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SUPREME COURT OF LOUISIANA
No. 97-K-0778

STATE OF LOUISIANA v. DESMOND G. HARRIS

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

KIMBALL, Justice* We granted writs in this case to address the question of how to value a stolen check for purposes of grading the offense under La. R.S. 14:67(B). For the reasons that follow, we find the value of a stolen check for purposes of La. R.S. 14:67(B) is its face value and reinstate the trial court's judgment and sentence.

FACTS AND PROCEDURAL HISTORY Linda Jones, a staff assistant at the Community Service Center, arrived at work shortly before 9 o'clock on the morning of November 3, 1995. When she got to her office, several clients, including defendant, were waiting. Ms. Jones placed her purse in the closet behind her desk. Defendant, Desmond Harris, was sitting about six or seven feet from the closet at the time. Ms. Jones recognized defendant because she had performed an "intake" on him the previous day. The clients then proceeded downstairs to attend a group session. Ms. Jones remained in her office until shortly before 11 o'clock when she left the Center with her boss. While Ms. Jones was out of the office, two of her co-workers approached her and asked if she had her purse with her. When she replied she did not,

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CALOGERO, C.J., not on panel. See Rule IV, Part 2, Section 3. 1

they told her they thought defendant had taken it. Ms. Jones returned to her office and discovered her purse was gone. Defendant, Desmond Harris, was subsequently arrested and charged with theft of property valued at $100 or more, but less than $500, a violation of La. R.S. 14:67(B). Defendant entered a plea of not guilty. At trial, Ms. Jones testified she paid $40.00 for the black leather purse which contained some change, a Visa credit card, her driver's license, an ATM card, a checkbook and checkbook cover, a wallet worth approximately $25.00, her home, office and car keys, and a state child support check made out to her in the amount of $161.50. Ms. Deontrenise Gibson testified she was with defendant at the group session when the group director allowed defendant and other clients to go upstairs to see their case workers to obtain vouchers for shelter or other things they might need. Although Ms. Gibson did not go upstairs, she testified she heard a rumble upstairs and then saw defendant running down the stairs with a black purse tucked under his left arm. Ms. Paula Kennedy also testified she saw defendant running down the stairs, but did not notice anything under his arms or in his hands. After a jury trial, defendant was found guilty as charged. The trial court found defendant to be a second felony offender and sentenced him to two years at hard labor. The court of appeal, with Judge Byrnes dissenting, found no basis for a rational fact-finder to convict defendant of theft of items valued between $100 and $500 and substituted a verdict finding defendant guilty of misdemeanor theft.1 The appellate court believed the jury was mistaken in using the face value of the stolen check to find defendant guilty of the middle grade of theft. This court granted the State's writ application2 to address the res nova question of how to value a stolen check for purposes of grading the seriousness of the offense under Louisiana's general theft statute, La. R.S. 14:67.

DISCUSSION In reviewing the sufficiency of the evidence to support a conviction, an appellate court is governed by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court must determine the direct and circumstantial evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational

1 2

State v. Harris, 96-0951 (La.App. 4 Cir. 3/5/97), 690 So.2d 999. State v. Harris, 97-0778 (La. 10/3/97), 701 So.2d 181. 2

trier of fact that all the elements of the crime had been proven beyond a reasonable doubt. State v. Meyers, 620 So.2d 1160, 1162 (La. 1993). Louisiana R.S. 14:67, which defines theft, provides in pertinent part: 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.(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. The critical issue in this case is whether the State presented evidence sufficient to convince a rational jury that defendant committed theft of property valued at $100 or more, but less than $500. The State contends the unendorsed check made out to the victim was worth its face value of $161.50 when defendant stole it, arguing the relevant inquiry is the actual value of the stolen item to the victim, not its value to defendant. Defendant urges this court to adopt the view that the check payable to the victim was of absolutely no value to anyone other than the victim. Defendant submits the value of the check should be based on the value of the piece of paper the check is printed on rather than the value of the check as a negotiable instrument. Although the question of how to value a stolen check for purposes of grading the seriousness of the theft offense has not yet been directly addressed by any Louisiana court,3 or the legislature,

