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State v. Irvin

Court of Appeals of Louisiana, First Circuit

September 24, 2018


          On Appeal from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Trial Court No. 35, 305 Honorable Thomas J. Kliebert, Jr., Judge Presiding

          Ricky L. Babin District Attorney Donaldsonville, LA Attorneys for Appellee, State of Louisiana.

          Donald D. Candell Lindsey D. Manda Assistant District Attorneys Gonzales, LA Christopher A. Aberle Mandeville, LA Attorney for Defendant -Appellant, Melba Irvin.


          HIGGINBOTHAM, J.

         The defendant, Melba Irvin, was charged by bill of information with four offenses: (Count 1) monetary instrument abuse, a violation of La. R.S. 14:72.2; (Count 2) bank fraud, a violation of La. R.S. 14:71.1; (Count 3) forgery, a violation of La. R.S. 14:72; and (Count 4) theft of the assets of a person who is aged, valued at $1, 500.00 or more, a violation of La. R.S. 14:67.21 (prior to repeal by 2017 La. Acts, No. 281, § 3). Counts 1 and 3 were subsequently nol-prossed by the State. The defendant entered a plea of not guilty to the remaining two counts and, following a jury trial, was found not guilty on count 2 and guilty as charged on count 4. The defendant filed a motion for new trial, which was denied, and then she was sentenced to five years at hard labor. The district court suspended the sentence and ordered the defendant to serve five years on supervised probation and to pay a $1, 000.00 fine, court costs, fees, and $31, 650.00 in restitution.[1] The defendant now appeals, challenging the sufficiency of the evidence presented by the State.


         In March 2015, Ascension Parish Sheriffs Office Detective Charles Naquin spoke with Nellie LeBlanc, the victim, who was in her late eighties and who informed him that the defendant had written multiple checks from the victim's account, most without her approval, in 2014 during the months of July through October. The victim informed the detective that she initially loaned money to the defendant to cover nursing home expenses incurred by the defendant's mother, who was the victim's best friend. The initial loan was in the amount of $4, 100.00 and included a check for $2, 500.00 dated July 14, 2014, and a check for $1, 600.00 dated July 21, 2014, both withdrawn from the victim's Capital One Bank checking account. Checks in the amounts of $2, 800.00, $7, 850.00, $4, 200.00, and $7, 650.00 were also withdrawn from the victim's Capital One Bank account. The victim had another checking account with Regions Bank, and checks in the amounts of $3, 500.00, $5, 500.00, and $2, 000.00 were withdrawn from that account. A cash withdrawal of $950.00 was also drawn from the Regions Bank account on December 31, 2014. According to the detective, the victim only recalled approving the first two checks, which she considered the amount loaned. She did not recall writing or signing any other checks, which totaled $34, 450.00.

         Detective Naquin continued his investigation by interviewing the defendant on June 3, 2015, and June 29, 2015. The defendant explained that all of the checks were part of a loan from the victim. She claimed that the victim had trouble filling out checks properly, so the defendant filled out the checks and the victim signed them. The defendant would drive to the victim's house, and the victim would come outside, sit inside of the defendant's vehicle, and sign the checks. According to the defendant, the victim did not want any family members to know about their arrangement. The detective testified that the defendant had several explanations for the $950.00 withdrawal from Regions Bank. At one point, the defendant claimed that the cash was used to pay for her mother's caretakers. She also claimed that the cash was payment for items that she sold to the victim, including a generator. The actual withdrawal slip stated that the withdrawal was for "home repairs." At the conclusion of the detective's investigation, the defendant was placed under arrest.


         In her sole assignment of error, the defendant argues that the evidence presented by the State was insufficient. Specifically, the defendant contends that the State failed to prove that her conduct involved the use or attempted use of a fraudulent scheme. According to the defendant, the victim voluntarily loaned all of the money withdrawn from her accounts. In support of this contention, the defendant claims that the victim's signature appears on each of the nine checks in question; the defendant made reimbursement payments; and days before trial, the victim acknowledged that she met the defendant to give her more checks than the two initial checks.

         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, 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. Code Crim. 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, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statute 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.

         At the time of the offense, Louisiana Revised Statute 14:67.21(B)(3) provided that theft of the assets of a person who is aged is the "intentional use, consumption, conversion, management, or appropriation of the funds, assets, or property of a person who is aged ... through the execution or attempted execution of a fraudulent or deceitful scheme designed to benefit a person other than the person who is aged[.]" The statute defined a "[p]erson who is aged" as any person sixty years of age or older. La. R.S. 14:67.21(A)(2). Theft is a specific intent crime. See State v. Odom, 2002-2698 (La.App. 1st Cir. 6/27/03), 861 So.2d 187, 195, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. Specific criminal 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). Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Henderson, 99-1945 (La.App. 1st Cir. 6/23/00), 762 So.2d 747, 751, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.

         Detective Naquin spoke with the victim a second time, one week prior to trial. At that time, the victim stated that she "had given some of [the other checks]" to the defendant. However, the detective also testified that when the victim made that statement, "she seemed a little confused at the time." The detective further explained that the victim "seemed to be having trouble remembering specific things and conveying ideas" and that she ...

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