State of Louisiana Versus Shineda N. Taylor ( 2021 )

STATE OF LOUISIANA NO. 20-KA-215
VERSUS FIFTH CIRCUIT
SHINEDA N. TAYLOR COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-1692, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
April 28, 2021
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED
FHW
RAC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Matthew R. Clauss
Lynn Schiffman
John Carr
COUNSEL FOR DEFENDANT/APPELLANT,
SHINEDA N. TAYLOR
Bruce G. Whittaker
WICKER, J.
Defendant, Shineda N. Taylor, appeals her conviction for unauthorized use of
a motor vehicle, a violation of La. R.S. 14:68.4.1 She assigns as error the
insufficiency of the evidence to convict her. For the reasons that follow, we affirm
Defendant’s conviction and sentence.
The Jefferson Parish District Attorney filed a bill of information on March 21,
2019, charging Ms. Taylor with unauthorized use of a motor vehicle, in violation of
La. R.S. 14:68.4. Defendant was arraigned on March 26, 2019, and pled not guilty. 2
On January 13, 2020, the District Attorney filed a superseding bill of information
charging Defendant with unauthorized use of a motor vehicle, in violation of La.
R.S. 14:68.4 (count one) and simple kidnapping, in violation of La. R.S. 14:45 (count
two). Defendant was arraigned on the superseding bill of information on January
27, 2020, and pled not guilty. Trial was held before a six-member jury on January
28, 2020.
The testimony at trial revealed the following. Ms. Saundra Katz has owned a
small auto dealership, Boomtown Auto Sales (“Boomtown”), for approximately
twenty years. Boomtown is located on Airline Drive in Kenner, Louisiana between
1
In her February 7, 2020 motion for appeal, Defendant sought appeal from the “final judgment entered by
this court on February 6, 2020,” which was the date of sentencing. Defendant did not specifically seek to
appeal her January 28, 2020 conviction. Nevertheless, Defendant’s sole assignment of error pertains to her
conviction and not her sentence. Appeals are favored in law, and appeals should not be dismissed on
hypertechnical interpretations of a statute which can be reasonably interpreted to preserve the appeal,
particularly in the absence of any claim of prejudice by the opposing party. State v. Armant, 02-907 (La
App. 5 Cir. 01/28/03), 839 So.2d 271, 274. Accordingly, Defendant’s assignment of error is addressed
herein, and a full error patent review will be performed. See State v. Luckey, 16-494 (La. App. 5 Cir.
2/8/17), 212 So.3d 1220, 1224, writs denied, 17-432 (La. 10/27/17), 228 So.3d 1225 and 17-617 (La.
10/27/17), 228 So.3d 1234 (Wherein the defendant filed a notice of appeal from the final judgment entered
on the date of the defendant’s sentencing. This Court, pointing out that although the defendant did not
explicitly seek review of his convictions in his notice of appeal, his sole counseled assignment of error and
his three pro se assignments or error pertained only to his convictions, not to his sentences. This Court,
therefore, addressed defendant’s assignments of error concerning his convictions and conducted a full errors
patent review); see also State v. Raymo, 81-3151 (La. 09/07/82), 419 So.2d 858, 861 (sufficiency of the
evidence should be considered, regardless of how the error is brought to the attention of the reviewing court,
and since the double jeopardy clause prevents retrial when a reversal is based on insufficiency of evidence
due to the State’s failure to prove an essential element of the offense, a judgment of acquittal must be
entered).
2
The State amended the bill of information on November 14, 2019, to add “AKA Shineda T. Diaz.”
20-KA-215 1
Fairway Street and Tyler Street.3 Ms. Katz testified that Ms. Paulette Elwood,
Boomtown’s secretary, and Ms. Barbara Tyler had worked with her for a “very long
time.” Ms. Tyler’s cousin also worked as a salesperson at Boomtown.4
As of May, 2018, Ms. Tyler had been working at Boomtown as a salesperson
for about seven or eight years. Her job duties included, inter alia, selling vehicles
and conducting test drives with potential customers. She testified that, when she
conducted test drives, she directed potential customers to follow a particular route.
The normal test drive route took the customer/driver “out up Airline, down Williams,
and back around up through Roosevelt.” Ms. Katz confirmed that Boomtown
maintains a designated route for test drives and that, for insurance and safety
purposes, the designated route does not involve entering onto the interstate. Ms.
Katz testified that she never had an issue with a potential customer demanding to
take a vehicle onto the interstate prior to this incident.
On the day in question, May 7, 2018, Ms. Tyler testified that she was taking
her lunch break in the back of the dealership when she received an overhead page
that there was a customer in need of assistance on the sales floor. Ms. Tyler
responded to the request and identified the customer as Defendant. Ms. Tyler
testified that Defendant had a positive demeanor when she first encountered her;
“nothing out of the order.” She testified that Defendant arrived with a purse and a
backpack.5 Ms. Tyler testified that, after Ms. Elwood made a photocopy of
Defendant’s license,6 she—Ms. Tyler—accompanied Defendant on a test drive of a
white, 2006 Lexus.7
3
Ms. Barbara Tyler testified that Boomtown was located off of Airline, and she identified its location on
a Google Earth Map.
4
The trial transcript refers to Ms. Tyler’s cousin both as Ramon Murray and Raymond Nunnery; it
remains unclear which name and/or spelling is correct.
5
Ms. Tyler testified that she did not know how Defendant arrived at Boomtown, nor did she know
whether, after the conclusion of the test drive, Ms. Tyler ever returned to Boomtown to pick up a vehicle.
