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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #004

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 19th day of January, 2011, are as follows:

PER CURIAM:

2009-K -2723

STATE OF LOUISIANA v. GRADY N. GREENE (Parish of Orleans) (Theft in an amount over $500.00.) Accordingly, the decision conviction and sentence are to the district court for COURT OF APPEAL DECISION REINSTATED; CASE REMANDED. below is reversed, the defendant's affirmed, and this case is remanded purposes of execution of sentence. REVERSED; CONVICTION AND SENTENCE

01/19/2011

SUPREME COURT OF LOUISIANA

No. 09-K-2723 STATE OF LOUISIANA v. GRADY N. GREENE

On Writ of Certiorari to the Fourth Circuit Court of Appeal

PER CURIAM: The state charged defendant by bill of information with theft in an amount over $500 in violation of La.R.S. 14:67. After defendant waived trial by jury, the trial court found him guilty of the lesser included offense of unauthorized use of a movable, La.R.S. 14:68. The trial court sentenced defendant to five years'

imprisonment at hard labor, the maximum term for the offense. On appeal, the Fourth Circuit reversed defendant's conviction and sentence on grounds that in a dispute arising from a contract to repair and renovate a home in New Orleans following Hurricane Katrina, the state failed to prove the requisite intent to defraud to support defendant's conviction for a criminal offense involving the unauthorized use of the victim's money and that "the dispute that existed between the parties was civil in nature not criminal and should have been handled in a civil proceeding, where any damages owed by either party could be properly assessed under the terms of the contract." State v. Greene, 08-1318, p. 10 (La. App. 4th Cir. 11/12/09), 26 So.3d 274,

