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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. 712, 011 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, J J.

          THERIOT, JUDGE

         The defendant, Tyrone Folse, was charged by bill of information in district court docket number 712011 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 eight 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 December 10, 2014, Larry Gale Wells, the victim herein, entered into a contract with the defendant to build a fence around his home located at 104 Linest Drive in Houma. Under the agreement, the defendant agreed to install approximately 250 feet of fencing for a total contract price of $10, 000.00. Two days later, Wells provided the defendant with a check for a down payment of $8, 000.00, and the check was cashed on that same day. The residence was still under construction at the time. The contract was later amended by mutual agreement to reduce the size of the fence by 35 feet, and to reduce the total contract price to $9, 000.00. As the residence was still under construction when the contract was executed, Wells contacted the defendant by phone in late February of 2015 to inform him that he could commence the work at that time. After additional phone contact by Wells, the defendant began the work in late March, after Wells had moved into the residence.

         Specifically, the defendant installed a twelve-foot fence around the patio (a puppy fence) and began forming the footer or concrete chain wall for the main fence. Wells indicated that the portion of the work described was done prior to mid-July of 2015 and that the defendant did not perform any additional work. He confirmed that the defendant did not complete the work under the contract. Wells ultimately hired someone else to complete the fence and was never reimbursed by the defendant for any portion of his $8, 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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