State Of Louisiana VS Leopold Lacoste, II
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 KA 0499 STATE OF LOUISIANA VERSUS LEOPOLD LACOSTE, II Judgment rendered NOV l 2 2014 ****** Appealed from the 32nd Judicial District Court in and for the Parish of Terrebonne, Louisiana Trial Court No. 635,841 Honorable Randall L. Bethancourt, Judge ****** JOSEPH L. WAm, JR DISTRICT ATTORNEY ELLEN DAIGLE DOSKEY ASSISTANT DISTRICT ATTORNEY HOUMA, LA ATTORNEYS FOR STATE OF LOUISIANA MARK D. PLAISANCE THIBODAUX, LA ATTORNEY FOR DEFENDANT-APPELLANT LEOPOLD LACOSTE, II * * * *~* * BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. J·· .?1 [. ,.. .--~ . : ·: :.·>:. PETTIGREW, J. The defendant, Leopold Charles liChuck" Lacoste, Hr was charged by amended bill of information with identity theft (victim over sixty y~ars of age and value over $1000.00), a violation of Louisiana Revised Statutes, section 14:67 .16. He pied not guilty and, following a jury trial, was found guilty as charged, He filed motions for a new trial and a postverdict judgment of acquittal, both of which were denied. The State filed a multiple offender bill of information. After a he~ring, thf!. 9f!fen_dant was adjudicated a fourth- felony habitual offender and sentenced to thirtY year~ at hard labor without the benefit of probation or suspension of sentence. assignments of error. The defendant now appeals, alleging four For the following reasons,. we affirm the defendant's conviction, habitual offender adjudication, and sen~ence,. FACTS The defendant's father, Leopold Charles Lacoste, Sr. ("Polo"), testified at trial that he discovered a Citibank credit c;ard in hls name while running a credit check on himself. The address on the credit card application was that of his ex-wife, Linda Thibodaux. 1 Polo testified that he had not given Linda or either of their sons permission to use his identifying information to acquire this credit card, 2 On March 21, 2012, Polo contacted Citibank about the card. The matter was investigated by Chip Bulin, a fraud investigator at the company. According to Bulin's testimonyr an online application for the credit card was submitted on September 26, 2011, and the primary applicant was listed as "Leopold C. Lacoste." The date of birth of the appli~antwas listed as May 28, 1941 (Polo's date of birth), the address was 4162 Highway 5~ (Lind~'·~ ,.r,esidence), and the social security number provided was that of Polo. 1J1e ell)ail, !=!.ddre.ss provided was LCLinNol@aol.com. I '• ' • •; • :' : : ~ Because further verification was requested, two utility bills issued to "Leopold C. Lacoste" . . . '.. ··... : . .~ at the Highway 56 address were submitted. According to the February/March 2012 1 Polo and Linda divorced in the early 1990s. 2 Polo and Linda have two adult sons, the defendant and William Thomas Lacoste, who goes by "Billy." 2 account statement, the balance on the credit card was $l2,496.4L Terrebonne Parish Sheriffs Office Detective James Prestenback also investigated the matter. Because a majority of the chEff':Jes pn the credit card were made in Houma, Detective Prestenback contacted the bu~inesses there . to determine who used the card. . . An employee at Gator Equipment Rentais sti:itE:d that th.e defendant used the card to rent ., ' . ,. : a concrete mixer under another person 1s account. The credit .card was also used by the defendant to make a payment at Al. Unlimited Bail Bonds, a company in Houma. Based on this information, an arrest warrant was prepared for the defendant, and a meeting was arranged. Because the defendant did not appear for this meeting, officers prepared an affidavit and search warrant for the Highway 56 residence (Linda's residence), where the defendant was residing. When officers arrived, the defendant was outside. placed under arrest and transported to the pQlice station. He was Officers then conducted a search of the defendant's room and bathroom l!) the residence. Pursuant to their search, officers· found \'Val-mart receipts that corresponded with ... ·: charges on the Citibank statement The la.st four .~igits .of the credit card used printed on the receipts were consistent with those for th~ account number. Officers also located a business card bearing the name "L.C. 'Chuck' LaCoste II" and the Highway 56 address. The business card listed the same email address and home telephone number as that used on the credit card application. SUFFICIENCY In cases such as this one, where the defendant has raised issues on appeal both .. as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. When the entirety bf the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold; 603 So.2d 731, 734 (La. 1992). Accordingly, we will first -address the defendant's fourth assignment of error, . which challenges the sufficiency of the State's evidence. 3 Specifically, the defendant .....· argues that the State failed to establish thpt. he was the person who obtained the credit .·· ... · card at issue. A conviction based on insufficient evidence cannot stand as lt violates due process. art 1 § 2. The standard of review for the See U.S. Const amend. XIV,: La. Const 1 sufficiency of the evidence to uphold a convict!on is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found a r~asonable the essential elements of the crime beyond doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 6J .LEd.id .56,0 (1979); see La. Code Crim. P. • .: 1 ·'' ' ' • art. 821. The Jackson standard of review, incorporated ·in Article 821, is an objective standard for testing the overc;ill evidence,. bo~~ direc;:t and circumstantial, for reasonable doubt. When analyzing circumstanti~I· evidence:: t:a.: ·ks: JS;438. provides that,. in order to .. . . convict, the fact finder must be ' ' sati~fi.ett ·th.a(Jli.e .' overall ·:evidence excludes every . ..: ' .. . . . . . reasonable hypothesis of innocence"· ;,_. . . ~ Se~· State \{Patcirno," 2001-2585, pp. 4-5 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144. Prior to amendment by 2014 La, Acts No,.811, § 6, La" R.S. 14:67.16 provided, in pertinent part: B. Identity theft is the intentional use o.r possession or transfer or attempted use with fraudulent intent by any person of any personal identifying information of another person to obtain, possess, or transfer, whether contemporaneously or not, credit, moneyr goods, services, or any thing else of value without the authorization or consent of the other person. C. (l)(b) Whoever commits the crime of identity theft when the victim is sixty years of age or olde;r or a .disabled. per~on when the credit, money, goods, servicesr or any triklg else of value is obtained which amounts to a value of one thowsand :qpl)~r:$ or rn,ore, shall be imprisoned, with or without hard labor, for ·not ·1ess· than· three years and for not more than ten years, or may .be fined ~-ioJ: ~pore .than ten thousand dollars, or · · · · .