6
Both Ms. Katz and Ms. Elwood respectively testified that a photocopy of Defendant’s license was made
on May 7, 2018, prior to the commencement of the test drive. A copy of Defendant’s license, which Ms.
Elwood identified as the copy she had made on May 7, 2018, was entered into evidence.
7
Images of the vehicle test driven, as identified by Ms. Tyler, were entered into evidence.
20-KA-215 2
Ms. Tyler testified that after leaving Boomtown, they got onto Airline,
traveled down Williams, and headed in the direction of the interstate. As they neared
the interstate, Defendant asked Ms. Tyler if they could drive on the interstate. Ms.
Tyler testified that she explained that Defendant could not drive onto the interstate
because of insurance reasons. Ms. Tyler testified that after Defendant asked, “what
could [she] do,” she called her boss, Ms. Katz, who also told Defendant that they
could not get on the interstate because the insurance did not “go that far.” Ms. Tyler
testified that while Defendant was talking to Ms. Katz, Defendant turned away from
the interstate, onto Veterans Memorial Boulevard, seemingly headed back towards
Boomtown, as instructed by Ms. Katz, who remained on the phone. However, at
some point, as they were returning to Boomtown, Defendant made a turn, returning
them to Williams Boulevard, and again headed in the direction of the interstate.
According to Ms. Tyler, Defendant turned onto Veterans, headed towards
Roosevelt Boulevard, and then suddenly turned off Veterans and headed towards
Boomtown. She testified that she did not have the opportunity to jump out of the
vehicle because Defendant did not fully stop at stop signs and all of the lights were
green.8 Ms. Tyler testified that she was scared and asked to exit the vehicle multiple
times, but that Defendant refused to slow down or let her exit the vehicle. She
recalled Defendant bickering on the phone with Ms. Katz, some kind of escalation
concerning involving the police, stating that Defendant “thought that if she went
back, that we was [sic] going to have her arrested.” Ms. Tyler testified that once
Defendant became aware of the potential police involvement, “the situation just
became no better. She still wouldn’t go return me back.” Ms. Tyler testified that,
at this point, Defendant again made a U-turn and redirected the vehicle back towards
Veterans and the interstate.
8
On cross-examination, Ms. Tyler confirmed that she did not mention Defendant running through stop
signs in her written statement for the police, but reiterated that it did happen. Ms. Tyler’s statement was
marked for identification purposes as Defense Exhibit 1, it was not admitted into evidence.
20-KA-215 3
Ms. Tyler testified that, directly thereafter, Defendant drove the vehicle onto
the interstate. She re-iterated that all the lights on Veterans, leading up to the
interstate, were green so she could not have safely exited the vehicle, and that
Defendant repeatedly denied her requests to get out of the car. She testified that she
could not say exactly how many times she asked to get out of the car, but that she
had asked “plenty” and was just scared and “wanted to get out the car.” She
described incessant telephone bickering among her, Defendant, and the Boomtown
employees on the other end of the phone; “it just was going on and on.”9 She testified
that eventually she got the phone back from Defendant, but stayed on the call to keep
her coworkers apprised of her location and because she “felt like [her] life was in
danger.”
Ms. Tyler explained that she was panicked, believing that she would not make
it back home. She recalled Defendant entering the interstate at the Veterans on-ramp
near Lafreniere Park and “gunned the car.” Ms. Tyler testified that Defendant told
her that she wanted to drive the car to Gentilly, where Defendant would get out, and
then Ms. Tyler could drive the vehicle back to Boomtown. Ms. Tyler testified that
she told Defendant that she could not drive the car to Gentilly. She testified that she
knew that officers were en route and that she did not want to end up in a high-speed
chase. Therefore, as Defendant proceeded to “take off placing the Interstate,” Ms.
Tyler grabbed the steering wheel, pulled the vehicle to the side of the interstate, took
the keys out of the ignition, exited the vehicle, and began running. She explained
that Defendant then got out of the vehicle and began “hollering” at a “MAP driver”
nearby. Ms. Tyler testified that, at that point, while Defendant was out of the car,
she then ran back to the vehicle, got in, and drove back to Boomtown. She testified
that this was her first, safe opportunity to get away from Defendant. Upon returning
9
On cross-examination, Ms. Tyler testified that Defendant did not keep her from holding the phone or
speaking to her boss, Mrs. Katz, or colleagues at Boomtown.
20-KA-215 4
to Boomtown, where an officer was waiting for her, Ms. Tyler spoke to the officer
and provided a written statement. Ms. Tyler testified that, for some time after this
incident, she refused to conduct test drives because she was scared to get in the car
with someone for fear that a similar situation might occur.10
Ms. Katz testified that on May 7, 2018, she was working with Ms. Elwood
and Ms. Tyler at Boomtown. She confirmed that she called 9-1-1 because of an
incident involving a “customer” and Ms. Tyler while they were on a test drive. She
testified that she became aware there was a problem when she overheard Ms. Elwood
on the phone, saying, “you can’t do—go on the Interstate.” She stated that Ms.
Elwood then told her that she needed to take the call. Ms. Katz explained that she
was on speaker phone with Defendant and Ms. Tyler. She explicitly told Defendant
not to take the vehicle onto the interstate and to stay on the route designated for test
drives. She also told Defendant to return to Boomtown if she could not stay on the
designated route. Ms. Katz testified that Defendant refused to stay on the designated
route and also refused to return to Boomtown. She testified that Defendant, instead,
asked her about the amount of miles within the designated route. Ms. Katz told
Defendant that she did not know the exact mileage, but reiterated that Defendant
must keep to the designated route.
