State in the Intrest of T. H.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-179

STATE IN THE INTEREST OF T.H.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-2013924
HONORABLE HERMAN C. CLAUSE, JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and J. David Painter, Judges.

ADJUDICATION AFFIRMED.
DISPOSITION VACATED AND REMANDED.

Cooks, J., dissents and assigns written reasons.

Michelle Breaux, Assistant District Attorney
Michael Harson, District Attorney
District Attorney’s Office, Courthouse Building
P. O. Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR THE STATE OF LOUISIANA

Jane Hogan
P. O. Box 3622
Lafayette, LA 70502
(337) 232-9345
COUNSEL FOR DEFENDANT-APPELLANT:
T.H.

PAINTER, Judge.

The sixteen-year-old Defendant, T.H., was adjudicated guilty of theft, a

violation of La.R.S. 14:67, and sentenced to six months with the Office of Juvenile

Justice, suspended, placed on six months of active probation, and ordered to

complete forty hours of community service. T.H. now appeals, alleging that the

evidence is insufficient to support the conviction. For the following reasons, we

affirm the adjudication but vacate the disposition and remand the matter for

resentencing with instructions to the trial court to order credit for time spent in

secure detention, if any, prior to the imposition of disposition, as required by

La.Ch.Code art. 898(A), to inform T.H. of the two-year prescriptive period for

filing post-conviction relief as required by La.Code Crim.P. art. 930.8, and to order

the probation order to correctly reflect the adjudication hearing.

FACTS AND PROCEDURAL HISTORY

Detective Tracy Gerard, who was employed by the Lafayette Parish

Sheriff‟s Office, also worked as a security guard at Wal-Mart located on 1229

Northwest Evangeline Thruway. Detective Gerard recalled working at Wal-Mart

on May 22, 2013. He was with Rachelle Hebert, Asset Protection Manager for

Wal-Mart, in the security office. While watching closed circuit television of the

store from the security office, Ms. Hebert pointed out to Detective Gerard two

individuals in the shoe aisle.1 The detective described what he saw while watching

the closed circuit television, stating in pertinent part:

A [A]nd I witnessed the defendant and a black female together,
and the black female was pushing a basket that had several items in
the basket. There looked to be some type of either knapsack or purse
on the top portion of the basket, and it appeared to be open. He was --
he had something in his hands and --

1
The State refers to the in-store surveillance as “closed circuit T.V.” whereas T.H. refers
to it as video surveillance.

Q [by the STATE] Who‟s “he”? Is “he” the defendant?

A I‟m sorry. The defendant. The defendant had something in his
hands, and he kept playing with it, and it looked like he was wrapping
something around it. I couldn't tell at the time. And he handed the
item to the female, and he turned his back to the female and looked
down the aisle, as though he was looking to make sure --

....

Q Okay. What happened next?

A The black female then took that item and placed it into the --

Q Took what item?

A The item that he handed her and turned around and placed it
into the bag that was on top of the basket. She then proceeded to take
other items that were in the basket and also placed them into the bag.

Q Do you know what those other items were?

A It was several different items that I‟ve listed in the report that
we confiscated later.

Q And those items were already in the basket?

A Yes.

....

Q Could you tell the Court, then, what other items were in the
basket that were handed to Ms. Charles?

A There was the beach pants that were there, and there was a –
they use their code, so it's kind of difficult to explain. And then men‟s
swim trunks, some Superman T's, some woven shorts, some boys‟ T's,
some rash guard, there was two (2) packs of that, some woven shorts,
another pack, some jersey tank tops, another pair of shorts, and a
jersey tank, and the total was like seventy dollars and seventeen cents
($70.17).

Q Let me ask you, do you know how those items got into the
basket? Were you --

A No.

Q -- able to view that on closed circuit?

A When she drew my attention to them, there was items [sic] in
the basket.
2

Q When you‟re saying “she” --

A Rachelle, the loss prevention. When she said, “Look, they look
suspicious,” that‟s when I started. And I see the two (2) individuals
next to the basket, and there‟s items [sic] already in the basket.

Q Okay. And were you able to identify what item the defendant
handed to the person pushing the basket?

A The only item we removed that had anything wrapped around it
was the men‟s swim trunks, and what was wrapped around it was the
drawstring.

Q Okay. And in viewing the closed circuit, where did [T.H.]
retrieve this item?

A When I first noticed him, he had it in his hands.

....

Q All right. Did you monitor [T.H.] and the young lady, once you
saw this on closed circuit TV?

A (No response.)