· · bo~. The defendant argues that the State put forth no evidence to prove that he intentionally used, possessed, transferredr or attempted to use the personal information of his father to obtain a credit card, He claims that investigators could not link him to the credit card application and that no cellular phone records, telephone calls, or computer 4 records from his seized computer were found tQ prove that he used Polo's identity to obtain the credit card. The parties stipulated that Poio was. sev~nty year::; oid at the time of the alleged offenses and that the defendant used tl1E.: .:(T~.~jit carq at issue to obtain goods and services .. :, in excess of $1,000.00. The State pn:~se:nted... evidence that the Citibank card was . . .:.... : - . . . : . . . ' obtained using Polo's social security nurnb~~ ........ plrt,hdaY:.. The .r~rnaining information, .· .~.nd. . . ·. . . · including the email address, home a.ddre$s, a_n~j ' the defendant. • • . ' ~~ ' , r.·1ome. telephqne I ' • • • ' : ' number were those of • • The State put forth evidence i tr1at the : ,defendant's email address was , ; : ·, '• ;, • : , • ' • I • . 1 •, '•: : ~ ': . listed on the original on line application~ .Ci.tipan~z. w~;~d..that .address. to correspond with the ' . . . . .: . . . ~. ' applicant. It requested additional information and received documents in response to the email it sent to that address. There-, was no: te$timony that anyone other than the defendant had access to his email account~ . Linda testified that during the last week of . .. September 2011, the defendant was li:v~ng i~ ht;r home, and Billy, the defendant's brother, was "in and out" but did not llve wi~~ them, . . The State established through. other crirq~s eviqence that the defendant had . .' . . . . access to Polo's social ~ecurlty number Terrebonne Parish Sherriffs Officer Corey anq n;;i~ . used it multiple times in the past. Brupet.t~stj!Jed _that in 2003r he interviewed the defendant in connection with a complaint: frorn Po!~ .i.n referenc~ to identity theft on a utility bill. The defendant admitted having c:omn~itted identity theft in the past and using Polo's identity to obtain vehicles and dothlr'!g, HE:' was placed under arrest in connection with the investigation. The State also established that the: def~ndant relatives and family friends to open accounts; dsed the· identities. of other close obtain. funds, and p~rchase goods, . Houma Police Department Detective Jeffrey Lirette ,irivestigated a 2002 complaint involving the defendant in connection with forgery ori Linda's checks on a closed account Detective Lirette was contacted by a bank while the defendant was there attempting to cash a check on the account He went to the bank and placed the defendant under arrest. Detective Travis Theriotr also· with the Houma Police Department, investigated a 2011 complaint from a truck stop owner that the defendant was using a stolen credit card ..5. ·., ... ,' .·. .·' . at his business. The lnvestigatlon reveai~d that ·tt1e. defendant used the card belonging to someone else twenty-one times betvveen May )51 .2011, and June 29, _2011, for $683.85 at one truck stop and $1,383 . 89 at another. 1)1~ def~ndant was arrested and pied guilty to using the card, Jefferson Parish Sheriffs Offic~r Sco~t Ort:qgo. testified that he encountered the defendant when he was working private d_etail at. The Home Depot in Harahan on February 12, 2002. The defendant was attemptln_g to open a credit card account in his grandfather's name and stating that it was for thei·r b~siness. The defendant presented a driver's license that listed his name as ".Leopolcj Charles Lacoste" and a social security number ending with the same last four digit~_as. t~~t of Polo'.s social security number. Della Dupre, owner of. Captain Allen'.s · .Bait ~n~r Tackle in .Terreoonne Parish, .: ' . . ' testified that the defendant perio.dically .· came into ·Her store. In April. 2011, he presented . : . . . her with a check on Linda's account writte~ for$3QQ,OO'. She cashed the check for him, and he returned a few days later with another. .~he_ck for $175.00. She cashed the second . . . . ~ . check, and he presented her with a third .chec~ for $180.00. The three checks were returned due to nonsufficient funds. She cof)t<;icte.d, the defendant, and when he did not pay her, she notified the police. The defendant w~s piaced under arrest. Timothy Fanguy testified that he is the ovvn~r of Al Unlimited Bail Bonds. The defendant called him from jail on August 12, 201 lr and toid him that his bail was set at $150,000.00. Fanguy posted bond for the defendant, and informed him that he owed him $18,055.00 on the .bond. The defendant wrote a check to hlm for $5,000.00, which was returned due to no"nsufficie.nt funds:·· Affei the\:h~ck:was· retu~ned, the defendant made two payments using ·the credit ~ahi.:a{~ssG~io~"$1;3oo:·aa·a-nei" $3,too.oo. Fanguy testified that he did riot press criminal. cH.ar~~~ ·;~9a1r1st. th.e" defendant~ The parties stipulated that the· defendant ls who pied guilty to (1) identity theft in Orie~ns· ·. ·u1e sa,me L~opoid Charles Lacoste; II, ·Parish, docket number 445,985, on 1 April 23, 2004 (in connection with the defendant writing counter checks on Polo s checking account); (2) forgery in Jefferson Parish, docket number 025,152, on February 19, 2004 (in connection with the Home Depot incident); (3) forgery (3 counts) in .6 ' Terrebonne parish, docket number 424A62 1. Qn May 23, 2005 (in connection with forging Linda's checks on the closed account); and (4) theft under $500.00 in Terrebonne Parish, docket number 602,075, on March 20 .. 