Ms. Katz testified that Defendant was not only upset that she could not take
the vehicle onto the interstate, but was also bothered by the fact that Boomtown had
taken a copy of her driver’s license. Ms. Katz informed Defendant it was standard
practice to make a copy of a potential customer’s driver’s license prior to a test drive,
but that she would be happy to return the copy of Defendant’s license to Defendant
upon the return of the vehicle. Ms. Katz testified that Defendant still did not return
to Boomtown at that time.
10
On cross-examination, Ms. Tyler testified that while Defendant did not have a weapon and did not
make any “threats of physical harm or otherwise,” “her actions showed it.”
20-KA-215 5
Ms. Katz testified that she continually pleaded with Defendant to safely return
Ms. Tyler to Boomtown, and that “at one point when [Defendant] was saying no, I
said, you are kidnapping her. We’re going to call the police. Bring her back.” She
testified that Ms. Tyler’s voice sounded terrified and that she asked for Defendant to
safely return Ms. Tyler “four, five, six times. I just kept saying bring us back Bea.”
Ms. Katz testified that Defendant just responded, “Well, you called the police.” Ms.
Katz explained to Defendant that she had not yet actually called the police, but that
she really would if Defendant did not return Ms. Tyler, “and she refused.”
Throughout the incident, Ms. Katz testified that she just kept thinking, “This
is terrible. This has never happened…They have your employee. They have your
friend, like a family member. Where is she going? What is she going to do? What—
this is—it’s terrible on our end because we don’t know what’s going on.” Ms. Katz
ultimately contacted the police and provided the officer with a written statement
upon his arrival to Boomtown. While she was providing her official statement, Ms.
Tyler contacted her.11 Ms. Katz testified that she handed the phone to the police
officer to speak to Ms. Tyler. Ms. Tyler was returning to Boomtown after getting
the vehicle back from Defendant. Ms. Katz testified that, when Ms. Tyler returned
to Boomtown, she was in shock, “she just sat there.”
Ms. Elwood testified that her job duties at Boomtown included GPS tracking,
answering phone calls, collections, and filing. Ms. Elwood recalled working on May
7, 2018, and making a photocopy of Defendant’s driver’s license. She testified that
Defendant took a 2006 Lexus, which was equipped with a GPS tracker, for a test
drive. She recalled receiving a phone call from Ms. Tyler, who sounded “panicked
and scared.” After giving the phone to Ms. Katz, who she testified also sounded
panicked and scared, Ms. Elwood began tracking the vehicle on a website,
11
On cross-examination Ms. Katz confirmed that at some point during the incident, the phone became
disconnected, she did not know by whom. When she later called back, Ms. Tyler answered the phone,
and they were able to speak.
20-KA-215 6
pinpointing the vehicle at several locations. She testified that it appeared the vehicle
was heading towards the interstate, and she eventually tracked it to the interstate.12
She testified that at 1:35 p.m., she was able to ping the vehicle between 2200-
2248 25th Street in Kenner and that the vehicle was in motion.13 At 1:36 p.m., she
was able to ping the vehicle at 2108 25th Street in Kenner and then, after two
unsuccessful attempts to locate the vehicle, she again located the vehicle driving
between 2200-2248 25th Street in Kenner at 1:40 p.m.14 The vehicle was next
located in motion on Veterans at 1:45 p.m. Ms. Elwood then testified that at 1:48
p.m., she was able to ping the vehicle on the interstate. She testified that it was
eventually stopped at this location on the interstate. The vehicle was next located as
driving on the interstate at 1:50 p.m. She testified that at 1:55 p.m., the vehicle was
on West Napoleon and traveling south towards Boomtown. She described Ms. Tyler
as “panicked and scared” when she returned to Boomtown.
Officer Brian Fogarty with the Kenner Police Department testified that on
May 7, 2018, he was dispatched to Boomtown regarding an incident, which involved
a vehicle and Defendant. Upon his arrival, he spoke with Ms. Katz and obtained a
written statement from her. He also obtained a written statement from Ms. Tyler
when she arrived. He described Ms. Tyler’s demeanor as “visibly upset” and that
“she looked like she had a lot of anxiety.” Officer Fogarty explained that he asked
to speak with Defendant when she called Boomtown later that day. He instructed
12
Ms. Elwood identified State’s Exhibit 5 as the detailed report for the Lexus that she printed out from
her server at Boomtown. She confirmed that it reflects all actual pings and attempted pings that she made
on the vehicle on May 7, 2018. State’s Exhibit 5 was entered into evidence and published to the jury.
13
Ms. Elwood explained that the GPS report stated that at 1:35 p.m. the vehicle was in “Drive” which is
how she knows it was in motion. The GPS report indicated that the second ping indicated “Response:
Locate,” not “Drive,” which meant that the vehicle was merely located; she testified that the vehicle
potentially could have been stopped at a stop sign or stop light. She confirmed that the vehicle was not
being driven at that moment.
14
Ms. Elwood recalled “going too fast” and being “panicked” while attempting to ping the vehicle’s
location, which led to moments during the test drive where she was unable to get the coordinates of the
vehicle. Ms. Elwood explained that “sometimes when you track—try to track down too many times, it
won’t locate right away.” On cross-examination, Ms. Elwood explained that an “attempt locate” meant
that the vehicle was not able to be located. She testified that this did not mean the program was
inoperable.
20-KA-215 7
Defendant to meet him at the Kenner Police Department. He testified that Defendant
did not tell him whether or not she would meet with him, and that she did not appear
at the department. Based on his investigation, Officer Fogarty applied for an arrest
warrant for Defendant.15 Officer Fogarty stated that he was later informed that
Defendant was “booked on that warrant.” He confirmed that his police report did
not state that Defendant prevented Ms. Tyler from using the phone or mention any
weapons and threats. He testified that the report did not mention anything about
running stop signs or speeding. Upon the conclusion of Officer Fogarty’s testimony,
the State rested its case. The defense then called Defendant to testify.
