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State v. Hampton

Court of Appeals of Louisiana, Second Circuit

November 14, 2018

STATE OF LOUISIANA Appellee
v.
PATRICIA HAMPTON Appellant

          Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana Trial Court No. 44661 Honorable Glenn Fallin, Judge.

          LAW OFFICES OF CHRIS L. BOWMAN Counsel for Appellant By: Chris L. Bowman, Christy Joynor Walker, Colby L. Bowman

          DANIEL W. NEWELL Counsel for Appellee District Attorney H. RUSSELL DAVIS TERESA CULPEPPER CARROLL Assistant District Attorneys.

          Before MOORE, PITMAN, and GARRETT, JJ.

          GARRETT, J.

         The defendant, Patricia Hampton, was convicted of theft over $1, 500, in violation of La. R.S. 14:67. She was sentenced to three years at hard labor, with all but one year suspended, and two years of supervised probation. Restitution was ordered with a provision for early termination of probation upon payment of restitution. The defendant appeals. Finding merit to the defendant's assignment of error pertaining to her Batson challenges, we vacate the defendant's conviction and sentence. The matter is remanded for a new trial.

         FACTS

         In 2003, the defendant was hired by Mayor Eugene Smith as the payment clerk for the Water & Sewer ("W&S") Department of the Town of Arcadia ("the Town"). Her job duties included receiving payments in the form of cash or checks, logging the payments into the W&S computer system, printing out a daily report of payments, and depositing the funds into the Town's bank accounts.

         In 2010, a routine audit of the Town's records found discrepancies between the payments received and the deposits made for the W&S Department. The auditors advised the mayor of the situation. The matter was then turned over to the Office of the Inspector General of Louisiana ("IG"), which opened an investigation. It was ultimately determined that there was a discrepancy of $39, 076.60 between the amounts of W&S funds collected and deposited.

         Pending the investigation, the defendant was suspended without pay in October 2010. She was subsequently fired, effective February 1, 2011. On August 30, 2011, the defendant was indicted for theft over $1, 500, for the time period between July 2007 and August 2010.[1]

         Over the next six years, continuances were obtained by both the prosecution and the defense. Trial was finally held in September 2017. A six-person jury found the defendant guilty as charged. In January 2018, the trial court imposed a sentence of three years at hard labor; however, it suspended all but one year of the sentence and ordered two years of supervised probation. The trial court further directed that the defendant pay restitution to the Town, but specified that it would allow early termination of probation upon payment of restitution.[2]

         The defendant appeals, asserting 11 assignments of error. However, due to our disposition of the assignments concerning the defendant's Batson challenges, we do not reach most of them.

         SUFFICIENCY OF EVIDENCE

         The defendant contends that the evidence, viewed in the light most favorable to the state, did not support the jury's verdict beyond a reasonable doubt.

         Law

         When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. [3] The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord 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 elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La. 1992); State v. Pratt, 50, 152 (La.App. 2 Cir. 12/30/15), 184 So.3d 816, writ denied, 16-0123 (La. 1/25/17), 215 So.3d 262. A reviewing court, examining all of the evidence in the light most favorable to the prosecution, must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, supra; State v. Crawford, supra.

         The Jackson standard does not permit this court to substitute its own appreciation of the facts for that of the fact finder. State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165. It is not the province of the reviewing court to assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442; State v. Crawford, supra. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43, 788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Simon, 51, 778 (La.App. 2 Cir. 1/10/18), 245 So.3d 1149.

         The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. English, 51, 505 (La.App. 2 Cir. 8/9/17), 243 So.3d 1145.

         Circumstantial evidence is defined as evidence of facts or circumstances from which one might infer or conclude the existence of other connected facts. State v. Walker, 51, 217 (La.App. 2 Cir. 5/17/17), 221 So.3d 951, writ denied, 17-1101 (La. 6/1/18), 243 So.3d 1064; State v. Matthews, 50, 838 (La.App. 2 Cir. 8/10/16), 200 So.3d 895, writ denied, 16-1678 (La. 6/5/17), 220 So.3d 752.

         Direct evidence provides proof of the existence of a fact, for example, a witness's testimony that he saw or heard something. Circumstantial evidence provides proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Lilly, 468 So.2d 1154 (La. 1985); State v. Patterson, 50, 305 (La.App. 2 Cir. 11/18/15), 184 So.3d 739, writ denied, 15-2333 (La. 3/24/16), 190 So.3d 1190.

         When the conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. La. R.S. 15:438. When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676 (La. 1984); State v. Walker, supra; State v. Matthews, supra.

         When a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant's own testimony, an appellate court's task in reviewing the sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417; State v. Walker, supra; State v. Matthews, supra.