2012 On c~mnection with forging Linda's checks at Captain Allen's Bait and Tackle). After a thorough review of the record! we are convinced that viewing the evidence in the light most favorable to the State, any ratic:na! ~rier of fact could have found beyond a reasonable doubt that the defendant was guilty of identity theft. The verdict rendered in this case indicates the jury. rejected th.e defepdanf";; theory that someone else applied for and acquired the credit card and tha~. h~ ..simply .use~ it When a case involves circumstantial evidence and the jury reasona.b!y~ .,rej~cts the. hypothesis of innocence presented by the defense, that hypothesis fa)I~~· a.nd.t.he defenc;Jant is guilty unless there is . . . . ~ ' ,· another hypothesis that raises a reasonable douQt. S~ate v: Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 ,(La. ·1987}; see also State v. Mackf 2013- . ·' 1311, p. 6 (La. 5/7/14), 144 So.3d 983, 9$9 (per curiam). No such hypothesis exists in ' . the instant case. This court will not assess t~e credibility of witnesses or reweigh the 1 evidence to overturn a fact finder s deterrrilnation of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Lofton, 96-1429, p. 5 (La. App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, yvrit denied, 97-1124 (La. 10/17/97), 701 So.2d 133L Additionaliy, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and clrcuh1stances presented to them. See State v. Ordodi, 2006-0207, pp .. 14-15 (La. 11/29/06), 946 So.2d 654, 662. appellate court errs by substituting Its appre~Yation," ~f 'tlie An evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented· tb, ~nd ~ationally rejected by, the jury. State v. Calloway, 2007-2306, p, 2 (La; l/21/09), 1 So.3d 417, 418 (per curlam) . .. of error is without rrierit Accordingly, this assignment ,.., . I .. OTHER .CRIMES .EVIDENCE . . . . .... : ... : ... . . ~ ~ ' . . ' . In hls first assignment of errorr. '~tK~... d~:fends~~t. arg~ses that the State's notice of . . . . . . :· . : intent to use other crimes evidc~nce was inadeqtmtre because the 5ti?te failed to support .. . .. . ' · '.:· :· the purpose for its use of the othE~r· qime:s: evlref,ence.". Th~' defendant also contends that . : the State introduced other crimes . at trija~ Up![ !t faiie(j to prove at the pretrial hearing and ' . . that the district court erred by failing to ins~r.uct the, Jury on the limited use of other crimes evidence. • • •r • ~om..mitt~d by the defendant is inadmissible Generally, evidence of other crime$. ··.,: '. due to the "substantial risk of grave prejudice-to the.defendant." To admit "other crimes" ;:in ingependent and relevant reason for evidence, the State must establish that . _th~re is. :··.··· • . i. doing so, i.e., . • . to show motive, opprnturiity, ir.i~eriti'. preparation, plan, knowledge, identity, absence of mistake or accident, or when, it reiatE;>s to conduct .that. ~onstitutes an integral . . -· . . : :•., '• part of the act. Evidence of other qi mes, ·hovyever,. is not admissible simply to prove the bad character of the accused. F.urther, th~ other crime·s evidence must tend to prove a . . . ' . material fact genuinely at issue .and .the .propatlvi;: vah.,!e of the extraneous crimes t;.ffect evidence must outweigh its prejudiciai .St~~e 18 v. Tilley, 99-0569, p. _ (La. 7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 l.Ed.2d 375 (2001). Ultimately, questions regarding the admissibility· of evidence are within the discretion of the district court and should not be disturbed absent a clear abuse of that discretion. State v. Mosby, 595 So.2d 1i35, 1139 (La, 1992). The procedure to be used when the Sfr)te intends to offer evidence of other criminal offenses was formerly controlled.: by· P.fieu~> .-Under Prieur, the State was required to prove by clear and convinc~ng evidence that the defendant committed the other crimes. Prieur, 277 So.2d at· 129~ ·:How~~~r, 1994. La, Acts 3d Ex. Sess. No. 51 added La. Code Evid. Art. 1104 and amended Art.Ide 404B. Article 1104 provides that the .. burden of proof in pretrial Prieur hearings/' "shall be identical to the burden of proof 11 required by Federal Rules of Evidence Article IV, Rule 404. The burden of proof required 3 See State v. Prieur, 277 So.2d 126 (La. 1973). 8 ·.. ··· .... by Federal Rules of Evidence Artlcie IVr RuJe 4041J? satisfied upon a showing of sufficient • 1 • • • • •• • •• evidence to support a finding by the jury that. th12 .def~ndar,it committedthe other crime, • • • ' ' • • I • • wrong, or act. See Huddleston v. U.S.,, 485 U.. S. ~81, 685r 108 S.Ct l496r 1499, 99 . . '. .. . L.Ed.2d 771 (1988). The Louisiana Supr~rne Co:ur~ hq;;; • ' .I·.. yet to address the issue of the • burden of proof required for the admisslon of_9t~1(~r cri.n:ies.evid~nce ln light of the repeal of La. Code Evid. Art. 1103 and the .add~ti.Qn·::·::. Artlc!e. 1104, ' However, numerous of . . ... . ... . . ' /• Louisiana appellate courts, including this court:,_ h9ye. he_id that burden of proof to now be . . . .. Stat~ less than "clear and convincing.'_' . . .. . ~ ·-' .. . . . v •.Mmi.~ni: .2002-1006, p. 11 (La. App. 1 Cir . ·. '.: . .. :. .. . . . 2/14/03), 845 So.2d 506,.514; see also S~a~e.v-,._WUIJarns, 99~;257~, p. 7n.4 (La. App. 1 . . .._ I:·.:.•".' •; .: .. :.j Cir. 9/22/00), 769 So.2d 730r 734 n.4 ..... , Prior to trial, the State filed notice.. qf . .. , '.. ' • •. • ·' .· jnteotJo ....... µ,se . ..... , · ' evid~nce of other crimes. The . defendant argues that the State's notice was ina_C:1t;i9.w~!-'2. q~cause it failed to set forth the purpose for which the other crimes evlcter1ce wa$.'