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STATE OF LOUISIANA                                                             *   NO. 2008-KA-1398
VERSUS                                                                         *
                                                                                   COURT OF APPEAL
ALPHONSE J. GILMORE                                                            *
                                                                                   FOURTH CIRCUIT
                                                                               *
                                                                                   STATE OF LOUISIANA
                                                                               *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 474-270, SECTION “J”
Honorable Darryl A. Derbigny, Judge
Judge Roland L. Belsome
(Court composed of Judge James F. McKay, III, Judge Roland L. Belsome, Judge
Paul A. Bonin)
Leon A. Cannizzaro, Jr.
District Attorney
David S. Pipes, Jr.
Assistant District Attorney
1340 Poydras Street
Suite 700
New Orleans, LA 70112--1221
COUNSEL FOR THE STATE OF LOUISIANA
John Harvey Craft
LOUISIANA APPELLATE PROJECT
829 Baronne Street
New Orleans, LA 70113--1102
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED




Defendant-Appellant appeals his conviction and sentence for unauthorized
use of a motor vehicle.  For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Defendant Alphonse Gilmore was charged on November 28, 2007 with one
count of unauthorized use of a motor vehicle, a charge to which he pled not guilty
at his arraignment on December 10, 2007.   The court heard and denied a motion to
suppress the evidence on January 9, 2008.
At trial, Anthony Augello (“Augello”) testified that he owned a gold Chevy
Malibu.   On September 25, 2007, he parked the Malibu in a self-service parking lot
across the street from University Hospital at approximately 11:00 a.m.   Auguello
stated that he could not remember if he locked the car, but that he took his keys
with him when he left the car, and a valet key was left in the center console of the
car.   When Aguello returned to the parking lot at approximately 5:00 p.m. after
receiving medical treatment, the car was gone, and he reported the theft of his car
to the police.
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Arguello further testified that when he retrieved the car a few days later, the
car had no broken windows or other evidence that the car had been broken into;
that his old driver’s license, which he had stuck in some plastic that was over the
driver’s side door, was still in the place where he had left it; and his registration to
the car was still in the glove compartment.   Notably, Aguello stated that he did not
know Defendant and had not given him permission to use his car.
Detective Todd Durel (“Det. Durel”) testified that on September 27, 2007,
he was conducting a surveillance of 3403 Paris Avenue, and shortly after 1:30 p.m.
he  saw  two  men,  Defendant  Alphonse  Gilmore  and  Sterling  Harris,  exit  the
residence and walk to a gold  2005 Chevy Malibu.    Det. Durel stated that he
observed Gilmore use a key, which was by itself on a key ring, to enter the car, and
that Gilmore entered the driver’s side of the car, while Harris entered the passenger
side.     Det. Durel noted that the men left in the car, returned almost an hour later,
and again left in the car approximately half an hour after that, at which time
Defendant used the key to enter the car and drive away.1   After running the license
plate number on the car and learning that it had been reported stolen two days
earlier, Det. Durel testified that because he was conducting the surveillance, he
radioed other officers who met with him and ultimately arrested Defendant at the
scene.   Det. Durel did not prepare the police report, nor did he speak with the
vehicle’s owner.
Similarly, Officer Michael Stalbert  (“Off. Stalbert”) testified that he met
with Det. Durel and verified that the car was stolen; he arrested Defendant as he
was  standing  next  to  the  car,  searched  him,  and  found  the  key  to  the  car  in
Defendant’s pants pocket, which opened and started the car.   Off. Stalbert stated
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that his partner, Officer Robert Guesnon (“Off. Guesnon”), subsequently notified
the vehicle’s owner.   Off. Stalbert did not write the police report for the incident,
and, when questioned, could not explain why one part of the report indicated that
the car was stolen at 10:00 a.m. while another part of the report indicated that it
was stolen around  3:00 p.m.    Off. Stalbert further testified that he never saw
defendant driving the car and did not call for crime lab personnel to examine the
car because Det. Durel had observed defendant driving the car.