Defendant testified that she first saw the vehicle on April 9, 2018, and that she
contacted Boomtown the following day. She had three communications with the
dealership that month—once on April 10, 2018, and twice on April 12, 2018. On
May 7, 2018, she contacted Boomtown around 12:15 p.m. to determine if she could
test drive the vehicle. She also asked if there would be enough time for her to return
to school for an exam at 3:00 p.m. When she arrived, Defendant looked at the
vehicle, and then Ms. Tyler came out and introduced herself. Defendant recalled
answering a phone call at 12:38 p.m. which lasted about thirty-five minutes. After
the phone call, Defendant asked if there was anything that she needed to sign or be
aware of before taking the vehicle for a test drive.
Defendant testified that she handed in her “driver’s license and a picture of it
was taken with the cell phone.” She testified that she “said the copy machine is right
there. You really need to take a picture on my cell phone?”16 Defendant then
testified that she asked Ms. Tyler to drive the vehicle off of the lot because the
parking lot was difficult to maneuver. She testified that once she took over driving,
15
Officer Fogarty’s arrest warrant was marked as State’s Exhibit 6 and entered into evidence for record
purposes only.
16
On cross-examination, Defendant testified that Ms. Katz told her she would make a copy of the license,
but what she actually observed was Ms. Katz taking a picture of the license on her personal cellphone.
20-KA-215 8
Ms. Tyler began providing her with directions via hand signals. Defendant stated
that Ms. Tyler did not discuss the route with her prior to getting in the car and that
Ms. Tyler was directing them “around in circles.”
Defendant testified that she was confused as to whether the vehicle was a 2004
or a 2006 Lexus and that Ms. Tyler did not know. Nevertheless, she liked the
vehicle, and said, “Let’s bring this baby on the Interstate, like let’s see how it rides.”
She testified that Ms. Tyler responded that they could not take the vehicle onto the
interstate because it did not have enough gas. Defendant asked if they could stop
for gas. Ms. Tyler told her that she did not have any money; Defendant testified that
she then offered to pay for the gas. Defendant testified that Ms. Tyler responded,
“Well, you got to call the boss lady,” which is why they called the dealership.
Defendant testified that she initially spoke with a man17 about the vehicle’s
actual make, model, and mileage because it did not match with the buyer’s guide on
their website. She asked for permission to stop and get gas in order to take the
vehicle on the interstate to drive to “Louisa” and travel back to Boomtown, which
was her normal route for school.18 Defendant testified that the man put her on hold
for four minutes and then came back and told her to call again later because Ms.
Katz was unavailable.
Defendant testified that she called back after a few minutes and spoke to Ms.
Katz about the vehicle’s make and model. She testified that while at a red light she
told Ms. Katz that she wanted to take the vehicle onto the interstate to drive to
Louisa, but would need to stop for gas. Defendant informed Ms. Katz that they were
approaching a gas station, and she asked for permission to stop for gas. She stated
that Ms. Katz told her that Boomtown’s insurance would only provide for a limited
number of miles per test drive, but that Ms. Katz could not tell her exactly how many
17
She testified it was the same white male who had been in the dealership with her.
18
On cross-examination, Defendant clarified that Louisa is the exit for her school in Gentilly. She
confirmed that she wanted to test drive the vehicle from Kenner to Gentilly.
20-KA-215 9
miles were allowed. She testified that she asked Ms. Katz for an estimated number
of miles, and told Ms. Katz that she did not have to go on the interstate and could
take a different route within the allotted mileage.
Defendant testified that she ultimately chose not to get gas because she was
“going back and forth” with Ms. Katz. She testified that she began “picking up that
something’s not right” because Ms. Katz was “not telling [her] the miles.” She
testified that she could not understand why she was not provided this information
prior to Boomtown taking a photo of her license. She then asked Ms. Katz to delete
the picture of her driver’s license from the cell phone on which it was taken because
she was afraid that her information would be shared. Defendant testified that she
“had to get on the interstate” because she was in the far right lane for gas, but then
later, on cross-examination, agreed that it was by her own volition that she took the
vehicle on the interstate.19
Defendant testified that she informed Ms. Katz that she was approaching the
interstate, and Ms. Katz said that she was “calling the cops” and hung up the phone.
Defendant testified that she told Ms. Tyler about her conversation with Ms. Katz and
that Ms. Tyler asked, “Why is she going to call the police?” Defendant testified that
as she was preparing to exit the interstate, Ms. Tyler asked, “What are you doing?”
Defendant testified that when she explained that she was turning around to delete
the photograph of her driver’s license, Ms. Tyler started punching the dashboard of
the vehicle, cursing, and saying that she “can’t deal with the police.” Defendant
testified that Ms. Tyler was “practically crying” and repeatedly told her to keep
driving. Defendant testified that Ms. Tyler offered to bring Defendant to school and
said that she would “deal with [Ms. Katz]” after she returned to Boomtown.
19
Defendant testified that while Ms. Tyler did not direct her onto the interstate, she never actually told
Defendant not to go on the interstate.
20-KA-215 10
Defendant testified that Ms. Tyler received several short phone calls, stating
that the calls were from her cousin. Defendant stated that Ms. Tyler refused to
answer when asked if it was actually Ms. Katz calling her cell phone. Defendant
asked Ms. Tyler to call Ms. Katz and let her know that she was bringing Defendant
to school, but Ms. Tyler refused. Defendant testified that she told Ms. Tyler that she
was going to bring the car back to Boomtown and call the police. She testified that
Ms. Tyler began hysterically screaming and shaking. Defendant explained that Ms.