.b~lr_g offered. The notice provided by the State listed the nature of the other· crimes,.agai~st w~om they occurred, and when they occurred. The defendant was cha.rged. ~lt,h loentity.theft.. of an individual over the age of sixty. His defense at trial was tha~ h~ was not .the person who applied for the Citibank credit card, The other crlm~s. ~vldenq~ .involved charges of identity theftr forgery, unauthorized use of access cards, and theft under $500.UO. A majority of the . ' The other crjmes evidence established that the victims were elderly individuals. defendant used the identities of close, E:iderly t::arhHy and friends in order to obtain access cards, funds, and goods; and it specifically number of the victim in order defendant that it would est~biished that he' used the social security t6 obtai~· ~~cicA>·.ifi:{c!e:ar that the Stat~ was notifying the u~e thl~ 6th~r''c~itn~s;:~~id~hce'·co demon~trate •' knowledge, intent, plan, and motive the defendant's to use· the ·victimis social security number and other '·\ '•• '\ . ••I . .. . identifying information in order to obtain the Citibank credit card. "The rules of Prieur were not meant to be used as additional, technical procedures sacramental to a valid conviction." State v. Lee, 25,917, p. 7 (La ...App, 2 Ciro 5/4/94), 637 So.2d 656; 662, writ denied 1 94-1451 (La. 10/7/94), 644 So2d 63lr (quoting State v. Banks 1 307 So2d 594, 597 (La. 1975)), Substantiai cornp!iance vvi·ih Prieur is all that required, State v. The .State substc;intlally complied with McDermitt, 406 So.2d 195r 201 (La. 1981). Prieur because the exceptions under whldi. the..ot~~r cri1T1(2s evidence would be admitted ··'". . ' at trial were clear, Moreover, at the_ Pt.i~µr. h~p,aripg,. the State clearly explained the • 1 . '.. • •• • ••• exceptions under which the othe1· crimes ·~vere b~~tng ·.admitted, thus putting the defendant . . '.· .. .· . · on notice before triaL .. . , ... ... • • ' • 1 ·• The court held a Prieur hearing to d~te.rmine . . ·:··.. . ' •' '• '.che admissibility of these other crimes pursuant to La. Code Crim.. P.. art. .·:494E3(1). At the hearing, the defendant argued ... .. ·: . \ that the State failed to state the specific purpose for which it sought to introduce the other crimes. The State responded that the other .(:rimes were relevant to show the ~cheme defendant's guilty knowledge, intent, plan, ·.· . . .. 1 .. p;:ittern, and motive. . . . · ..... The State ' : presented evidence in support of each. of the other crimes as follows: 2001 Identity Theft The State introduced the bill of rnformati9n~. mipute entry, and "Plea of Guilty!! .to ld~ntlty theft under Orleans Criminal form, indicating that the defendant p!eq gu!lty. .·.: . ·.,· .. ... ' District Court docket number 445,985 on· Apri! 23; 2004, The State also introduced the testimony of Polo, who stated the defendant used his social security number "time and time againr" beginning in 2.00i, wh~n the o.~l~f::nd9nt wrote counter checks on his checking account in connection with this charge . 2002 Forgery In connection with the defendant's forgery charges for stealing his grandfather's identity, in an attempt to obtain a Home Depot the State introduced the bill c~edit . card in Jefferson Parish, in 2002, ~f inf~rmati6n,. ·rf1in~t~· ~ntfy,. and pollc~ incident. The officer who authored repo'rt. detailing the th~ ·r-~Jb.rt f~sbfled .:~t ··t~i~I. ·Th~ State ·~iso introduced the "Waiver of Constitutional Rights Piea·: 6f G'~iify,'1 ;: ·i:~d'i~atin·g·.· that the .. : .:·· : . . (\ . '. . defendant pied . guilty on Februa1y 19, 2004, under 24th ·Judidai Distrid Court ("JDC"), Jefferson Parish . ... docket number 02.-5152. 2002 Forgery & 2003 Identity Theft 1 In connection with the defendant's September 2002 forgery of three of Linda s checksr the State introduced the bill of information, minute entry, and police report. The :· )0 .. . . ·' .:. .··:· ·... officer who authored the police report. t.e;;t:m~d O)t triai., ..Also. introduced were affidavits by Linda, stating that the signatures on the chec:k$, rnade. payable to "LC. Lacostel' were forgeries; copies of the checks~ a searct) warrant for . the defendant's vehicle; and a list of items found in the defendanes vehicle,. indudin9 Unda:s checkbook. The State included the transcript from the February 28, 2005. hearing where the dE!fendant was advised of his Boykin 4 rights, and the defendant pied guilty to three counts of forgery under 32nd JDC, Terrebonne Parish docket number 42.4,.46.2, on.May. 25, 2005. Pursuant to his plea agreement, the State dismissed anotrier ch.arge,of..identity theft. Jhe dismissed charges were related to identity theft of Polo in ·rerrE:bonn~. p~rish.,in. 2003. .Polo testified that the . . :i . . ' .; ' ' ~ defendant used his social security n.umber to p.urchase ..a. Jeep, purchase other items. pay utility bills, and to Because of thi=. :plea. c;ig.r~el'f1ent,. there was no conviction. '' ' However, the State argued that the qharg~s . i.... · were ·relevant to I ' '• . :·.. :. ' show that the defendant ' used Polo's name and social. security nur.nb~r .to. . obtai,n credit. ·. ' : In addition to Polo's testimony, the State introduced the bill. of inf9r_m~tion 1 arrest report, copies of telephone .. < . bills, and a witness statement form and idet1tity theft affidavit filled out by Polo. The officer who authored the report testified at triai. 2011 Theft under $500.00 In connection with the defendants :charges fo'r. theft under $500.00,, for forging Linda's name and cashing her checks at Captain Allen's Bait and Tackief the State introduced a police report, bill of infoh11ation, and mlriute entry. The owner of Captain Allen's testified as to the details at trial. On ·Man.~h ·20, 2012, the defendant pied guilty to docket ~umber 602r075. The State argued that it. was' s.ho~·i',~·g :~:::p~tte:i·~· b{ the. :defendant's behavior for theft under $500.00, under 32nd)DC, TerrebonrirT Parish over a ten-year period in stealing the identity .of elderly people, and explained that the next two charges were an integral part of the W1starit case. 4 See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 LEd.2d 274 (1969) . ., .. 