280 (Belsome, J., dissenting). We granted the state's application to review the decision below and reverse because we agree with Judge Belsome that viewing the evidence in a light most favorable to the prosecution, and giving due deference to the factual findings made by the trial judge in reaching his verdict, the evidence supported the verdict returned by the court. No significant dispute exists with respect to the essential facts of this case, although the extent to which defendant and Karen Blanks became involved at a personal as well as professional level was sharply contested. Defendant, a selfdescribed contractor, came to New Orleans in March 2006, after friends urged him to take advantage of the opportunities presented by the reconstruction underway in the city following Hurricane Katrina. A mutual friend had given defendant Karen Blanks's name and after defendant arranged a meeting, and then began a personal relationship with Blanks, discussions turned to reconstructing Blanks's storm-ravaged home. Blanks testified that defendant represented himself as a licensed contractor in Louisiana, doing business as Grady Greene Construction LLC, and they agreed on a total price of $67,000 for the work. The revised contract was signed on August 14, 2006, on a form supplied by defendant, at the top of which was his letterhead, "Greene General Contractor Services," next to the statement, "Licensed and Insured LA #R1344-2005." Defendant signed as a general contractor, and the agreement spelled out in detail four phases in the repair of the residence. On August 14, 2006, Blanks had an initial payment of $25,200 transferred from her bank to defendant's account as a deposit on the contract. Two days later, defendant obtained a building permit, but he did not begin work on the home until September 2006, when he parked a trailer in front of the house and went about cutting down a tree in the back and removing a damaged fence.
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However, in the course of the preliminary work, defendant informed Blanks that the floors were not level, that removal of the fireplaces, as contemplated in Phase II of the contract, was impossible without repairing the foundation first, and that it was pointless to drywall the interior, Phase III of the contract, without first leveling the house. On October 6, 2006, defendant presented Blanks with an estimate of $6,800 to repair the foundation. Blanks obtained estimates from two other contractors, both of whom said the fireplaces could be safely removed without leveling the house. However, in the opinion of one of the contractors, the house was, in fact, "off centered by approximate degree and requires centering," and that the structural correction "should be accomplished prior to continued work on residence, especially prior to installation of drywall material." Nevertheless, Blanks testified that the contractor had called to reassure her work could proceed on removing the chimneys, and that she had other work around the house besides hanging drywall she expected defendant to do while she found someone to level the house. Blanks then instructed defendant to remove the fireplaces. Defendant explained that, notwithstanding the opinions of other contractors, removing the fireplaces would be dangerous to him and his crew without prior foundation repair. He also noted he would have to obtain an estimate for the chimney removal, although the removal had been specified in Phase II of the contract, and Blanks, acceding to the plan, instructed him to continue with other tasks in the contract. However, within a week, Blanks noticed that no other work had been done on the property. She attempted to contact defendant over the next 10 days but was unsuccessful. On October 27, 2006, Blanks then delivered to defendant at his residence a letter outlining what was expected of him. Four days later, on October 31, 2006, Blanks confronted defendant at home and informed him he was fired and the
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contract terminated. Blanks also sent defendant a termination letter by certified mail and demanded to be repaid the outstanding deposit balance within 24 hours, or she would contact the District Attorney's Office. That same day, Blanks ordered two of defendant's workers off the property. In her estimation, although defendant had been on the job for two months, he had done "very little work," beyond removing a fence, cutting down a tree, and removing some wood lathe from the walls, and, from what she could see, "that was all." Two weeks after she fired defendant, Blanks made a formal complaint to the Economic Crimes Department of the Orleans Parish District Attorney's Office. Detective Byron Francois met with defendant on December 6, 2006, and inquired if he had considered repaying Blanks. Defendant acknowledged that he owed Blanks the deposit less $4,800 for work already performed and submitted a written proposal offering to repay Blanks $20,000 at the rate of $5,000 a month beginning on December 31, 2006. Defendant told Francois that he could not repay any faster because he had used Blanks's money to pay work crews, buy materials, and pay himself on other, unrelated, jobs he was currently working, but also that he could pay Blanks $5,000 by the end of the month. Francois met with Blanks to determine if defendant's repayment plan was acceptable; however, Blanks informed Francois that the terms were unacceptable to her. Blanks testified that she needed to receive at least $10,000 per month because she was paying both rent and a mortgage. She also testified that defendant had informed her that he did not "use money from one person's account to another one to do any construction on any other person's house." Thus, "since no work was done on my house," Blanks saw no reason why defendant could not meet the terms of her demand for repayment, less the amount claimed by defendant for the work performed on the
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house. With negotiations at a standstill, Detective Francois arrested defendant on December 20, 2006, 11 days before the date of his first proposed payment. Defendant testified at trial that, in fact, he often worked two jobs simultaneously, but never more than two, that he had apprised Blanks of the practice, and that she had no objection "whatsoever." According to defendant, out of the original deposit which went into the only bank account he had at the time, he paid his work crew on the Blanks project and also "used those funds for another project that I had going, which is a common practice among contractors, that you have one or two jobs going and that sometimes you commingle funds to cover them, to keep both jobs going. That's exactly what I did." Defendant conceded that even after Blanks had fired him at the end of October 2006, he continued to draw $1,500 a week against the Blanks deposit as his own salary in November and December 2006, "depending on what [his] personal needs were." Defendant testified that the other project he had underway during November and December 2006, was for a Herman Sparks, and he identified Defense Exhibit Five, as a check from Sparks to him in the amount of $9,600, which he had "offered to pay to Ms. Blanks during the month of December." R., Tr., p. 125. The check from Sparks formed the linchpin of the defense offered at trial that the case was a civil matter to sort out in a good faith dispute over progress on the house which came to an end mid-October 2006, when defendant reported that the structure was not level and that he could not safely remove the chimneys, and certainly could not drywall the interior, until it was leveled. However, at the close of the testimony, the trial court rejected that defense and found defendant guilty of the lesser offense of unauthorized use of a movable. The trial judge did not convict him of theft as originally charged because "the specific intent to permanent[ly] deprive at
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the outset of this agreement was not in my mind proven beyond a reasonable doubt." However, the court found "that at some point during the course of the proceedings . . . [defendant] clearly used her money by fraudulent means, practice or representations for his own personal gain." In reversing the trial court and setting aside defendant's conviction, the court of appeal majority concluded that "[t]he evidence failed to exclude the reasonable probability that Mr. Greene and Ms. Blanks had a legitimate business dispute as to how best to proceed with the repairs and renovation of Ms. Blank's [sic] home, and that she terminated Mr. Greene's services after he was reluctant to proceed in the manner suggested by Ms. Blanks." Greene, 08-1318 at 10, 26 So.3d at 280. The majority further observed that "[l]ending legitimacy to Mr. Greene's concerns about the condition of the property, one of the contractors that Ms. Blanks consulted confirmed Mr. Greene's assessment of the need to level the foundation." Id. While acknowledging that defendant's "actions of applying the money advance by Ms. Blanks to another job or drawing on the money to pay himself, viewed in the light most favorable to the State, could constitute evidence of fraudulent and/or criminal conduct," the majority noted that the state had not charged defendant with misapplication of payments by a contractor in violation of La.R.S. 14:202, and concluded that "[a] rational trier of fact, viewing the evidence in the light most favorable to the prosecution could not find that fraudulent intent was proven beyond a reasonable doubt." Greene, 08-1318 at 10-11, 26 So.2d at 280-81. Dissenting, Judge Belsome had no dispute with the majority's factual account of the circumstances surrounding the dispute, but found that the majority had gone astray because "we are not permitted to substitute our interpretation of the evidence for that of the fact finder." Greene, 08-1318, p. 2, 26 So.3d at 282 (Belsome, J., dissenting)(citing State
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v. Pigford, 05-0477, p. 6 (La. 2/22/06), 922 So.2d 517, 521). On that basis, Judge Belsome would have deferred to the trial court's finding that defendant "'clearly used [the victim's] money by fraudulent means, practices or representations for his own personal gain.'" Id. The majority on the court of appeal panel began with the correct premise but erred for the reasons articulated by Judge Belsome. The crime of 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 moveable permanently." La.R.S. 14:68. The crime is a lesser and included offense of theft "because theft includes all the elements of unauthorized use

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