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
L. Babin District Attorney Donaldsonville, LA Attorneys for
Appellee, State of Louisiana.
D. Candell Lindsey D. Manda Assistant District Attorneys
Gonzales, LA Christopher A. Aberle Mandeville, LA Attorney
for Defendant -Appellant, Melba Irvin.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
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. The defendant now appeals, challenging the
sufficiency of the evidence presented by the State.
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both withdrawn from the victim's Capital One Bank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850.00, $4, 200.00, and $7, 650.00 were also withdrawn from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.
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.
OF THE EVIDENCE
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
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
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
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 ...