11 . "·' :~ ·.·:: .. ..... '.:,;' :· 2011 Identity Theft ' l • ·.• .. .;· ' .·· .. ,f. When the defendant was arrested. for ~cl.entity ~he~· In conn~ction with the use of a credit card belonging to ;;~mother, ln TerrE;bonne Par.!.s~1;' his bond was set at $1.50,000.00. .. . . ' ' : .. ' ·.:. .. . . ~ ' That charge was iater amende~i to theft. r:.m~j~r. .§51Qp.OQ1 ~nd the defend.ant pied guilty on .. . ·.. . ' ~ ' March 20, 2012., under 32nd JD(:, Jerrebonne . :. P~,:iris\1 ' dod:.et numbe.1· 618r347, Fanguy at ·.· ·.· A1 Unlimited posted bail for the defern;:lant.. .·wti~n the .detenc,iant was released from jail, . ' .: .. ··.. ; . . \·., '. .. . . . ' ,• . he wrote a check in payment of hls Q.al! OQligatior) '~9. F;;;iqguy in the amount of $5,000.00. • ' ' '. . .• :, ·. ! • . . . . .: ... : "'.. ·'. '. ' . • defendant . used the credit card at The check was returned for nonsufficient: :funcis, and the, ·~' ",,·," " ' ''.:'° •: '. ! : ["':~·.. • ,t : ~··;. , ' ' ' I issue in order to pay the debt Fanguy did npt press criminal charges. Defense counsel . ..... .. .·. . ··; '. stated that she did not consider those off~nses ..~s '•' prior acts. II ' .... t.(eirig.covered UDder ."other bad acts or '.•. Jo~ She indicated that she ·qid ·notq~j~~t ·.. ·.thosE;'two .offenses for purposes of .·,,' .. '. the Article 4048 notice, but that she '.\A/(15-. •riot waJving any objection to potential . .' " . . ~ ' ~ ' admissibility problems at trial. The distri~ cou.~ .~g,reed that .defense .counsel could still raise the objection during trial. It then opin~q th~t ru,li~g on. those two offenses was "ki~d of a moot, but I'm going to let it in. Obyiousiy, J dor'..~ tt1lqk .I h9ve a choice.'.' . • . . . . . . . . :: 2012 Unauthorized Use of an Acce.s~ !. •.. •: ' . C,il,[J!. •, • . . i The last "other crime" that the State so.pght. to lntr?.duce lnvoived the def~ndanfs use of Dr. George Lyons's credit card in 2.012 .. [-\lt~iough the doctor gave hls card to the:: defendant to purchase a hot water heater for his daughter (whom the defendant was doing repair work for), when the bl!! came in . ' there were over $3,500,00 worth of unauthorized charges, In support of this char·ge 1 'che State introduced the police report and a copy of the credit ~ard statement .:H6~~eve'r, ·testiin·o~y and· evidence established that the victim of the offense chose not t~ p~es~(t11a·;ge~. Convinced by the State's arguments, :. the: dt~trict court allowed each of the crimes in, finding that they were relevant and showed a pattern, The State~s intent to introduce these prior offenses to establish the defendant;s pattern of using Polo's sociai security number and the Identity of eider!y family members and friends goes directly to rebut defenses the defendant may raise .at trial that he did not use .Polo~s identifying information to obtain the Citibank credit card and demor1strates their independent relevancy besides 12. :· . ·.• . .......... ·· . . , .' : ""'• person. The merely painting the defendant: as a bad other crimes evidence is also relevant to establish the defendants knOV\l'ledg~, of, ~nd plan to use Poio's identifying . information. : ~:. ,... . =.. .·; : . .. .. . • . His motive for using Poloi:s i'.:kmt!W ir·i qrqer to obtain funds to cover his ,. expenses was: also established ~hrough the)r~yt4(~ot;lon ' .. ·. : ~ 9f the oth~r o~1HK~s,).e.i. using the Citibank credit card at issue to pay for t~e. tx:.irid .e~p~ns1?.s he incurred resulting from his theft charge in Terrebonne Parish. Based on our review of the r~cqro ... yv~ .findtba~ the district court did not err or • • • ' ~ ... • • > • • abuse its discretion in allowing the introduction, of the oth~r crimes evidence presented by .''. '· ,. ' :· .. the State. While the introduction of ~his ..other _t:nrf)eS evicl~n~e wa;, c:ertalniy prejudicial, .. ... ~.. . .' . . . the probative value _of the evidence--:to shqw the d~fendant's knowledge of Polo's . . identifying information and motive .·' !.):.:. . for ~pp_iyin,g..f9(~r1e • ' ' ., . ~ .. . i any prejudice. ' • . . . (]tjban~ credit card-outweighed ,t •. . = ... '· The defendant also complc:iins that the. 1J.lstrl1:t court erred in failing to charge the . ! • ·• . • I • jury at the close of trial as to the lirnit~d pur:pose of:.tr1e other crimes evidence and that ' ..· " .. ; .. . . the defendant could not be convicted for ar:iy_ crl,m~ _6tt:1er than the one .charged. When .· ., .·.. . .· ; other crimes evidence is admitted ln a jwy triai, .the coµrtr upon the defendanes requestr : ' ... . must charge the jury as to the limited purpose fpr whi~h the evidence is to be considered. '1 • • • • Moreover, the final jury charge must contain arr instruction regarding the limited purpose for which the other crimes evidence was received, At the jurors that the defendant cannot be conv~cted tt1at time, the court must instruct of any i=harge other than the one named in the indictment, or one responsive thr:freto, Prleurr 2'77 So2d at 130. Our review of the district co~res··.tir;a(ju~y: 1;1sfructions :reV~als.that there ~as no mention of the other crimes evidence.:: Pi·1o:~:io·:;~~dlh~"the· instructions, the district court asked the parties if they were ~tcepta'bi~;· a'tici :def~ns~{t~1inser'ir;ditated The defendant neither reques'ted a spectai "jUrY .ch.arge charges. The district court instructed the that they were . nor trmely ~bjected to the flnal ju~ j~r\i"r. 1 'R~member that the defendant is on trial only for the offense charged. You may not find hlm guilty· of this offense merely because he may have committed another offense::! After it read the instructions 13 to the jury, the district court asked if there were any obJ.ectlons to the charge, and defense counsel stated . -. . ' that it had none. Louisiana Code of Criminal Procedure ardd 1280lC: pr6vides: A party may not assi"gn •as r~rn:;r the giving o'r failure to give a jury charge or any portion thereof un:.ess 21n objection thereto is made before the jury retires or within such tirmi as the ,:qurt rriay reasonably cure the alleged error. The nature of the obj~c;tiOQ. ao9 grounds therefore shall be '."fhe ·court ·shall give the party an stated at the time of objection: ·. opportunity to make the objection out of the presence of the jury. The requirements of Prieur no~ithst~n~lflQ, ?ecause the defendant failed to make a timely objection under Article 80.l,. h~/ailed to. prese~e the jury charge issue for review. See State v. Nguyen, 2004-32.l,. ·p'._ 1.