Tyler threw the car into neutral, reached over, twisted Defendant’s wrists, and
propelled the vehicle from the middle lane toward the shoulder of the road.
Defendant explained that during this melee she tried to keep them both safe,
managing to get the vehicle on the shoulder of the interstate while Ms. Tyler held
both of her hands. After the vehicle stopped, Ms. Tyler placed the vehicle in park
and grabbed the keys. Ms. Tyler then ran out of the vehicle and locked the doors.
Defendant at that point exited the vehicle and saw a “MAP driver” nearby.20 She
ran to his vehicle and tried to explain to him what had occurred.21 Defendant testified
that, through his mirror, the MAP driver watched Ms. Tyler re-enter the vehicle and
drive away.
Defendant testified that she later called the dealership and that the call was on
speakerphone. She asked, “Who is it that you had in the car with me? Who is this
person? Do you know what she just did?” Defendant testified that “they” began
laughing at her because “they knew that [Ms. Tyler] had put [her] out on the
interstate.” She informed them that she would call the police after taking her exam.
Defendant explained that she saw a state trooper on her way home from school, and
she told him everything that had happened. She testified that she tried to call the
20
Defendant testified that she attempted to exit the vehicle from the passenger side but that because it was
locked she was forced to exit from the driver’s side.
21
Defendant testified that she screamed and cried when she told the driver what had occurred. She said
that the driver was shocked and scared.
20-KA-215 11
police three times when she returned home around 7:00 p.m. Defendant testified
that she tried to make a report and wrote to various agencies for about two weeks,
but that no one would take her report. She stated that her last attempt to call a state
trooper occurred on either May 13 or 14. Defendant testified that she never spoke
with Officer Fogarty and that she did not speak to any officer who instructed her to
go to a police station.
At the conclusion of trial, on January 28, 2020, the jury unanimously found
Defendant guilty on count one, unauthorized use of a motor vehicle, and not guilty
on count two, simple kidnapping of Ms. Tyler. 22 On February 5, 2020, Defendant
filed a motion for new trial, which the trial court denied the following day.
Immediately following the denial of Defendant’s motion for new trial on February
6, 2020, the trial court sentenced Defendant to imprisonment at hard labor for one
year. The trial court then suspended Defendant’s sentence and placed her on active
probation for a term of two years. On February 7, 2020, Defendant timely filed a
motion for appeal, which was granted on February 13, 2020.
Law and Discussion
The question of sufficiency of the evidence is properly raised by a motion for
post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. State v. Eliis,
18-463 (La. App. 5 Cir. 07/15/19), 276 So.3d 633, 642. Here, Defendant did not file
a post-verdict judgment of acquittal. On February 5, 2020, Defendant filed a motion
for new trial. Nevertheless, the failure to file a post-verdict judgment of acquittal
does not preclude appellate review of the sufficiency of the evidence. State v.
Thomas, 08-813 (La. App. 5 Cir. 04/28/09), 13 So.3d 603, 606 n.3, writ denied, 09-
1294 (La. 04/05/10), 31 So.3d 361 (citing State v. Washington, 82-74 (La. 10/29/82),
421 So.2d 887, 889).
22
The jury unanimously found Defendant not guilty as to count two, simple kidnapping.
20-KA-215 12
The standard of review for sufficiency of the evidence challenges is whether,
after 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Under the Jackson standard, a review of a criminal conviction record for sufficiency
of evidence does not require the court to ask whether it believes that the evidence at
trial established guilt beyond a reasonable doubt. It is not the function of the
appellate court to assess credibility or reweigh the evidence; rather, a reviewing
court must consider the whole record and determine whether a rational trier of fact
would have found guilt beyond a reasonable doubt. State v. Thompson, 18-273 (La.
App. 5 Cir. 11/28/18), 259 So.3d 1257, 1266, writ denied, 18-2077 (La. 09/06/19),
278 So.3d 372 (citing State v. Williams, 98-1146 (La. App. 5 Cir. 06/01/99), 738
So.2d 640, 648, writ denied, 99-1984 (La. 01/07/00), 752 So.2d 176; State v. Juluke,
98-341 (La. 01/08/99), 725 So.2d 1291).
In making this determination, a reviewing court will not re-evaluate the
credibility of witnesses or re-weigh the evidence. State v. Caffrey, 08-717 (La. App.
5 Cir. 05/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 02/05/10), 27 So.3d
297. Indeed, the resolution of conflicting testimony rests solely with the trier of fact,
who may accept or reject, in whole or in part, the testimony of any witness. See
State v. Bailey, 04-85 (La. App. 5 Cir. 05/26/04), 875 So.2d 949, 955, writ denied,
04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554,
163 L.Ed.2d 468 (2005). In cases relying on circumstantial evidence to prove one
or more elements of the crime, when the fact-finder reasonably rejects the hypothesis
of innocence advanced by the defendant at trial, that hypothesis fails, and the verdict
stands unless the evidence suggests an alternative hypothesis sufficiently reasonable
that rational jurors could not find proof of the defendant’s guilt beyond a reasonable
doubt. State v. White, 07-831 (La. App. 5 Cir. 3/11/08), 982 So.2d 843, 846, writ
20-KA-215 13
denied, 08-0846 (La. 10/31/08), 994 So.2d 534. Thus, in the absence of internal
contradiction or irreconcilable conflicts with physical evidence, the testimony of one
witness, if believed by the trier of fact, is sufficient to support a conviction. State v.
Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-987
(La. 1/30/09), 999 So.2d 745.
