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10/16/01 "See News Release for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 01-KA-0871

STATE OF LOUISIANA v. DWAYNE FLEURY ON APPEAL FROM THE CRIMINAL DISTRICT COURT, FOR THE PARISH OF ORLEANS HONORABLE FRANK A. MARULLO, JR., JUDGE PRESIDING

KIMBALL, Justice* In this direct appeal, the trial court declared La. R.S. 14:67.10 unconstitutional, finding that this statute, which provides for different grades of penalties for the theft of goods from merchants than the general theft statute of La. R.S. 14:67, facially discriminates on the basis of the classification of the victim. For the reasons that follow, we conclude that La. R.S. 14:67.10 is constitutional because it furthers an appropriate state interest. The trial court's judgment is therefore reversed. FACTS AND PROCEDURAL HISTORY On April 17, 2000, defendant was charged by bill of information with a violation of La. R.S. 14:67.101 for committing theft of goods by misrepresentation or taking of
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Retired Judge Robert L. Lobrano, assigned as Justice Pro Tempore, participating in the decision. La. R.S. 14:67.10 provides:

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merchandise valued at one hundred dollars or more, but less than five hundred dollars,

A. Theft of goods is the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essential and may be inferred when a person: (1) Intentionally conceals, on his person or otherwise, goods held for sale. (2) Alters or transfers any price marking reflecting the actual retail price of the goods. (3) Transfers goods from one container or package to another or places goods in any container, package, or wrapping in a manner to avoid detection. (4) Willfully causes the cash register or other sales recording device to reflect less than the actual retail price of the goods. (5) Removes any price marking with the intent to deceive the merchant as to the actual retail price of the goods. (6) Damages or consumes goods or property so as to render it unmerchantable. B. (1) Whoever commits the crime of theft of goods when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years or may be fined not more than three thousand dollars, or both. (2) When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both. (3) When the misappropriation or taking amounts to less than a value of one hundred dollars, the offender shall be imprisoned for not more than six months or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft or theft of goods two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than one thousand dollars, or both. (4) When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or takings shall determine the grade of the offense. C. Notwithstanding any other provision of law, a misdemeanor offense under this Section may be the subject of a municipal ordinance.

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which were held for sale by AUNT SALLY'S INC., either without the consent of AUNT SALLY'S INC. to the misappropriation or taking, or by means of fraudulent conduct, practices or representations. On September 15, 2000, defendant appeared for arraignment unattended by counsel and the trial court appointed the Orleans Indigent Defender Program to represent defendant for arraignment purposes only. At that time, defendant entered a plea of not guilty. On September 29, 2000, the trial court set aside the bond forfeiture and a new attorney enrolled as counsel for defendant. Defense counsel made a written motion to quash the bill of information. On October 19, 2000, the trial court heard oral argument on the motion whereby defense counsel argued that La. R.S. 14:67.10 is unconstitutional because it imposes a greater penalty for theft from a merchant than from other legal persons under La. R.S. 14:672. The trial court granted the motion to quash and released defendant,

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La. R.S. 14:67 provides: A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential. B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both. (2) When the misappropriation or taking amounts to a value of three hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both. (3) When the misappropriation or taking amounts to less than a value of three hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both. C. When there has been a misappropriation or taking by a number 3

finding that La. R.S. 14:67.10 is unconstitutional as it denies equal protection under the law by treating merchants differently than other businesses and individuals. Plaintiff filed notice of appeal with the Fourth Circuit and the case was transferred to this Court pursuant to La. Const. art. V,

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