~ . (L.a. App. 5 Cir. 9/28/04), 888 So.2d • • ' :• I'' ' • 900, 909-910, writ denied, 2oos-0220· (La;.:·4/29/05), ~.Qt So.2d 1064. Accordingly, we are precluded from addressing this issue. : .. ,.., · . :. ::": •· This assignment of error Is withe.wt merit.. :.... _.. ·.· · HEARSAY STATEMENT . . . . · ... In his second assignment of errort .tt)~ defencjant argues that the district ~ourt erred in excluding hearsay testimony at tria~ that his brother, Billy, planned to frame the defendant. He argues that the exclusion of this evid~~1ce interfered with his constitutional right to present a defense. The defendant sought to prove that it was actually Billy who applied for and obtained the Citibank credit card at issue. At trlal, the defendant called Billy to testify. . . .. ... . . 1 After a hearing was held outside of the jury s preser1ce; Billy invoked his Fifth Amendment right to remain sil~nt. . The . def~ndaht '.the~.' ~~fled: kiihb~rly . . ·.. · : ..:: !·::··:. ·::.:.!·:.~:;·.·-:··! Fanguy to the. stand :·.: .......:/·:· ..... ·. in an . attempt to introduce the statement made by Billy through her testimony, Kimberly was allowed to testify outside the jurl~ preseric~, '~~1ci·a'.ft~?~he· p·resented her testimony, the district court instructed her that when the jury. returned, she was not to discuss anything related to Biliy's statement to her rega1·ding the credit card issue. The defendant proffered Kimberly's testimony. Kimberly . then testified in ·the jur-Y's · pfesence that she ·was married to the defendant's first cousin, and knew the defendant and Billy. .14. ' ... ' ··. ·'; One morning in. October 2011, she woke up and found Billy lying on a. so~a in.a .b9ck room in her home. He told . '' . ,•;, ,'. her that his mother kicked him out o.f her. home. because. he and the defendant had gotten . . . . '. ..· ... '. . . . : . . . ~ ' ·. '.': ··: !i into an argument:. According to Kimberly,.. srnv was v.ery angry with the defendant, was screaming, and was not acting in his normal rrn:~nrif'.r,. She testified that Bl!Iy looked tired . . ·. . . ' and unlike himself. She expiained that Biliy 'was angry because he needed to use his int~rview mother's vehicle earlier that day to go to .a job repossessed. His mother refused to let him use th~ because his vehicle had been vehicle. Later that afternoon, Billy saw the defendant in the vehicle. Kimberly testified that Billy stated that he was going to . ... . . . . ' bac~L.J" "kick [the defendant's] ass[,]" "get him and,th;;it he was "going to kill him[.]" In her proffered testimony, Kimberly ex.plained that Billy indicated that he wanted to rent a vehicle to go to his job intervie\'.V. He, told her that he had intercepted some '.. ' . . ·' h~ credit cards from the defenda.nt in the . mail. and that . .. . 11 was .going to fix [the defendant]" . . ' Kin;q~rly "i?.rought and use that in order to get the vehicle.·. . . Billy to a ca.r rental business "· ·.· that day, but he was unable to rent, a. vehide,. Billy told her that he believed the defendant would be blamed for the ·er.edit ca~d. incident because the defendant "has a record of that." A defendant has a constitutional right to present a defense. U.S. Const. amend. VI; La. Const. art. I, § 16. "While hearsay should generally be excluded, if it is reliable and trustworthy and its exclusion wouid interfere with the defendant's constitutional right to present a defense, it should be admitted." State v. Gremillion, 542 So.2d 1074, 1078 (La. 1989); see also State v. Van Winkle, 94-0947, p. 6 (La, 6/30/95); 658 So.2d ~ot' s8~e~s~de: the :fundamental 198, 202. ("Evidentiary rules m'ay defense.") "Constitutional. guarantees .do . not . i2JSSLir~, th~ defendant the right to the • '.. • . ~. •. ;', • admissibility of any type of evidence; .'o.nlf:. • ,. • • 1, . . • • • . • • • • . that\ryhich' i.s." de~med . ; 1'" ... .... right to present a ' .... • • • . trustworthy and has • . probative value can be admitted." State"" Go:vew:ncfr,, 331 So.2d 443 1 449 (La. 1976). Article 804 of the Louisiana Code.·of Evid~nce ·pro~ides certain ~xceptions to the general rule against the unavailability of hearsay statements, where the declarant ls unavailable. The article provides, in pertinent part: 15 •·,I ,. :-;\•' ......:.. ··:'· '. :·. ,_ A. Definition of i.mavaiie1biiitf.: . Except as otherwi$e provided by this Code, a declarant is "unavailable as a .witness" when the declarant cannot or will not appear in coi.irt' a~~d·/t~~st!fy to th~ substance of his · ·· · statement made outside of court · · B. Hearsay exceptions.'· The foiibwing are not excluded by the ~1earsay ru!e if the declarant ls unav01Jlable 9s .a. witness~ .··. ' : : .·· (3) Statement against inter.est ·A statement which was at the time of its making so far con~rary to. th~ qeciar~:m~'s pecy.niary 9r proprietary interest, or so far tended to subject him to>civii or' criminal liability, or to render invalid a claim by h.im agaj_nst .another, that a reasonable man in his position would not· have· made the si:ater11e11t ·unless he believed it to be true. A statement tendin_g to expose the:. d.~c:l9r9nt to criminal liability and offered to exculpate the accused ··1s ·hot admlssibie unless corroborating circumstances clearly indicate. th~ trq;;fyvq~thJ.neg; of ~h~ state_ment. . • • ' f • • : • :. • '· ~·:· • • ; l • ' • • • • • Admission of statements against .intt;r~::;tr;a.s ~Jr'!dit.ional exception to the hearsay . . . . . .. ''·· deciarant .Jl)e rule, is based on necessity and tru.styv.orthlP~?s:>< ' '. • •. 'unav(;)ilapility of the • . . .