         In all cases where an essential element of the crime is not proven by direct evidence, La. R.S. 15:438, concerning proof by circumstantial evidence, applies. As an evidentiary rule, it restrains the fact finder, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La. 1982); State v. Matthews, supra.

         The elements of the crime of theft are: (1) there must be a misappropriation or taking; (2) the misappropriation or taking must be of a thing of value; (3) the thing must belong to another; and (4) the misappropriation or taking must be with the intent to deprive the other permanently of that which is the subject of the taking. The prosecution must also prove the value of the stolen thing because the value is determinative of both the severity of the offense and the degree of the punishment upon conviction. State v. Robinson, 51, 498 (La.App. 2 Cir. 8/9/17), 243 So.3d 1169.

         Testimony

         The evidence presented at trial established the access that different employees at Arcadia's city hall had to the W&S payment funds.

         At the start of her workday, the defendant, as the water collections clerk, would remove payments left in a drop box outside of city hall; this usually included payments that were mailed.[4] She would then unlock her office in city hall. The only individuals having keys to her office were the defendant, the mayor, and a cleaning lady. The defendant would unlock the cash drawer in her desk and count the drawer to ensure that she had $100 cash to start the day; these funds were used to make change when customers paid cash. Several witnesses, including the defendant herself, testified that she had the only key to the cash drawer. Aundrea Crane, who worked for the Arcadia police chief and had an office in city hall, testified that the defendant carried that key on her wrist on a band and that the defendant consistently locked the drawer. The defendant testified that she carried her keys on her wrist when she arrived in the morning and that during the workday she would hide the keys under a shelf in her office until she got ready to leave at the end of the day. The defendant testified that there was a lockbox in the cash drawer, that she had keys to both the lockbox and the cash drawer, and that she was the only one with control over that cash.

         During the course of the day, the defendant would take payments from customers at the water collections window of her office. She would enter the payment into the EasyBill program on her computer and give the customer a receipt. She and Louria Dell Jefferson, the water billing clerk whose office was across the hall from the defendant's, were the only two individuals who had the EasyBill program on their computer. At the end of the workday, a printout was generated showing the details of the day's payments, including the amount and the name of the customer. The defendant was then responsible for counting the funds, filling out deposit slips, and taking the funds to the bank for deposit into the Town's accounts.[5]She subsequently brought the deposit slip she got from the bank to the Town clerk, who entered the deposits into the Town's bookkeeping system.[6] At some point, the defendant began stapling the day's deposit slip to the report generated by the computer for that day. If the deposit slip and the report matched, the Town clerk had no concerns.

         Several other city hall employees would occasionally accept payments if the defendant was not at her collections window. If the defendant was gone for several days, Jefferson would take the payments. She gave the customers manual receipts, put the payments in a bag, and gave them to the defendant upon her return. According to Burris, if a customer came while the defendant was away, she would slide the payment under the defendant's window. Burris testified that she did not post entries on the defendant's computer. She also testified that she never saw Jefferson post anything to the system either. Mayor Smith testified that he did not recall ever receiving a water payment.

         Crane, who began working for the police chief in March 2009, testified that she would be asked to collect water payments if the defendant was in an employee meeting or if the defendant asked her to do so when she briefly left her office. However, she was not called upon to do so often. Crane said she would scan the barcode on the bill, and the customer's name popped up on the computer. She would place cash payments in the cash drawer and then give the customer change, if required, and a receipt. If the customer paid by check, she would usually hold the check and the bill for the defendant to enter. She also stated that Jefferson and Burris would take payments and had access to the defendant's office. She testified that, when Jefferson took a payment, she would not enter it in the computer; instead, Jefferson would write a receipt by hand, put the money in a bag, lock it up, and give it to the defendant upon her return. While Crane said she knew Burris made computer entries, it "seldom" happened.

         Testimony was given about the EasyBill computer program utilized in the W&S billing and collections. Mayor Smith testified that, shortly after he became mayor in 2003, EasyBill was acquired to replace a much more expensive system. However, EasyBill did not automatically integrate with the Town's accounting system as the prior system did; consequently, billing and collections data had to be manually entered into the accounting system. On occasion, there were issues with EasyBill which required that the program be remotely accessed by its vendor, David Carraway, from his office in Mississippi, so he could fix it.[7] Jefferson, the only other person who had EasyBill on her computer, testified that she had no complaints about the program.

         Burris recalled customers coming in "quite often" with a cancelled check and complaining about not receiving credit for payments made and the defendant telling them that she would correct it. Crane also remembered customer complaints about their bills not being correct and Carraway being contacted by the defendant and Jefferson for assistance; she said it "happened a lot." The defendant testified that she had problems with her computer with customers' names not showing up on the log sheet she printed. She said that she did not know about it until they complained about not getting credit for payments. She testified that, after verifying on the computer that the customer had credit, she would call Carraway, who would manually take care of it or tell her how to correct the problem. The defendant conceded in her testimony that Carraway had no access to or control of the money, whereas she did.