In her sole assignment of error, Defendant asserts that the evidence was
insufficient to support her conviction of unauthorized use of a motor vehicle.
Defendant contends that the state failed to meet its burden of proving beyond a
reasonable doubt that she possessed the mens rea or evil intent necessary under the
law. Rather, she asserts, that the evidence was clear that she possessed a motor
vehicle belonging to another and that her only crime was steering the vehicle onto
the interstate “for a few minutes of travel.” Defendant argues that her actions of
refusing to abide by the owner’s commands “hardly evidenced criminal intent.”
In its response, the State argues that the fraudulent intent requirement is to
“prevent the unwarranted encroachment of criminal sanctions into new areas
traditionally handled between the parties themselves.” The State asserts that the
Louisiana Legislature has made it clear that intentional use of a motor vehicle
without consent is a crime.23 The State contends that Ms. Tyler and Ms. Katz both
told Defendant that she could not drive the Lexus on the interstate, but Defendant
deliberately “did what she had been repeatedly told she could not do.” The State
asserts that Defendant’s actions satisfied the statutory requirements of unauthorized
use of a motor vehicle, that Louisiana law has recognized any intentional use of the
vehicle without consent as a crime, and that La. R.S. 14:68.4 does not require that
23
The State asserts that the Defendant’s initial permission to possess the Lexus did not immunize her
from criminal prosecution. See discussion on limited consent, infra.
20-KA-215 14
the unauthorized use “persist for any particular period of time or involve any
particular distance.”
Under La. R.S. 14:68.4, unauthorized use of a motor vehicle is defined as the
intentional taking or use of a motor vehicle which belongs to another, either without
the other’s consent, or by means of fraudulent conduct, practices, or representations,
but without any intention to deprive the other of the motor vehicle permanently. This
Court has repeatedly found State v. Bias, 400 So.2d 650, 652-53 (La. 06/22/81), a
case involving a virtually identical statute— La. R.S. 14:68,24 unauthorized use of a
movable—instructive in interpreting the statute at issue in the instant case—La. R.S.
14:68.4, unauthorized use of a motor vehicle. See White, 982 So.2d at 846; State v.
Joseph, 05-368 (La. App. 5 Cir. 1/17/06), 921 So.2d 1060, 1063; State v. Varnado,
01-367 (La. App. 5 Cir. 9/13/01), 798 So.2d 191, 193; State v. Spencer, 97-811 (La.
App. 5 Cir. 1/27/98), 707 So.2d 119, 120. The Bias Court expressly found that the
“statute proscribing the unauthorized use of a movable requir[es] a showing of mens
rea or criminal intent, since the ‘evil’ state of mind of the actor normally
distinguishes criminal acts (punishable by the state alone) from mere civil wrongs
(actionable by private individuals against one another).” Bias, 400 So.2d at 652-53.
Likewise, this Court has consistently construed the present statute proscribing
unauthorized use of a vehicle as also requiring a showing of mens rea or criminal
intent. See White, 982 So.2d at 846; Joseph, 921 So.2d at 1063; Varnado, 798 So.2d
at 193; Spencer, 707 So.2d at 120. Then, in State in Int. of C.T., 16-939 (La.
10/18/17), 236 So.3d 1210, 1212-13,25 the Louisiana Supreme Court clarified that
24
La. R.S. 14:68 provides the following: “Unauthorized use of a movable is the intentional taking or use
of a movable which belongs to another, either without the other’s consent, or by means of fraudulent
conduct, practices, or representations, but without any intention to deprive the other of the movable
permanently.”
25
In a juvenile delinquency proceeding, the State’s burden of proof is the same as in a criminal
proceeding against an adult—to prove beyond a reasonable doubt every element of the act alleged, in this
case unauthorized use of a motor vehicle pursuant to La R.S. 14:48.4. State in Int. of C.T., 236 So.3d at
1211.
20-KA-215 15
the State need only prove a vehicle was knowingly used without the consent of the
owner to sufficiently establish the element of criminal intent under La. R.S. 14:68.4.
In the instant matter, we find that the State sufficiently proved that Defendant
had the requisite criminal intent to commit the crime of unauthorized use of a motor
vehicle where it clearly established that Defendant committed an intentional taking
without the owner’s consent. Defendant asserts that, because she was a “permitted
possessor” of the Lexus for the duration of the incident, “having first provided to the
owner [of the vehicle] a copy of her valid drivers’ [sic] license, and during the entire
drive was accompanied by the owner’s employee,” her actions of driving on the
interstate—though against the owner’s commands—did not demonstrate criminal
intent. However, Louisiana jurisprudence clearly establishes that consent may be
limited and that any use of a motor vehicle surpassing the limited consent provided
may constitute a violation of La. R.S. 14:68.4.
In Spencer, 707 So.2d at 121-22, this Court found sufficient evidence to
uphold the defendant’s conviction for unauthorized use of a motor vehicle when he
took a vehicle from a car dealership for a test drive, with the dealership’s consent,
but failed to return the vehicle within a 24-hour period. Id. The defendant argued
there was insufficient evidence to prove he had the requisite criminal intent to
commit the crime of unauthorized use of a motor vehicle where “his actions were
within the normal scope of a person interested in purchasing a new vehicle.” Id. at
121. Citing the salesman’s testimony that he did not give the defendant permission
to keep the car for 24 hours, this Court found that a rational jury could have found
the requisite criminal intent beyond a reasonable doubt. Id.