The  testimony  of  Off.  Guesnon  corroborated  that  of  his  partner,  Off.
Stalbert.   In addition, he testified that he contacted the owner of the car on his cell
phone, and when the owner indicated he could not retrieve the car at that time, he
had the car towed, and he provided the key to the towing company.   Off. Guesnon
stated that when he saw the car, it did not have any broken windows or door locks,
and the steering wheel was intact.    He stated that he did not ask the owner if
defendant had permission to use the car because the car had been reported stolen.
Defendant also testified, and denied knowing that the car was stolen or even
using the car, and admitted that he did not have a driver’s license.   He testified that
on the day of his arrest, he was visiting his friends Ronald and Akeem Crawford at
their house at 3403 Paris Avenue, and that he was in the bathroom when police
officers kicked in the door to the house.   He testified that the officers burst into the
bathroom and took him to the front of the house where the other people in the
house were being held.   Defendant insisted that the officers did not find the key to
the car in his pocket, but in a sofa inside the house.
On May 5, 2008, a six-person jury found Defendant guilty as charged.   After
ordering a presentence investigation, the court sentenced defendant to serve two
1                                                                                           Det. Durel testified that he did not observe anyone else driving the car.
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years at hard labor.   Counsel orally moved for reconsideration of sentence, and the
court denied the motion.  This appeal followed.
DISCUSSION
Errors Patent
A review of the record reveals no patent errors.
Assignment of Error
By his sole assignment of error, the appellant contends that the State failed
to present sufficient evidence to support his conviction.   Specifically, he argues
that there was no evidence that he knew the car was stolen and thus knew that he
did not have permission to use the car.
The Louisiana Supreme Court set forth the standard for evaluating a claim of
insufficient evidence in State v. Brown, 2003-0897, p. 22 (La. 4/12/05), 907 So. 2d
1, 18:
When reviewing the sufficiency of the evidence to
support  a  conviction,  Louisiana  appellate  courts  are
controlled  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 that the evidence, viewed in the light most
favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime
had been proved beyond a reasonable doubt.” State v.
Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing
State v. Captville, 448 So.2d 676, 678 (La.1984)).
When circumstantial evidence is used to prove the
commission of the offense, La. R.S. 15:438 requires that
“assuming every fact to be proved that the evidence tends
to  prove,  in  order  to  convict,  it  must  exclude  every
reasonable hypothesis of innocence.” Neal, 796 So.2d at
657.   Ultimately,   all   evidence,   both   direct   and
circumstantial must be sufficient under Jackson to prove
guilt beyond a reasonable doubt to a rational jury. Id.
(citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)).
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See also State v. Batiste, 2006-0875 (La. App. 4 Cir. 12/20/06), 947 So. 2d 810;
State v. Sykes, 2004-1199 (La. App. 4 Cir. 3/9/05), 900 So. 2d 156.
In this case, defendant was convicted of unauthorized use of a motor vehicle,
which is defined by La. R.S. 14:68.4 as “the intentional taking or use of a motor
vehicle 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 motor vehicle permanently.” La. R.S. 14:68.4 (emphasis
added).   Defendant argues that the State failed to show that he took the car or that
he had “fraudulent intent” in his use of the car, citing State v. Bias, 400 So.2d 650,
652  (La.  1981).    The  Court  in  Bias  noted  that  although  La.  R.S.  14:68  (the
unauthorized use of a movable) did not require that a person act with an intent to
deprive the owner permanently of his property, it “must reasonably be construed to
require the existence of fraudulent intent.”   Bias, 400 So.2d at 652.
In State v. Coleman, 2002-1487 (La.App. 4 Cir. 10/9/02), 830 So. 2d 341,
this Court found that the elements of La. R.S. 14:68.4 are established if the State
proves  that  a  defendant  knowingly  used  a  motor  vehicle  without  the  owner’s
consent.   In Coleman, the defendant was hired as a driver for the Salvation Army.