         Stephanie Perry testified that she and her partner, Tonya Wade, performed governmental audits in 2008, 2009, and 2010 to check whether the Town's books were materially correct. They initially discovered a minor discrepancy of $92 for January 2010. They informed the mayor, who asked them to investigate further. For January 2010, they found discrepancies on six days which showed differences between receipts and deposits totaling $868.30. For February 2010, discrepancies were found on 11 days with a difference between receipts and deposits of $1, 040.75. For March 2010, there were discrepancies on three days totaling $63.26. For July 2010, they found discrepancies on three days which totaled $262.09. For the four months they tested, the discrepancies totaled $2, 234.40. After determining that the water deposits did not match the water receipts, they informed the mayor of their findings and the matter was turned over to the IG Office.

         Tom Boulton, a criminal investigator for the IG Office, testified that when he took over the case, the defendant had already been indicted. He and two other investigators, Tracie Richard and Jennifer Monteleone, reviewed the evidence themselves and prepared a spreadsheet outlining the thefts. Monteleone also testified. She and Boulton described the documents and methodology they used in the course of their investigation. Among other things, they reviewed the Town's bank records, deposit records, monthly statements, and the Town's generated records showing the amount reported as collected and entered into the system for the water billing collections. Their spreadsheet covered the dates of June 29, 2007, to June 29, 2010. It showed a difference of $39, 076.60 between the amount deposited into the bank and the amount entered into the computer as collected. According to Monteleone's testimony, the deposits were less than what was entered into the computer on 307 days and more than what was entered on 34 days.

         David Watson, an investigator for the Bienville Parish District Attorney's Office, reviewed the financial records of the defendant and her husband. He found that they routinely deposited cash in their joint bank account and paid the defendant's car note in cash. This pattern continued even after the defendant was suspended without pay and she obtained other employment.

         The defendant's husband testified for the defense and was questioned about their financial situation. Of particular note, he stated that he had taken out loans against his 401k account - $1, 200.00 on August 9, 2007, and $2, 105.63 on December 6, 2010. He also had made two to three hardship withdrawals from his 401k account, which ranged from $900 to $1, 200. On cross-examination, he admitted taking money out of his 401k account every year between 2007 and 2010 for "serious" financial issues.

         The defendant testified. She said that, in addition to herself, payments were taken by the mayor, Jefferson, Crane, and Burris. She admitted that there was no reason to think that Jefferson took any money. As to Crane, the defendant stated that she did not enter payments often and, while she knew how to enter payments in the system, she did not know how to print a report at the end of the day. The defendant initially testified that, when Crane took payments, she would show the defendant what she entered; however, later in the defendant's testimony, she stated that, when Crane told her that she had taken a payment and entered it, she did not go into the computer and look at the entry. The defendant initially testified that Burris did not know how to print the report either. She then said Burris did know how and furthermore denied saying that Burris did not know how. She stated that Burris knew how but had never printed out a report. The defendant said she did not check the entries made by Burris. She also testified that the reports she printed at the end of the day were eventually boxed up and placed in storage. When Perry and Wade, the Town's auditors, requested reports, she printed out the ones on the computer instead of retrieving the ones that had been boxed up.

         Discussion

         The testimony established that the defendant was the only person who, on a daily basis, had physical possession of the cash that was paid on water bills, as well as control over the computer entries of the payments into the EasyBill program, the preparation of the deposit slips, the printing of the daily report, and the transfer of the funds to the bank. While other city hall personnel occasionally performed some of these functions, only the defendant exerted control over all of these steps.

         The defendant attempted to cast blame upon other city hall employees, especially Burris. However, it is noteworthy that the thefts at issue began in 2007, and both Crane and Burris, the only other persons who made entries of water payments into the computer system, did not begin working at city hall until, respectively, March 2009 and April 2009.

         The audits showed discrepancies in excess of $39, 000.00. However, the state was only required to prove that the defendant had stolen the threshold amount for felony theft, which the indictment stated was $1, 500. To satisfy this element of the offense, the state introduced during Boulton's testimony three exhibits which showed the differences between the amounts entered and the amounts deposited for the dates of November 6, 2007 ($835.30), January 13, 2009 ($546.32), and July 21, 2009 ($475.73). Added together, they amounted to an aggregate of $1, 857.35. Also admitted were deposit slips from those dates which the defendant conceded were in her handwriting.

