from the 22nd Judicial District Court In and for
the Parish of St. Tammany, Louisiana Trial Court Number
580761 Honorable Martin E. Coady, Judge
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
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
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. 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.
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.
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.
defendant did not testify at trial.
OF ERROR NOS. 1 and 2
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.
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.
La. R.S. 14:71.1, bank fraud is defined in pertinent part as
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.
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).
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.
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 ...