State v. BruceState v. Bruce
The defendant, Benjamin Bruce, was charged by Bill of Information with theft of a motor vehicle belonging to Barry Ward, a violation of
FACTS
On the morning of June 11, 1988, Barry Ward drove to his place of employment, Jet Auto Supply, located in Jefferson Parish, in a 1979 Buick Regal automobile which he owned. Mr. Ward parked behind the store leaving his keys in the car. In the late afternoon between 5:00 and 5:30 p.m., while waiting on customers, he looked out the window and saw someone driving away in his car. He was not able to recognize the person who was driving his car, but only saw that it was a black male. Mr. Ward further testified that he had not given anyone permission to take his car.
Mr. Romal Mohammed, the owner of Jet Auto Supply, testified that on June 11, 1988, at approximately 5:30 p.m. as he was pulling into the parking lot of Jet Auto Supply, he observed someone leaving in Barry Ward‘s car. Noticing that Mr. Ward was not driving the vehicle, he stopped and asked the individual where he was going and whether Barry Ward knew that he had his car. According to Romal Mohammed, the defendant “told me a few choice words and then he took off.”
Stephen Furst who also helped in the apprehension of the defendant testified that on June 11, 1988, between 5:00 — 6:00 p.m. he was at Beck‘s photography studio. Mr. Furst was still inside the studio when he heard a noise which he thought were tires screeching or engines racing. He rushed outside and as he got to the street he saw a red or maroon vehicle going across the railroad tracks towards Airline Highway with a white pick-up truck close behind. Both vehicles were traveling at a very high rate of speed. The white pick-up truck then struck the red car. The occupant of the truck got out and approached the driver‘s side of the red car. As it looked like a scuffle was ensuing, Mr. Furst, with Mr. Beck a few steps ahead, went to the scene of the collision. Mr. Furst then observed the person in the red car exit from the passenger door and start running around the back of a church that was at the corner of Kenner Avenue and Clay Street. He began to chase the subject on foot; however, when he approached a yard with some Doberman pinschers he stopped the chase and went around the block to try and see which way the defendant was going. The next time he saw the defendant, he had been caught by Beck and the driver of the truck. He also identified the defendant in court as the man he was chasing that day.
James Beck also testified and likewise identified the defendant and the incident leading up to his capture.
ASSIGNMENTS OF ERROR
In the Assignments of Error and Designation of Record, defense counsel lists eight assignments of error. In her brief, however, she sets forth two arguments, encompassing only three assignments of error. The other five assignments were not argued in the brief and accordingly, Assignments of Error No. 1, 2, 3, 7 and 8 are considered abandoned, pursuant to Uniform Rules of Court-Courts of Appeal, Rule 2-12.4.
ARGUMENT ONE/ASSIGNMENTS OF ERROR NO. 5 AND NO. 4
SUFFICIENCY OF EVIDENCE
In this assignment, defendant challenges the sufficiency of the evidence which was used to convict him of theft and of receiving stolen goods. The appellate brief submitted by defendant does not present any specific factual basis for challenging the sufficiency of the evidence. Rather, he merely urges this court to examine the overall sufficiency of the evidence presented against him at trial.
Defendant was found guilty of both theft,
The state, in its brief, concedes that both convictions cannot stand pursuant to
The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution to find the essential elements of the crime beyond a reasonable doubt.
Therefore, in order to sustain a conviction for theft, the state must prove beyond a reasonable doubt: “(1) that there be a misappropriation or taking, (2) that the misappropriation or taking be of a thing of value, (3) that the thing belong to another, and (4) that the misappropriation or taking be with the intent to deprive the other permanently of that which is the subject of the taking.” State v. Pittman, 368 So.2d 708 (La.1979); State v. Bourg, 470 So.2d 291 (La.App. 5th Cir.1985), writ denied, 475 So.2d 354 (La.1985).
The state must further prove the value of the stolen property, for upon this proof depends the determination of the severity of the theft, and the punishment for a convicted offender. State v. Dilworth, 358 So.2d 1254 (La.1978); State v. Bourg, supra.
The facts here sufficiently establish that the defendant took a thing of value (a car) belonging to another (Barry Ward) without consent or authorization and with the intent to deprive the owner permanently of the property taken.
Testimony regarding the value of the car was also presented at trial. Ward testified that he originally paid $250.00 for the vehicle, which, at the time, had no motor in it. He put a motor and transmission in the car, spending about $1,000.00 to do so. Ward further testified that he has approximately $1,250.00 invested in the vehicle. Accordingly, the testimony of Mr. Ward is sufficient to establish the value of the car, an element essential to sustain a conviction.
Even though the state admitted that the conviction for receiving stolen property should be vacated, it is noted that the evidence presented was not sufficient to sustain a conviction for that offense.
Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
As noted in comment (a) of
ARGUMENT TWO/ASSIGNMENT OF ERROR NUMBER SIX
Also assigned as error are any and all errors patent on the face of the record.
In the present case, there is reversible error patent based on the fact that defendant was convicted of both theft and receiving stolen property arising from the same incident, in contravention of
A review of the record further reveals that while the minute entry and commitment indicate that defendant was given credit for time served, the transcript does not so reflect. Generally, where there are discrepancies between the minute entry and transcript, the transcript should prevail.
DECREE
For the foregoing reasons, we affirm the defendant‘s conviction for theft and his ten (10) year sentence is amended to include credit for time served. His conviction and ten (10) year sentence for receiving stolen property is vacated.
AMENDED, AFFIRMED IN PART, AND VACATED IN PART.