• ~ r - • •· : # • : I... ... '. . requirement generaily establishes the .ne~.d to adrnit.. ·his out-of-court statement. The .. . : ., ' ' 1· ' "against interest" requirement assures some de·gree qftrustworthinessr because a person ordinarily does not make a statement ..that . .is cli$advantageous to himself without . , ,• ... the stqtement Js trL~e. State v. Hammons, 597 So.2d substantial reason to believe that . .... ' . . ' ,. 990, 996 (La. 1992). When the statement is one . againRt . '.cil~. dec!arant'.s penal interest, the circumstanc.es surrounding the making of the st~ternent may be significant in determining its trustworthiness. If a dec!arant adm.~ts sol~~ re~:;ponsibility for a serious crime, the statement is generally prirna facie against interest ,3(,1 as t6 satisfy this requ~rement of the rule. Howeverr if the statement is clearly seif-servir1g, as when the declarant is seeking favorable treatment for himself in return ·fc;r, ~o~p~iation, the statement may be not against his interest and thus mayfafr bu~i'd;e: the deemed exception:· . Hammons, 597 So.2d at 996. When the statement tending to expose the declarant to criminal liability is offered to exculpate the accused, Article 804B(3) expressly requires corroborating circumstances indicating trustworthiness. The burden of satisfying the corroboration requirement Is on the accused. That burden may be satisfied by ev!dence independent of the statement which tends, either directly or circumstantia!iyr to establish a matter asserted by the 1.6 .. ·' ... .. statement Circumstantial evidence of the vt:~rac(tY.. ,of the~· deClarant as to the portion of .. :·y,;-~. . ·. ":-.. ·.: . the statement exonerating the accus~d circumstances indude statement:; . :js .generally.· $Ufficient. . Typical corroborating i: . :; ·-, ;: • • ~ ;', , ·:··: : '. : I ,. . . agaln~t. thi;:~.qedar.ant's :: : · . ': ·. . · ... "• . '.·:: l_riten-:st to an u(1usual or . devastating degree, or the dedarant's repE1 ~tlpg ~)f_;c9nslstent statements, or the fact that to ...falsify .fqr the benefit of the accused. . . . mo~ivated . the declarant was not likely . . ' Hammons, 597 So.2d at 996-·997. ~ ··.· ·.. · ... ...... ·.· ...· · .. .· The State argued that Kimberly. could. riot ,~orrobor_ate the trustworthiness. of Bill/s . .. . . . . . statement. Defense counsel argued that th~ .corr-obo.ratiog evidence was that Billy lived In : ! ..•• ., • . • \ Linda's home, had access to the computer,. ~mdJtiat: a' PQst.,it note was found near Linda's . : . .. '. ' . . . . . . . . . :~ ' computer with social security numbers writte.n ,on !tin hanqwritjng other than that of the • • :-.: .• •.• • . . . . ·: .. . t defendant. 5 The State responded the;it th~ ~m~y r~Jev.ant evic:!Eln!:e presented at tria~ was ... ·. that there was sibling rivalry between :the·wq. " r!rotrr~rs. ·and argued that there was no .. '' : . .. . .. .. .. . . ~ : evidence that Billy hated the defendant . sornuch.. so. that. he w-qs go·ing to get him back, ' . ' . . ; ~ that he beat him, or constantly .threatened . .: ';•' Af.ter both parties presented their .,;h~rri, arguments, the district court ruied in the State's f:avor. · We have reviewed the record and find that the defendant failed to satisfy the corroboration requirement under Artid.e · 8048(:3);· ·· There. was no evidence that' '· Bi~ly . . ·.(:. :: . : .. ·:· followed up on his alleged threat. . In fact1 in Kimberly's proffered testimony; she indicated that Billy was unable to rent the vehicle he daimed he pianned to rent on the stolen credit card. There was also no evidence th~t Billy was referring to was the ca~d thE; credit Citibank credit card at issue. The parties stlpuiated that ea~h iac~essibie solicitations are delivered to Linda's .mqilbox,,, ..vvhich Is • • : • 1 : '.. • •• ' • • ~ ·~ • •• ', ' . : ! • • multip~e credit card to· the household • "~\ilii1~c;'ri~!fy, Ki'r~b~~fi testified that Billy made this residents as well a·s the. general pub He..' statement to her around the end .of • month, Oc'cob~r.,_. The appli~atipn fo~ ........ ,: ..... . \ the Citibank credit card . at issue was submitted Septer:nb~r 26, 20i1. ·syU1€-; ~p.d .of October, the ·defendant, who l • • • • . ···.· . . . •• · - ... .. 1' . . . 5 Linda testified that between September 201:1 arid :.January 2012, she found a Post-it note near her computer (the defendant has his own· computer in his room) that hadi her social security number and her noted above, she husband's social security number written ·on it She did not recognize the handw~iting. · ' '. and Polo had been divorced since the early l990s. I As I .. J,7 ' ... .·.• •.·. stipulated to using the Citibank credit card, ha~ ..already made charges exceeding the . . card's $12,000.00 limit. Moreover, BH!y's :··--·;·'. ~t~tE~ri~{~ht?·\~1;;,s that he intercepted . .. . . :· : cards in the ~.~·. mail, not that he used Polo's information .In 01·oer to .apply for them, Because we find the statement by Kimberly that the defendant sou9t:it. ~o iptroduce was not trustworthy, there was no violation of his constitutional right · t9 pr~sent·. a defense, . ···. ,. ... assignment of error is without merit. . .·· ...... · .. ~~ Accordingly, this . HABITUAL OFFENDER.CO.NVICTION In his third assignment of error, the defendant .argues that the State failed to . ' "' ; prove that he committed the predicate· offen,se$. U?ed to. support his habitual offender ·.··· • . .· : '· .·'' .'.·.= ' conviction. Specifically, he complains thatthe State's exhibits fail to prove his identity as the same person who pied guiltyto the predicate .offetises. · • • ., .. ! ' : • ',• • I' To obtain a multiple-offender. •adjwdic~t!O!\.,' the• ..State is: ·required to establish both • • ,: « • \ • ' • I the prior felony conviction and that the defend.ant ,·ls t.he same person convicted of that • ' • ' . •. • ~ '•• ~ ; . . • ~ \ I • . felony. In attempting to do so, the StQte .may. presef)t: (1) testimony from witnesses; . . ' ; (2) expert opinion regarding the fingerprints of the.defendant when compared with those in the prior record; (3) photographs in the duiy autt1entjcated record; or (4) evidence of identical driver's license number, sex, race, and dr:;ite of birth. State v. Payton, 2000. . ' 2899, p. 6 (La. 3i15/02), 810 So.2d 1127, 1130. ,.The ..Habitual Offender Act does not require the State to use a specific type of evidence in order to carry !ts burden at the by ·any competent evidence. hearing, and the prior convictions may be proved Payton, 2000-2899 at 8, 810 So.2d at 1132, Herein, the ·habitual offender:. bill:· 6i' ::\ntS.