Likewise, in State v. Colbert, 04-538 (La. App. 5 Cir. 11/30/04), 889 So.2d
1128, 1133, this Court affirmed the defendant’s conviction for unauthorized use of
a motor vehicle, finding that a rational trier of fact could have reasonably found that
20-KA-215 16
the defendant possessed the requisite criminal intent based on his failure to respond
after being asked to return the vehicle. Then in Varnado, 798 So.2d at 193-94, this
Court upheld a conviction of an employee who used the employer’s vehicle during
the weekend without consent. There was testimony in that case that employees were
never permitted to take company cars home for the weekend. This Court concluded,
among other things, that a rational juror could have reasonably found that the
defendant possessed the requisite criminal intent to support a conviction for
unauthorized use of motor vehicle where he took the company vehicle over the
weekend and acted beyond the limited consent his employer provided him.
In State v. White, 07-831 (La. App. 5 Cir. 03/11/08), 982 So.2d 843, writ
denied, 08-846 (La. 10/31/08), 994 So.2d 534, this Court found sufficient evidence
to uphold a conviction for the unauthorized use of a motor vehicle. In that case, the
defendant, a vehicle dealership employee, was given limited consent to drive the
dealership vehicles when he was accompanied by either the dealership’s owner or
manager. On the day in question, the defendant took a vehicle from a dealership
without the accompaniment of the dealership’s owner or manager. According to the
police officer’s testimony, the defendant stated he was worried that he was not going
to get paid because he took the car. This Court stated that the defendant’s statement
indicated guilty knowledge such that a rational juror could have concluded that the
defendant took the dealership vehicle without consent. Id. at 847.
Additionally, other Circuit Courts have similarly found sufficient evidence to
support a conviction for unauthorized use of a motor vehicle in cases where the
defendant used a motor vehicle in a manner that deviates from the limited consent
provided to him or her. In State v. Coleman, 02-1487 (La. App. 4 Cir. 10/09/02),
830 So.2d 341, the Fourth Circuit held that the evidence was sufficient to support a
conviction for attempted unauthorized use of a motor vehicle. In that case, the
20-KA-215 17
defendant was an employee authorized to use a company van for a certain period of
time along a specific route. The defendant argued that the State needed to prove that
he “harbored fraudulent intent.” Id. at 343. However, the Fourth Circuit stated that
La. R.S. 14:68.4 provides that the State may either prove an intentional taking
without the owner’s consent or an intentional taking by means of fraudulent conduct,
and held that once the defendant deviated from the route and schedule, he violated
the statute. Id. Similarly, in State v. LaCombe, 09-544 (La. App. 3 Cir. 12/09/09),
25 So.3d 1002, 1003, the Third Circuit found that the defendant had the requisite
criminal intent beyond a reasonable doubt in a scenario in which he was hired as a
truck driver and directed to drive the company’s eighteen-wheeler along a
designated route and he went beyond that route.
In the present case, Defendant initially had permission to take the vehicle for
a test drive, but she was limited to a designated route, and Defendant knowingly
disregarded the limited consent provided to her by intentionally driving the
dealership vehicle beyond the designated route onto the interstate. Boomtown’s
owner, Ms. Katz, revoked her consent of Defendant’s use of the vehicle during her
phone conversation with Defendant on May 7, 2018, when she explicitly told
Defendant to return to Boomtown if she could not stay on the designated route. Ms.
Tyler likewise testified that Defendant was denied permission to drive the car on the
interstate because of insurance limitations and Defendant confirmed that Ms. Katz
informed her that she could not take the vehicle on the interstate. Defendant
admitted that she, of her own volition, nevertheless chose to disobey the interstate
limitation.
A reasonable jury could have concluded that once Defendant deviated from
the designated route, she knew her use of the vehicle was unauthorized.
Alternatively, and of equal weight, a rational jury could have found that Defendant
20-KA-215 18
possessed the requisite criminal intent based on her failure to return the vehicle to
Boomtown after being asked to do so. See Colbert, 889 So.2d at 1133. Also, a
rational jury could have concluded that the Defendant’s requests to be dropped off
in Gentilly and have Ms. Tyler return the vehicle, as well as her failure to return to
Boomtown or the Kenner Police Department, indicated an awareness of wrongdoing
and/or guilty knowledge because she had taken the vehicle onto the interstate
without consent. See White, 982 So.2d at 847. In any event, Defendant’s admittedly
intentional taking of the vehicle onto the interstate undoubtedly surpassed the limited
consent Boomtown provided to her.
We recognize that Defendant claims that the corroborating testimony of Ms.
Tyler, Ms. Katz, Ms. Elwood, and Officer Fogarty is all untruthful; however, the
jury chose to accept their testimony over Defendant’s and this Court will not second-
guess the jury’s credibility determinations.26 See State v. Norman, 20-142 (La. App.
5 Cir. 12/30/20), 310 So.3d 287, 295 (“It is the role of the fact-finder to weigh the
credibility of the witnesses, and a reviewing court will not second-guess the
credibility determinations of the trier of fact beyond the sufficiency evaluation under
the Jackson standard of review.”); see also White, 982 So.2d at 847.
Based on our review of the testimony, and considering all of the evidence, we
find that, viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found, beyond a reasonable doubt, that Defendant
committed the crime of unauthorized use of a motor vehicle, in violation of La. R.S.
26
We further point out that Defendant’s testimony contradicts itself. She first testified that she tried to
call various police stations and agencies to report the incident between May 7, 2018 and May 14, 2018,
but no one would take her report. Defendant then acknowledged that her prior testimony that no police
officer would listen to her or take her report was an inaccurate description of the truth. She also testified
that she did not contact the Better Business Bureau, Used Motor Vehicle Commission, “among other
places” where she intended to report the incident, until weeks before trial.
20-KA-215 19
14:68.4. We find that sufficient evidence was introduced at trial to establish all
elements of the offense.
