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State v. Malmay

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

STATE OF LOUISIANA Appellee
v.
RACQUEL MALMAY Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 348, 139 Honorable Katherine C. Dorroh, Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant

          RACQUEL MALMAY Pro Se

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee

          MALLORY RICHARD SUZANNE M. WILLIAMS Assistant District Attorneys

          Before PITMAN, STONE, and STEPHENS, JJ.

          PITMAN, J.

         A trial court convicted Defendant Racquel Malmay of felony theft and sentenced her to five years at hard labor, suspended, with three years of supervised probation. She was also ordered to pay $9, 283.26 in restitution, court costs and $50 to the Indigent Defender's Office, or to serve default time of 30 days in jail. Defendant appealed, but her appellate counsel filed a motion to withdraw and a brief, in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we grant the motion to withdraw and affirm Defendant's conviction. We vacate Defendant's sentence and remand to the trial court for resentencing.

         FACTS

         On May 15, 2017, the state filed a bill of information charging Defendant with felony theft in violation of La. R.S. 14:67. On September 28, 2018, it filed an amended bill of information, alleging that on or about August through December 2016, Defendant committed a theft of monies of a value between $5, 000 and $25, 000, belonging to Eric Odom.

         A bench trial was conducted on September 28 and October 5, 2018. Eric Odom testified that he is the president of Trio Fabricators, Inc., a construction company. In the summer of 2016, he hired Defendant as a bookkeeper and to "help streamline the flow of the company, " which included reviewing invoices and approving new vendors and payees. He stated that Defendant had access to the company's financial information and funds. Noting that Defendant's employment agreement was verbal and not in writing, he could not remember the exact amount Defendant was to be paid, but that $4, 000 per month "sounds about right." He paid Defendant by checks, which were written by Defendant and signed by him. He noted that there was no set time of the month that she was paid; rather, she was paid when funds were available.

         Odom further testified that in December 2016, he noticed that the company had made payments from its operating account to an unknown credit card account. He asked Defendant about these payments, and she responded that the account was for a company she owned. He then terminated her employment and her access to the company's bank accounts. He noted that he never authorized Defendant to transfer money to her credit card account. He was able to cancel two $800 transfers. On the advice of his accountant, he hired Sarah Warren, who worked at his accountant's firm, to review the company's books. Based on Warren's findings, he contacted law enforcement.

         Warren testified that she noticed a pattern of inconsistent and fluctuating payments made to Defendant. With respect to payroll checks, Defendant was paid $30, 200 from June 21 to December 1, 2016. The total amount paid to her credit card account was $10, 883.26.

         Detective Jeremy Jordan of the Shreveport Police Department testified that he works within the Financial Crimes Task Force and investigated this case. He stated that from June 21 to December 1, 2016, Defendant received $30, 200 in payroll and reimbursement checks. He found that this exceeded the amount Odom agreed to pay Defendant, i.e., $4, 000 per month, by $2, 200. He testified that from September to December 2016, $9, 975 was transferred from the company's ...


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