~r;1~tio~.. ~!l~g~d convictions: (1) 2005 guilty plea ·to.:fo;~~·ry the 32nd JDC, Terrebonne Pa.rish; the following prior '(j·· ~ci~'~ts): ·~~·~er: do~ket ·nurnber 424A62 (2) :ioo4' g~i'lfy"p!e~ 'to forgery under docket in numb~r 02-5152 in the 24th JDC, Jefferson Parish; ·and (3} 2.004 guilty plea to identity theft under .~ docket number 445,985 in Orleans Parish, • ' . • ·. . . • 1' At trial, the parties stipulated that the defendant:. is the same Leopold Charles . ' Lacoste, II, who pied guilty to the offenses listed in the habitual offender bill of information. The district court could properly take that-sti~uiation into account in finding 1.8 ·:·. ·;: i that the State thus presented sufficient: proof at the habitual offender hearing that the defendant was the same person who. h~~. pied gu~tfy. to the predicate offenses. See · .·. ) '~h()!~2\ 8'?~~. '-'-i121"' 1 ·134(r .. 161:\6 t Staev. Brown, 2011 -... _ ,.p. 2('la,..::/+ ,.~:-'·'~~~tL~'G ... -L,..L.<.. ·._percu11am. Moreover, at the habituul offender nearh:1gr for each ..of ·these convictions, the State submitted into evidence certified copies of the._oms of information and minute entries. The State also called Angela Hebert, employed with the Department of Public Safety and Corrections, Division. of Probation and Parole, . to testify. : '. . Hebert testified that their records . convict!on, arre;;t report, rap sheet, fingerprint contain certified court minutes of the. .·. .. cards, AFIS photographs (booking photographs),. '.·background information, and any forms . . .. signed by the defendant. She ·did not supervlse the defendant, but the officer who supervised the defendant most recently was·det;eased at the time of the habitual offender hearing. '·. ·:":' 1 In connection with the defend.anes. ._2004 ·guHty :Plea to Identity theft, Hebert s records indicated that the individual who pied guilty to tha_t offense had a da.te of birth of 1 April 13, 1966, and that the last four digit$ otnis social security number were '2056," Her records contained a photograph of the. individl.,.lal... who pied guilty to that offense, and she identified the defendant as that individual . In connection with the 2004. guilty pl~a to fqrgery, Hebert's records indicated that the individual who pied guilty to that offense had a date of birth of April 13, 1966, and the same social security number as that as the individual who pied guilty to the 2004 guilty ...... plea to identity theft in Orleans Parish. · In connection with the 2005 individual who pied guilty had "guilty, pi~a ''to' ·fbrgery, Hebert indicated that the a· date ~i tii\+.!i; i:>·f.:Aph'1· ,.i3, .1966; and digits of his social security number that the 1ast four were 'a2cis6~" .. ~~ihe ·i.cle'~tified. the defendant as being the same individual as that in the photograph .in the record as well as being the same individual in the photographs in the records for the other two predicates. The State introduced evidence of the defendant's prior convictions that contained identical personal .. information about the defendant as the personal· information found in the bill of information of the defendant's instant conviction, The. bills of information for ; : '• the instant offense and two of the predicate offenses llst the defendant's race as white, . . . his sex as male, and his date of birth as Apr~i 131 19:66. The bili of information under docket number 445r985 does not indude any in.formation related to race, sex, or the defendant's date of birth. Hebert1s testimony corroborated the State's exhibits establishing the defendant's identity on the predicates, Additionally, Hebert identified the person in the photographs in her records for ail three predicates as the defendant Accordingly, the evidence introduced by the State at the habitual offender hearing was sufficient to establish that the defendant was the same person who pied guiity to the three prior offenses. Therefore, this assignment of error is without merit. CONVICTION, AFFIRMED. HABITUAL OFFENDER ADJUDICATION, ··. . .. .. · . ·.. · ', 20. .. :· ·.· •' ' . .. . : . . .' ~ ' ;. '. AND SENTENCE STATE OF LOUISIANA NO. 2014 KA 0499 FIRST CIRCUIT VERSUS COURT OF APPEAL LEOPOLD LACOSTE, II STATE OF LOUISIANA Welch, J., concurs. ~gree with the majority opinion on all issues, except with regard to the exclusion of hearsay testimony by the trial court. The defendant sought to prove that it was actually Billy who applied for and obtained the credit card at issue. When the defendant called Billy to the witness stand, Billy asserted his 5th amendment right against self-incrimination. At that point, the defendant called Kimberly to the witness stand in an attempt to introduce the statement made by Billy through her testimony. The trial court refused to allow the testimony in the presence of the jury apparently on the basis that it constituted hearsay testimony. The testimony was proffered and essentially established that Billy was extremely angry at the defendant because the defendant had gotten him kicked out of their mothers' home and that Billy was going to get back at the defendant by using credit card that Billy had intercepted in the mail and that the defendant would be blamed since he had a record of such conduct. Once Billy invoked his 5th amendment right to remain silent, Billy's statements to Kimberly were admissible as a statement against interest-an exclusion to the hearsay rule. See La. C.E. art. 804 (B). However, since the defendant had already conceded to using the credit card prior to the statement being made by Billy, the error in not admitting the statement was harmless. See La. C.E. art. 103(A). Therefore, I respectfully concur.
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