Errors Patent
This Court routinely reviews the record on appeal for errors patent regardless
of whether the defendant makes such a request. La. C.Cr.P. art. 92027; State v.
Williams, 20-46 (La. App. 5 Cir. 12/30/20) 308 So.3d 791, 839; State v. Oliveaux,
312 So.2d 337 (La. 03/17/75); State v. Weiland, 89-584 (La. App. 5 Cir. 01/17/90)
556 So.2d 175. The review reveals two errors in this case.
Error No. 1:
The trial court sentenced Defendant immediately after denying her motion for
new trial. La. C.Cr.P. art. 873 requires a twenty-four-hour delay in sentencing after
denial of a motion for new trial or in arrest of judgment, unless the defendant waives
the delay. In this case, Defendant did not expressly waive the delay.
When the defendant challenges the penalty imposed and the imposed sentence
is not mandatory, the failure to observe the twenty-four-hour delay mandated in La.
C.Cr.P. art. 873 cannot be considered harmless error. State v. Augustine, 88-1297
(La. 02/05/90), 555 So.2d 1331; State v. Colbert, 04-538 (La. App. 5 Cir. 11/30/04),
889 So.2d 1128, 1135. As a general rule, when a defendant challenges a non-
mandatory sentence, and the delay is not waived, the defendant’s sentence must be
vacated and the matter remanded for resentencing. State v. Sims, 02-1244 (La. App.
5 Cir. 04/29/03), 845 So.2d 1116, 1123, writ denied, 03-2189 (La. 08/20/04), 882
So.2d 570.
In the instant case, defendant’s sentence on her underlying conviction was
non-mandatory. See La. C.Cr.P. art. 14:68.4. However, Defendant is not
challenging her sentence on appeal.
27
La. C.Cr.P. art. 920(2) states that an error patent is “[a]n error that is discoverable by an inspection of
the pleadings and proceedings and without inspection of the evidence.”
20-KA-215 20
In State v. Strickland, 11-715 (La. App. 5 Cir. 03/27/12), 91 So.3d 411, 418-
19, this Court found that the defendant tacitly waived the statutory delay provided
in La. C.Cr.P. art. 873. We further found that the record suggested that the defendant
knew he would be sentenced at the time of his sentencing hearing and came prepared
with three witnesses to testify on his behalf. This Court stated that because the
defendant did not raise the issue on appeal and had not shown that he suffered any
prejudice as a result of the trial court error, “remand would be a useless formality.”
Id; see also State v. Bibbins, 13-875 (La. App. 5 Cir. 04/09/14), 140 So.3d 153, 169-
70, writ denied, 14-0994 (La. 12/08/14), 153 So.3d 439, and writ denied, 14-1015
(La. 12/08/14), 153 So.3d 440.
Here, the record likewise indicates that Defendant knew she would be
sentenced at the time of her sentencing hearing; she came prepared with two
witnesses to testify on her behalf even though the judge found it unnecessary at that
time. Absent a showing of prejudice from the failure to afford the statutory delay,
reversal of a prematurely-imposed sentence is not required. Bibbins, 140 So.3d at170 (citing State v. Seals, 95-0305, (La. 11/25/96), 684 So.2d 368, 380, cert. denied,
520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997)). Accordingly, even if
Defendant did not expressly waive the delay here, we find that she was not
prejudiced by the trial court’s failure to observe the delays and that it is unnecessary
to remand this matter for resentencing.
Based on the foregoing, we find that corrective action on this error is not
necessary.
Error No. 2:
Although the sentencing minute entry reflects that Defendant was given the
advisal of the time period for seeking post-conviction relief as required by La.
20-KA-215 21
C.Cr.P. art. 930.828, the transcript indicates that the trial court failed to actually
provide that advisal.29 The transcript prevails when there is a discrepancy between
the commitment and the transcript. State v. Lynch, 82-859 (La. 11/28/83), 441 So.2d
732, 734; State v. Montero, 18-397 (La. App. 5 Cir. 12/19/18), 263 So.3d 899, 909.
It is well settled that if a trial court fails to advise, or provides an incomplete advisal,
pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by
informing the defendant of the applicable prescriptive period for post-conviction
relief by means of its opinion. See State v. Perez, 17-119 (La. App. 5 Cir. 08/30/17),
227 So.3d 864; Bibbins, 140 So.3d at 171; State v. Taylor, 12-25 (La. App. 5 Cir.
06/28/12), 97 So.3d 522, 538; State v. Jacobs, 07-887 (La. App. 5 Cir. 05/24/11), 67
So.3d 535, writ denied, 11-1753 (La. 02/10/12), 80 So.3d 468; State v. Neely, 08-
707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-248 (La. 10/30/09),
21 So.3d 272.
Accordingly, we now advise Defendant by way of this Opinion that no
application for post-conviction relief, including applications that seek an out-of-time
appeal, shall be considered if filed more than two years after the judgment of
conviction and sentence has become final under the provisions of La. C.Cr.P. arts.
914 or 922.
Conclusion
For the foregoing reasons, we affirm Defendant’s conviction and sentence.
AFFIRMED
28
La. C.Cr.P. art. 930.8 provides that a defendant shall have two years after the judgment of conviction
and sentence has become final to seek post-conviction relief.
29
According to the transcript, the trial court stated, “And ma’am you do have two have [sic] after the
judgment of conviction, the sentence become final to file for post-conviction relief, alright.”
20-KA-215 22
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 28, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-215
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
MATTHEW R. CLAUSS (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
BRUCE G. WHITTAKER (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW (APPELLEE)
LOUISIANA APPELLATE PROJECT DISTRICT ATTORNEY
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ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
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GRETNA, LA 70053