. Among these items were bottles of liquor, packages of meat, cigarettes, soft drinks and compact discs.

*548 Wal-Mart security personnel began to watch the women when they started putting items into the trash can. In the beginning, the women left the lid off of the can, but later on, they covered the can except when adding new merchandise. The women spent about one and one-half hours in the store.

When the women were finished, Ms. Randles selected several additional small items and went to an open checkout counter where she paid for those articles. Wilson, however, took the shopping cart with the trash can full of goods to a closed checkout counter and waited while Randles checked out. The women met at the end of the checkout aisle. Ms. Randles put her purchases into the back of Wilson's cart behind the trash can, and the two headed toward the store exit.

As the women pushed the cart toward the store exit, their approach triggered the automatic door opener. At this point, a Wal-Mart exit greeter and several security personnel stopped the women. The total value of the items in the trash can was $665.78. Wilson was charged with theft, a violation of LSA-R.S. 14:67.

The State subsequently entered into a plea bargain agreement with Ms. Randles in exchange for her testimony. At Wilson's trial, Ms. Randles testified that she did not go into the store with the intent to steal anything and that Wilson told her before they entered the store that she was planning to purchase party supplies using her credit card. Ms. Randles testified that, after the women were caught, Wilson told her:

[I]f I [Randles] would have gone to the McDonald's that — in the back of the store, she could have told them that I had the receipt for her and she could have gotten away with it.

After hearing all of the testimony and seeing video surveillance tapes, the jury convicted Wilson as charged.

Wilson appeals, asserting two assignments of error.

DISCUSSION

Sufficiency of the Evidence

Wilson asserts as error that she "is not guilty, as a matter of law, despite the jury verdict of guilty, because the evidence presented in Court did not meet the burden of demonstrating that all of the elements of the crime were present, as reflected in the transcript of testimony."

When issues are raised on appeal both as to the sufficiency of the evidence and as to 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 an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord 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 elements of the offense have been proved beyond a reasonable doubt. State v. Brown, 29,708 (La. App.2d Cir.9/24/97), 702 So.2d 744, writ denied, 97-2549 (La.1/30/98), 709 So.2d 703.

Wilson was charged under LSA-R.S.14:67, which provides, in pertinent part:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

In brief, Wilson argues that the evidence against her was insufficient to support a conviction under LSA-R.S.14:67.10, theft of goods. Most of Wilson's brief addresses the various subsections of that statute and explains why her conduct did not violate those provisions. LSA-R.S. 14:67.10 is a separate crime, however, from LSA-R.S. 14:67, the statute at issue in this case. By analogy from Wilson's argument regarding LSA-R.S. 14:67.10, however, the elements of "taking" and "intent to deprive ... permanently" in LSA-R.S. 14:67 are those most contested by Wilson.

The two leading cases on shoplifting thefts where the offender fails to remove the goods *549 from the store are State v. White, 404 So.2d 1202 (La.1981) and State v. Victor, 368 So.2d 711 (La.1979). In White, a jewelry store clerk observed the defendant take a display case full of diamond rings from a showcase and put the case under a box from another store. The clerk challenged the defendant and then took the case away from him; the defendant fled from the store empty handed, only to be arrested a short time later. In Victor, as the defendant shopped, he removed a terrarium from its box and in its place put a television set. He then sent his daughters to check out with the terrarium box containing the television, but the clerk spotted the television and the defendant was arrested.

The defendants in White and Victor were charged with and convicted of violating LSA-R.S. 14:67. The supreme court upheld their convictions, stating that:

"... La. R.S. 14:67 provides that a theft may occur when there is a `misappropriation' (exercise of wrongful dominion) or a `taking' (unauthorized control) of the property of another, without regard to whether there is physical movement (asportation)...."

White, at 1204, citing Victor, at 714.

Wilson's conduct in this case plainly constituted a taking. She placed a substantial quantity of merchandise in a trash can and covered it with the lid to avoid detection. She next passed through a closed checkout stand with the concealed goods. She then proceeded to the store exit without paying for the goods and pushed the shopping cart close enough to the exit to open the automatic door before store personnel stopped her. Such conduct clearly amounts to unauthorized control.

Similarly, her actions evidence an intent to deprive the store permanently of the goods. Defense counsel makes much of the fact that the trash can in question was a large item and argues that no reasonable shoplifter would attempt to use such an item to conceal a theft. Defense counsel states in brief that "... no sane thief would use such a c

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State v. Wilson, 718 So. 2d 546, 1998 WL 484625 (La. Ct. App. 1998).

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