STATE OF LOUISIANA VERSUS SHINEDA N. TAYLOR
NO. 20-KA-215
FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
April 28, 2021
FREDERICKA HOMBERG WICKER JUDGE
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. Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.
FHW
RAC
JJM
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
Defendant, Shineda N. Taylor, appeals her conviction for unauthorized use of a motor vehicle, a violation of
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
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
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
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.
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
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.
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,
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
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,
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
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.
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
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
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
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
Under
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
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
In State v. White, 07-831 (La. App. 5 Cir. 03/11/08), 982 So.2d 843, writ denied, 08-0846 (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
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
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
Errors Patent
This Court routinely reviews the record on appeal for errors patent regardless of whether the defendant makes such a request.
Error No. 1:
The trial court sentenced Defendant immediately after denying her motion for new trial.
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
In the instant case, defendant‘s sentence on her underlying conviction was non-mandatory. See
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 at 170 (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
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
Conclusion
For the foregoing reasons, we affirm Defendant‘s conviction and sentence.
AFFIRMED
FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 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
CURTIS B. PURSELL
CLERK OF COURT
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
MATTHEW R. CLAUSS (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY JOHN CARR (APPELLEE) DISTRICT ATTORNEY LYNN SCHIFFMAN (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053
BRUCE G. WHITTAKER (APPELLANT) ATTORNEY AT LAW LOUISIANA APPELLATE PROJECT 1215 PRYTANIA STREET SUITE 332 NEW ORLEANS, LA 70130