On Appeal from The 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. 11-09-0846 The Honorable Donald R. Johnson, Judge Presiding
Hillar C. Moore, III District Attorney Cristopher J.M. Casler Assistant District Attorney Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, State of Louisiana
Lieu T. Vo Clark Mandeville, Louisiana Attorney for Defendant/Appellant, Deborah Stokes
BEFORE: McDONALD, GRAIN, AND HOLDRIDGE, JJ.
The defendant, Deborah Stokes, was charged by bill of information with theft of five hundred dollars or more, a violation of Louisiana Revised Statute 14:67B(1) (prior to its amendment by 2014 La. Acts No. 255, § 1 and 2010 La. Acts No. 585, § 1). The defendant waived her right to a trial by jury and was found guilty as charged after a bench trial. The trial court denied the defendant's motion for new trial and sentenced the defendant to four years imprisonment at hard labor, then later denied a motion to reconsider the sentence. On appeal, the defendant contends that the trial court erred by admitting an affidavit into evidence and by denying the motion for new trial and the motion to reconsider the sentence. The defendant also asserts that her sentence is unconstitutionally excessive. We affirm the conviction and sentence.
In June of 2008, the defendant was hired to be the in-home caregiver of Jean Matherne (the victim), a 91-year-old woman in declining mental and physical health. The defendant's responsibilities included cooking and cleaning for the victim, assisting her with her daily medications, and taking her to appointments. The defendant was initially hired to work six hours per day, seven days a week, and was paid $11.00 per hour, totaling $462.00 per week.
In August of 2008, family members of the victim decided to place her in an assisted living facility, which would be better equipped and staffed to care for her. The defendant was advised by the family that her employment may be terminated. The son-in-law of the victim described her as "anxious to move" out of her house; however, within weeks of moving into the assisted living facility, the victim abruptly left and returned home in the care of the defendant. The victim contacted her daughter and accused her and her son-in-law of trying to steal her money. She then revoked the power of attorney previously granted to them; and, according to the defendant, gave a power of attorney to the defendant, made the defendant the sole beneficiary of her will, and gave the defendant an annuity for $150, 000.00.
Approximately one year later, while the victim was making a deposit at American Gateway Bank, she expressed concern to a bank employee about her account balance. An unusually large withdrawal from the account prompted the bank manager at the time, Renea Riley, to further investigate the use of the account. The review identified numerous checks that were cashed by the defendant as well as transfers from the victim's account to an account in the name of a business, Jeremiah Sitter Services, previously incorporated by the defendant. The transactions were considered questionable due to their amounts and frequency.
Riley requested a meeting with the victim to discuss the matter. Although not invited, the defendant also attended the meeting. The victim had no recollection of the questionable transactions, but the defendant offered various explanations, including the claim of providing overnight care for the victim. During the meeting, the defendant left the bank, returned with a cashier's check for $10, 000.00, and gave the funds to the victim.
Riley reported the matter to the East Baton Rouge Parish Sheriffs Office and the case was assigned to Detective Daniel Luckett of the Sheriffs Financial Crimes Division. Detective Luckett interviewed the victim and, after reviewing the account information, identified numerous discrepancies between the ledger maintained by the victim and the checks actually transacted on the account. Checks that were originally made payable to companies such as Cox Communications or Entergy had been altered to be payable to the defendant or Jeremiah Sitter Services in significantly greater amounts. The victim could not recall any of the altered checks. Detective Luckett estimated that the total amount of the theft from the account was $84, 000.00. The defendant was arrested shortly thereafter.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In a combined argument for the first two assignments of error, the defendant argues that the trial court erred in admitting an affidavit as a business record in violation of the Confrontation Clause. The affidavit, captioned "AFFIDAVIT OF FORGERY, " was executed by the victim at the request of American Gateway Bank and includes a statement from the victim that the defendant "may have stolen" the victim's checks. The bank manager testified that such affidavits are routinely executed when a customer claims that transactions were unauthorized. Because the victim did not testify at trial, the defendant objected to the affidavit as a ...