Coleman,  830 So.2d at  342.    His duties were to drive the company’s van and
transport workers; he had a set route and schedule in which to complete his work.
Id.   He failed to pick up the workers on his second day of work, and did not contact
the owner until several days later, when he called to say that the van had been
stolen.    Id.    On appeal, this Court upheld his conviction for La. R.S.  14:68.4,
finding that he knew that his use of the van was unauthorized once he deviated
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from the route and schedule and failed to return the van.2   Id.   See also State v.
Varnado, 01-367 (La. App. 5 Cir. 9/13/01), 798 So. 2d 191.3
Similarly, in State v. Jefferson, 97-2949 (La. App. 4 Cir. 4/21/99), 735 So.
2d 769, this court upheld a conviction pursuant to La. R.S. 14:68.4.   Defendant
Jefferson was the driver of the car, which she insisted she had borrowed from
someone, but only knew the person’s first name and did not know her address or
phone number.    This Court found that these factors could have made the jury
suspicious of Jefferson’s innocence, along with the fact that the car contained a
rental agreement in another person’s name, which should have alerted Jefferson
that the car was stolen.4
Defendant argues that because there was no damage to the car and that he
used a key to enter and drive the car, the State did not establish that he knowingly
used the car without permission.   However, as noted by the State, the owner’s
driver’s license was still inside the car, over the driver’s door, at the time the car
was seized, as well as the car’s registration, which was listed in the owner’s name.
Accordingly, defendant should have known that the car did not belong to him.   See
Jefferson, supra.   Although defendant testified that he did not drive the car, that he
2
Mr. Young's testimony at trial indicates that the defendant had authority to drive the van along a
certain route at a certain time so as to drop off and pick up the Salvation Army workers. He did
not have authority to use the van for his own purposes. Moreover, he was given a cell phone to use
in emergencies. He diverted the van from its proper use, did not complete his route, and did not
take the van back to the Salvation Army officer. Furthermore, he did not call his office to report
any problem until after he was incarcerated. Obviously, the reasonable inference is that the
defendant attempted to use the van belonging to the Salvation Army without its consent and for
his own purposes after he received possession of it. The evidence supports the jury's guilty verdict.
This assignment is without merit.
State v. Coleman, 830 So. 2d 341, 343.
3 Similarly, courts have upheld unauthorized use convictions in cases where defendants have taken cars from a
dealer’s lot for a “test drive” and not returned the cars.   See State v. Spencer, 97-811 (La. App. 5 Cir. 1/27/98), 707
So. 2d 119; State v. Carmon, 539 So. 2d 752 (La. App. 3 Cir. 1989).
4 In upholding Jefferson’s conviction, this Court distinguished State in Interest of O.B., 559 So. 2d 31 (La. App. 4
Cir. 1990).   In that case, this Court reversed a delinquency adjudication based upon the fact that the defendant was
the backseat passenger in a stolen car that had a key in the ignition and damage to the steering column that was not
visible from the defendant’s seat.
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only  saw  the  car  for  the  first  time  when  the  officers  removed  him  from  the
residence, and that he did not have the key to the car, the officers’ testimony on
each of these points plainly disputed that of defendant.   It is well-settled that a
factfinder’s credibility decision should not be disturbed unless clearly contrary to
the evidence.   State v. Huckabay, 2000-1082 (La. App. 4 Cir. 2/6/02), 809 So. 2d
1093; State v. Harris, 99-3147 (La. App. 4 Cir. 5/31/00), 765 So. 2d 432.   In this
case, the factfinder ostensibly found the officers’ testimony more credible than that
of defendant.   Moreover, the jury heard the owner’s testimony confirming that he
neither knew defendant nor gave defendant permission to use his vehicle.
For the foregoing reasons, we find that the State elicited sufficient evidence
for the jury to find defendant guilty of the unauthorized use of a motor vehicle
beyond a reasonable doubt.   Accordingly, the defendant’s conviction and sentence
are hereby affirmed.
AFFIRMED
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