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State v. Cousin

Court of Appeals of Louisiana, First Circuit

December 21, 2017


         Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana Trial Court Number 580761 Honorable Martin E. Coady, Judge

          Warren L. Montgomery, D.A. Matthew Caplan, A.D.A. Covington, LA Attorneys for Appellee State of Louisiana

          Gwendolyn K. Brown Louisiana Appellate Project Baton Rouge, LA Attorney for Appellant/ Defendant - Desmond Herbert Cousin


          WELCH, J.

         The defendant, Desmond Herbert Cousin, was charged by bill of information with bank fraud, a violation of La. R.S. 14:71.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for postverdict judgment of acquittal, which was denied. The defendant was sentenced to six years imprisonment at hard labor. The State filed a habitual offender bill of information. The defendant admitted to the allegations in the bill, and the trial court adjudicated him a third-felony habitual offender.[1] The trial court vacated the six-year sentence and resentenced the defendant to eight years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant now appeals, designating three assignments of error. For the following reasons, we affirm the conviction, we vacate the habitual offender adjudication and enhanced sentence, we reinstate the original six-year sentence and we remand to the trial court.


         On September 22, 2016, the defendant went to the Capital One Bank in Mandeville on La. Highway 22. He handed a check to teller Geraldine Johnson and asked her to cash it. The check was ostensibly a company check from Select Stone, LLC, a wholesale distributor of home improvement items including stone slabs, marble, and granite. The check was made payable to the defendant for the amount of $1, 929.00. The defendant was not a customer with the bank. Geraldine took the defendant's identification and noticed that he had a Berwick, Louisiana home address. She also noticed there was something a "little bit off' with the check, such as the different sized fonts between the defendant's typed name and the amount of the check in typed words.

         Geraldine took the defendant's I.D. and the check, told the defendant she needed to verify the check, and went to her supervisor's office. At that point, the defendant asked for his identification and the check back. Geraldine assured the defendant that she would be back shortly. Geraldine pulled the account number of Select Stone, LLC and called Melissa Capello, the company's office manager. Geraldine gave Melissa all of the information, and Melissa confirmed that the check the defendant gave her was not a Select Stone, LLC check, the defendant was not one of their employees, and she had never heard of him. Melissa told Geraldine it was a fraudulent check and to call the police, which she did. While Geraldine was on the phone with the 911 dispatch, the defendant again attempted to get his I.D. and check back. When Geraldine did not return these items, the defendant left without them, and was apprehended by the police just outside of the bank.

         The defendant did not testify at trial.

         ASSIGNMENTS OF ERROR NOS. 1 and 2

         In his first and second assignments of error, the defendant argues the evidence was insufficient to support the conviction for bank fraud. Specifically, the defendant contends the State failed to prove he had the intent to commit bank fraud. As such, the trial court erred in denying the motion for postverdict judgment of acquittal.

         A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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 (1979). See La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in La. C.Cr.P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001- 2585 (La.App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

         Under La. R.S. 14:71.1, bank fraud is defined in pertinent part as follows:

A. Whoever knowingly executes, or attempts to execute, a scheme or artifice to do any of the following shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than one hundred thousand dollars, or both:
(1) To defraud a financial institution.
(2) To obtain any of the monies, funds, credits, assets, securities, or other property owned by or under the custody or control of a financial institution by means of false or fraudulent pretenses, practices, transactions, representations, or promises.

         Bank fraud is a specific intent crime. See State v. Cunningham, 46, 664 (La.App. 2nd Cir. 11/2/11), 77 So.3d 477, 481. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La.App. 1st Cir. 1986).

         In State v. Forbs, 2007-1007 (La.App. 4th Cir. 4/23/08), 983 So.2d 954, 957, the court noted that La. R.S. 14:71.1 is similar to the federal crime of bank fraud, 18 U.S.C. § 1344, and that the intent necessary to sustain a conviction under § 1344 is the intent to deceive a bank in order to obtain money or other property. Further, specific intent is established "by the existence of a scheme which was 'reasonably calculated to deceive persons of ordinary prudence and comprehension, ' and this intention is shown by examining the scheme itself." Id., citing United States v. Green, 745 F.2d 1205, 1207 (9th Cir. 1984), cert, denied, 474 U.S. 925, 106 S.Ct. 259, 88 L.Ed.2d 266 (1985); see also Cunningham, 77 So.3d at 481.

         In his brief, the defendant notes the fact that the check was fraudulent was not challenged. Instead, he argues the State failed to prove he intentionally defrauded the bank or that he knew the check was stolen. The defendant suggests the State presented no evidence of "a scheme or artifice to defraud" because he presented only a single check to the bank. The defendant suggests that he mistakenly believed that the check was legitimately issued to him. The defendant further suggests that his "strange" or "odd" behavior after Geraldine took his check and I.D. to further investigate the matter did not prove he had the intent to defraud the bank. Finally, the defendant suggests that the defense offered a hypothesis of innocence that raised reasonable doubt; that ...

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