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State v. Nevers-Hawkins

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

STATE OF LOUISIANA
v.
SHAWANDA MARIE NEVERS-HAWKINS

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 14, 307, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

          Bridget A. Dinvaut Justin B. LaCour COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA

          Prentice L. White COUNSEL FOR DEFENDANT/APPELLANT, SHAWANDA MARIE NEVERS-HAWKINS

          Judges Susan M. Chehardy, Robert A. Chaisson, and Stephen J. Windhorst

          SUSAN M. CHEHARDY CHIEF JUDGE

         On appeal, defendant challenges her conviction and enhanced sentence. For the following reasons, we affirm.

         Procedural History

         On August 8, 2014, the St. John the Baptist Parish District Attorney filed a bill of information charging Shawanda Marie Nevers-Hawkins, defendant-herein, with theft of assets of an aged person, in violation of La. R.S. 14:67.21. Defendant was arraigned on August 18, 2014, and pled not guilty. On February 16, 2016, the two-day trial commenced before a six-person jury, which found defendant guilty as charged. On February 18, 2016, after trial, defendant orally moved for a post-verdict judgment of acquittal that was denied by the trial judge.[1]

         On March 4, 2016, the State filed a multiple offender bill of information alleging defendant to be a "fifth" felony offender. On June 13, 2016, defendant stipulated to the allegations set forth in the multiple offender bill of information. The trial judge found that the State had presented sufficient proof that defendant was a third felony offender. Thereafter, a restitution hearing was held. The trial judge, however, postponed sentencing so that defense counsel could prepare a motion for new trial.

         On September 8, 2016, defendant orally moved for a new trial, which was denied that day. That same day, defendant waived sentencing delays, but withdrew her prior stipulation to the multiple bill.

         Consequently, on September 8, 2016, the State presented testimony supporting their allegations in the multiple offender bill of information. After hearing the testimony, the trial judge found that the State had proven that defendant was a third felony offender. That day, the trial judge sentenced defendant under La. R.S. 15:529.1 to twelve years imprisonment in the Department of Corrections.[2] Also, after finding defendant to be indigent, the trial judge ordered her to pay restitution of $20, 000.00 to the victim, in the amount of $150.00 per month. Defendant immediately orally moved to appeal. On September 19, 2016, defendant filed a timely Pro Se Motion for Appeal, which was granted the next day. This appeal follows.

         Facts

         At trial, Barbara Sylvester testified that she was born on October 17, 1948. At the time of trial, Ms. Sylvester was a sixty-seven year old retiree, living alone, on a fixed income from retirement and social security disability. Ms. Sylvester testified that she had known Shawanda Marie Nevers-Hawkins for most of Ms. Hawkins' life because they lived in the same neighborhood and Ms. Sylvester was friends with Ms. Hawkins' mother.

         Ms. Sylvester explained that, on August 30, 2013, Ms. Hawkins called her on the phone and asked to borrow $1, 500.00 for an ice machine for "her restaurant." Ms. Sylvester agreed, and Ms. Hawkins came to her house to pick up the $1, 500.00 in cash. According to Ms. Sylvester, Ms. Hawkins promised to pay her back the next day.

         Later that day, however, Ms. Hawkins contacted Ms. Sylvester asking to borrow an additional $18, 500.00. Ms. Sylvester testified that Ms. Hawkins stated that she was the owner of 3LJs Café in LaPlace, and that the money to pay Ms. Sylvester back was going to come from credit card sales at the business. Ms. Hawkins drafted a 'promissory note, ' providing that she was borrowing $20, 000.00 on August 30, 2013, which would be repaid, plus an additional $20, 000.00 for a total of $40, 000.00, by September 30, 2013. Ms. Sylvester testified that she did not know how Ms. Hawkins intended to use the loan money but that Ms. Sylvester did not intend to invest money in 3LJs Café.

         On the evening of August 30, 2013, Ms. Hawkins and Ms. Sylvester went before a notary public and signed the note. Afterward, Ms. Sylvester went to her bank, withdrew $18, 500.00 from her savings account, obtained a cashier's check in the amount of $18, 500.00, and gave it to Ms. Hawkins.

         Ms. Sylvester testified that Ms. Hawkins did not repay her by September 30, 2013. Ms. Sylvester requested repayment from Ms. Hawkins via facsimile transmission on October 17, 2013 and October 24, 2013, to no avail. At trial, Ms. Sylvester testified that Ms. Hawkins has never repaid any of the $20, 000.00 lent to her. Ms. Sylvester testified that, in November of 2013, she went to the St. John Parish Sheriff's Office ("SJPSO"), filed a complaint that her money was stolen, gave a statement, and picked defendant from a photographic lineup as the person that stole her money.

         Detective Maurice Rodriguez of the SJPSO testified that, after Ms. Sylvester reported the incident, his investigation revealed that defendant did not own or operate any business in St. John Parish that would allow her to pay back the money as set forth in the promissory note, which was drafted by defendant. Based on his investigation and experience as a law enforcement officer, he concluded that Ms. Sylvester was a victim of fraud. Detective Rodriguez eventually arrested Ms. Hawkins, defendant herein, in June of 2014, and charged her with theft of assets of an aged person.

         Ashley Deroche, an employee of the SJPSO property tax occupational license department, testified that an occupational license is required by St. John Parish ordinance for any person wanting to conduct business in the Parish and that her department maintains records of occupational licenses. Ms. Deroche reported that SJPSO issued an occupational license, effective June 4, 2013, to Laquana A. Lewis as the owner of 3LJs Café Services and Sports Bar in LaPlace. Ms. Deroche further noted that there were no occupational licenses in defendant's name for 2013.

         After the State rested, Laquana Lewis, defendant's daughter, testified that 3LJs was a family-owned business, which she owned and defendant managed. At the close of the testimony and evidence, the ...


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