         However, on each of these three dates, La. R.S. 14:67 provided that the threshold for the highest grade of theft was only $500, not $1, 500.[8] In fact, we note the spreadsheet used by the IG investigators in their testimony only went up to the end of June 2010, before the highest grade of theft was raised from $500 to $1, 500 on August 15, 2010. Consequently, the missing funds on the November 6, 2007 and January 13, 2009 dates alone were separately sufficient to prove felony theft. Furthermore, as noted above, neither Burris nor Crane, the only other persons known to enter water payments into the computer system, worked in city hall at those times. Additionally, the defendant admitted Crane did not know how to print the report at the end of the day; she admitted the same as to Burris. However, she then denied making her initial statement that Burris lacked that knowledge, and then said that Burris knew how but had never done it.

         We find that, viewed in the light most favorable to the prosecution, the evidence was sufficient to support the defendant's conviction for felony theft regardless of whether the amount was $500 or $1, 500. The jury's decision to accept the testimony of the state's witnesses and reject the defendant's self-serving testimony was a credibility call and entitled to great deference. The jury reasonably rejected the hypothesis of innocence presented by the defendant's testimony and no alternative hypothesis was sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. The defendant alone had unfettered access to the funds and the ability to conceal the thefts. This assignment of error lacks merit.

         BATSON ISSUES

         The defendant, who is an African-American woman, raises several assignments of error pertaining to mistakes made during jury selection, including improprieties in the handling of her Batson challenges.[9] We find merit in several of these complaints as the trial court committed legal error in its analysis of the defendant's Batson challenges and deprived the defendant of any meaningful consideration of her claims.

         To explain our ruling, we find it necessary to first set forth our understanding of how Batson challenges should be handled by the lower court. Next, we find it necessary to set forth, in some detail, what occurred in this case during jury selection.

         Law

         The Constitution forbids striking even a single prospective juror for a discriminatory purpose. Foster v. Chatman, __U.S.__, 136 S.Ct. 1737, 1747, 195 L.Ed.2d 1 (2016); Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008). An exercise by the state of its peremptory strikes to remove potential jurors from the venire panel solely on the basis of race violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). Batson and its progeny provide a three-step process to guide courts in evaluating a claim of racial discrimination in the voir dire process:

(1) a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race;
(2) if the requisite showing has been made, the prosecution "must demonstrate that 'permissible racially neutral selection criteria and procedures have produced the monochromatic result;'" and
(3) in light of the parties' submissions, the trial court must determine if the "defendant has established purposeful discrimination."
State v. Crawford supra

         A violation of a prospective juror's equal protection rights under Batson is proven by evidence of a racially discriminatory purpose, not a racially discriminatory result. State v. Dorsey, 10-0216 (La. 9/7/11), 74 So.3d 603, cert. denied, 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012); State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272. Thus, the sole focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. State v. Dorsey, supra; State v. Green, supra; State v. Simon, supra.

         To establish a prima facie case, the objecting party must show: (1) the striking party's challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the peremptory challenge was used to strike the venireperson on account of his or her being a member of that cognizable group. If the trial court determines the opponent failed to establish the threshold requirement of a prima facie case (step one), then the analysis is at an end and the burden never shifts to the proponent of the strike to articulate neutral reasons (step two). State v. Berry, 51, 213 (La.App. 2 Cir. 5/17/17), 221 So.3d 967; State v. Simon, supra.

         To satisfy Batson's first-step requirement for the establishment of a prima facie case of purposeful discrimination, a moving party need only produce "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." State v. Crawford, supra; State v. Elie, 05-1569 (La. 7/10/06), 936 So.2d 791.

         The establishment of a prima facie case is not to be so onerous that a defendant would have to persuade the judge - on the basis of all the facts, some of which are impossible for the defendant to know with certainty - that the challenge was more likely than not the product of purposeful discrimination. Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005); State v. Broussard, 16-1836 (La. 1/30/18), __So. 3d.__, 2018 WL 618741; State v. Sparks, 1988-0017 (La. 5/11/11), 68 So.3d 435, cert. denied, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).

         When a Batson challenge is made, it is incumbent upon the trial judge to address the challenge, either by ruling on whether a prima facie case of discriminatory intent has been made or by requiring race-neutral reasons for the strikes. State v. Myers, 99-1803 (La. 4/11/00), 761 So.2d 498.

         The burden of persuasion never shifts from the opponent of the strike. State v. Crawford, supra; State v. Nelson, 10-1724, 10-1726, (La. 3/13/12), 85 So.3d 21. However, after the opponent of the strike establishes a prima facie case of racial discrimination, the burden of production shifts to the proponent of the strike to articulate race-neutral reasons for its use of peremptory challenges. Not until steps one and two of ...


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