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State v. Folse

Court of Appeals of Louisiana, First Circuit

September 21, 2018

STATE OF LOUISIANA
v.
TYRONE FOLSE

          Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No. 689, 846 The Honorable Randall L. Bethancourt, Judge Presiding

          Aaron P. Mollere Reserve, Louisiana Counsel for Defendant/Appellant Tyrone Folse

          Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Counsel for Appellee State of Louisiana

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          THERIOT, J.

         The defendant, Tyrone Folse, was charged by bill of information in district court docket number 689846 with home improvement fraud when paid an amount of one thousand five hundred dollars or more, a violation of La. R.S. 14.202.1(A) and (F)(1).[1] He pled not guilty and, after a trial by jury, was found guilty as charged. The trial court denied the defendant's motion for post-verdict judgment of acquittal and motion for new trial. The defendant was sentenced to five years imprisonment at hard labor and ordered to pay $2, 700.00 of restitution within six months of his release, or in default thereof, to serve an additional two years imprisonment at hard labor. The trial court further ordered that the sentence be served consecutive to any other sentence. The defendant now appeals, assigning error to the trial court's denial of a challenge for cause to strike a juror, the admission of his pretrial statement, statements by the prosecution at trial, the constitutionality and legality of the sentence, and the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.

         STATEMENT OF FACTS

         Don Peter Hebert, the victim herein, entered into two separate contractual agreements with the defendant and his fencing company, TNT Fencing. As to the initial contract, dated January 18, 2014, the defendant agreed to build a wooden fence around Hebert's residence, located at 3189 Mathilde Marie Drive in Gray, Louisiana. Hebert indicated that the work for the initial contract was completed. On May 30, 2014, Hebert and the defendant entered into the second contract, in which the defendant agreed to install ornamental fencing and gates. In regard to that agreement, the total contract price was $3, 000.00, and Hebert made an up-front payment to the defendant of $2, 700.00. In accordance with testimony by Hebert and photographic evidence, no work was performed in regard to the May 30, 2014 contract.

         ASSIGNMENTS OF ERROR

         The defendant cites seven assignments of error:

1. The trial court erred in failing to strike Juror Shanida Kanach for cause since Ms. Kanach admitted to being unable to fully read and understand the English language.
2. The trial court erred in allowing the defendant's statement to be introduced over the objection of defense counsel since the state failed to read the defendant his Miranda[2] rights prior to taking his statement.
3. The trial court erred in failing to strike prejudicial statements made by the prosecution and failed to give an order for the jury to disregard the same.
4. The trial court's sentence of five (5) years on each count to be served consecutively is grossly disproportionate, excessive, cruel, and unusual.
5. The trial court erred in failing to grant the defendant's motion for a new trial since the evidence was not sufficient to uphold a conviction. The state failed to prove each and every element of the offense charged.
6. The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.
7. The trial court erred in denying the defendant's motion for reconsideration of sentence to cure an excessive and illegal sentence.

         STTFFTCIENCY OF THE EVIDENCE

         In assignment of error number five, the defendant argues that evidence was not sufficient to uphold the conviction. Thus, he asserts in assignment of error number five that the trial court should have granted his motion for new trial. As to each of the three cases, the defendant argues that the State failed to prove the statutory element of "greater than $1, 500.00" as well as whether no work was done after receiving payment. He argues that the State's assertion at trial that any forty-five day period of no work was sufficient to constitute a violation of La. R.S. 14:202.1 is a misreading of the statute. In that regard, he argues that the statute is clear and unambiguous in that the legislative intent is to charge a defendant if zero work is done on the contract. He claims that as to each contract, a lot of work was done on each parcel of property that he entered into a contract to make improvements thereto.

         As to the instant offense involving the contract with Don Peter Hebert, the defendant claims that Hebert paid him $10, 000.00 out of the $14, 000.00 contract price as to the first contract with Hebert. He claims that there was no evidence to prove that the initial contract was amended or that there was any settlement. Thus, he contends that Hebert has a remaining balance owed on the initial contract and therefore was not defrauded of anything of value. He notes that the second contract was entered into for another job, for which Hebert provided the defendant with $2, 700.00 out of the $3, 000.00 contract price. In that regard, he argues that the State failed to show that forty-five days of no work lapsed due to the fault of the defendant. He contends that there was testimony that Hebert asked him to sell the fencing that he purchased, which he argues is an indication that Hebert did not wish to have any work done at all under the second contract.

          When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to a retrial under Hudson v. Louisiana,450 U.S. 40, 43, 101 S.Ct. 970, 972, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proven beyond a reasonable doubt. When the entirety of the evidence is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion of trial error issues as to that crime would be pure dicta since those issues are moot. However, when the entirety of the evidence is sufficient to support the conviction, the accused is not entitled to a retrial, and the reviewing court must then consider the other assignments of error to determine whether the accused is entitled to a new trial. If the ...


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