Two Louisiana appellate courts were presented with cases in which the defendant stole checks, but the issue of valuation of these stolen checks for purposes of grading the offense was not addressed. In State v. Lay, 93-1063 (La.App. 1 Cir. 5/20/94), 637 So.2d 801, defendant attempted to cash a $205 check payable to Terrell. Because the store clerk knew defendant was named Lay and not Terrell, she refused to cash the check. After a jury trial, defendant was found guilty of possession of a stolen thing valued between $100 and $500. On appeal, defendant did not dispute the value of the check was its face value. The appellate court found a rational trier of fact could have concluded the State proved beyond a reasonable doubt that defendant was guilty of illegal possession of a stolen thing valued between $100 and $500. In State v. Finley, 520 So.2d 1020 (La.App. 3 Cir. 1987), defendant participated in the theft of victim's purse which contained cash and checks totaling $4,200. Defendant was found guilty of theft of property having a value over $500. Without discussing how much of the $4,200 was in cash and how 3

3

several other jurisdictions have considered the issue. With only minor variations in the tests used, these other jurisdictions uniformly hold the value of a stolen check, in the absence of an applicable statute, is the amount for which it is drawn. Their reasoning is based on the fact that the face value is what the victim was entitled to receive upon proper negotiation and presentation immediately prior to the theft. For example, in Gallegos v. State, 825 P.2d 1249 (N.M. 1992), defendant stole a cash box containing $900 in cash and $3,200 in unendorsed checks. In affirming defendant's conviction for theft of property between $2,500 and $20,000, the court stated: The generally followed rule in jurisdictions that have decided this issue is that the value of a check, in the absence of proof to show a lesser value, is measured by what the owner of the check could expect to receive for the check at the time of the theft, i.e., the check's face value. Id. at 1250 (citations omitted). In State v. Long, 516 N.W.2d 273 (Neb. App. 1994), the court held the value of stolen checks was their face value where the evidence shows the checks had been received in commerce. In adopting the majority rule, the court stated: After thoroughly reviewing the literature in this area, we agree with the majority view from other jurisdictions that in a theft case, in the absence of a specific statutory directive determining value, the face amount of a stolen check which has been accepted in commerce is the value of the property stolen. The courts in these cases reason that the instruments were valued by their rightful owners in the face amount of the checks, thus establishing value. Id. at 276 (citations omitted). For other cases holding the value of a stolen check for purposes of grading the theft offense is its face value, see United States v. Kucik, 844 F.2d 493 (7th Cir. 1988) (the prima facie value of the check is its face amount); People v. Marques, 520 P.2d 113 (Colo.1974) (en banc) (the prima facie value of a check is its face value); Bigbee v. State, 364 N.E.2d 149 (Ind. Ct. App. 2d Dist. 1977) (the face value of a negotiable bearer instrument is the value of the instrument for purposes of grading the theft); State v. Evans, 669 S.W.2d 708 (Tenn. Crim. App. 1984) (the face amount of the check represents its true value in the absence of any proof to show a lesser value because the victim was entitled to receive the face amount); State v. Pacheco, 636 P.2d 489 (Utah 1981) (per curiam) (the face value of the checks, whether endorsed or not, is prima facie evidence of the value that determines

much was in checks, the court of appeal determined the State presented evidence of all elements of theft of property having a value in excess of $500. 4

the degree and penalty relevant in a theft case); State v. McClellan, 73 A. 993 (Vt. 1909) (the value of a stolen check is its face amount because that is the amount it was worth to the victim); and State v. Lee, 904 P.2d 1143 (Wash. 1995) (en banc) (the key in determining the value of a deprivation is the loss to the victim rather than the benefit to the offender).4 See also 52A C.J.S. Larceny

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