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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. 711, 282 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 711282 with residential contractor fraud when the misappropriation or intentional taking amounts to a value of one thousand five hundred dollars or more, a violation of La. R.S. 14:202.1(C)(3) (prior to amendment by 2017 La. Acts, No. 281, § l).[1] [2] 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 four thousand dollars 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

         On January 7, 2015, Billy Burrow, Jr., the victim herein, entered into a contract with the defendant wherein the defendant agreed to install a privacy fence, consisting of a cyclone fence, around the backyard of his residence located at 127 Presque Isle in Houma. The defendant specifically agreed to install seventy-seven feet of wooden fencing at a height of six feet, using pine and two gates. The total contract price was $5, 500.00, and Burrow paid the defendant $4, 000.00 in cash up front as a down payment, for which the defendant provided him with a receipt. The remaining balance of $1, 500.00 was to be paid upon completion of the job. According to Burrow, the defendant never completed the work and did not reimburse Burrow any portion of the $4, 000.00 down payment.

         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[3] rights prior to taking his statement.[4]
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.

         SUFFICIENCY ...


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