Q From the time you saw him give the item to the young lady
until the time they exited the store?

A Once they started moving, we lost them off of that particular
camera.

Q Okay.

A And then -- I don't remember if Rachelle followed them from
that point. I went to the door to wait for them to come to the exit point.

Q Okay. Was there any explanation given as to the items in the purse?

A Not that I recall.

Q All right. Did you, at any point, speak with [T.H.]?

A As he exited the store, I told him he was under arrest for
shoplifting.

Q Did he have any explanation?

A Not that I recall.

Q All right. And [T.H.], the person that you identified, is the same
person that you saw on the closed circuit TV?
3

A Yes.

....

Q [by the Defendant‟s Attorney] Officer, earlier you testified that
on the last –once [T.H.] handed the shorts, or the trunks, to Ms.
Charles, that the camera lost footage, or they were not able to see at
that point. Isn‟t it correct that, at that point, [T.H.] went in one
direction and Ms. Charles went in another direction?

A When he handed them to her?

Q Yes. When he handed her his shorts, he went in another
direction. Could you see that from the video?

A Yeah, they were still in frame, they were still on the aisle. He
just turned and looked, as though – I mean, I've been doing it for
twenty-four (24) years --

Q I know, but you can‟t say what is in someone‟s mind.

A Huh?

Q So did he go in another direction, or did he not?

A No, he stayed right there. She put the items in the purse.

Q So your testimony is, he stayed with her the entire time?

A (Nods head indicating an affirmative response.)

Q And --

A He wasn't looking at her, no. He was looking in the opposite
direction from where she was, but he was standing next to her.

....

Q [by the State] [A]t the time the items was [sic] placed in the
purse, where was [T.H.]?

A He was there, but his back was to her.

....

A [W]hen I noticed him playing with the cord or whatever, she
was kind of looking at some stuff on the side. She stands back up, he
hands her the object, he turns towards the camera, she goes into the
top portion of the basket and places it into the bag.

4

Detective Gerard testified that Ms. Charles and T.H. moved away from the camera

that he was watching. Detective Gerard then went to the door to wait for the two

to exit. Detective Gerard testified as follows regarding the stop of T.H. and Ms.

Charles:

Q Okay. All right. Where was the stop made of [T.H.] and the
other lady?

A As they exited the store.

Q Okay. Did they have to pass registers?

A Yes.

Q Did they pay for the items?

A No.

Q Okay. And when they were stopped, where were the items
found?

A They were found in her purse.

The detective explained that T.H. did not exit the store at the same time as Ms.

Charles. Ms. Charles exited first, and Detective Gerard stopped her at that time.

He described T.H. as “he kind of hung back.” Detective Gerard testified that T.H.

did not walk out of the store with anything or conceal anything in his pocket, pants,

coat, or anywhere.

Ms. Hebert was with Detective Gerard in the security office watching T.H.

and Ms. Charles via closed circuit television. Ms. Hebert testified regarding Ms.

Charles stating in pertinent part:

A I know it was supposed to have been a relative. I do not -- I
know it wasn‟t the mother. The mother did not come until later, when
we called. But the female was younger than [T.H.], and then, like I
said, there was a, if I had to guess, maybe a five (5) or six (6) year old
that was with them as well.

Ms. Hebert recalled that Ms. Charles had merchandise in the bottom of her basket

which she was gathering and pushing to the back of her basket. T.H. was holding
5

merchandise in his hand, and he was balling it up and wrapping a drawstring

around the merchandise. Ms. Hebert testified that: “She [Ms. Charles] started

concealing merchandise from the basket into the purse, and he handed merchandise

to her and she concealed it into her purse.” The pertinent exchanges occurred

regarding the concealment:

Q [The State] [W]hile watching the security camera, was this
gentleman in a position to see the young lady placing the items in her
purse?

A [Ms. Hebert] Yes, he was.

Q Did he make an effort to stop the concealment?

A No, he did not.

....

Q [T.H.], what was he doing when the young lady put it in her
purse?

A He was standing next to her. While she was placing
merchandise inside of her purse, he was basically looking around, I
guess, to see if anybody was --

....

BY MS. BREAUX:

Q When you say “looking around,” I‟m assuming the young lady
is pushing the basket?

A Yes, she is.

Q What is T.H. -- where is he in relation to the young lady
pushing the basket?

A He's on the side of her.

Q Can you describe what he's doing? Is he watching her? Is he
shopping elsewhere? Can you describe what he is doing?

A He‟s on the side of her. They are pushing the basket on the back
aisle of shoes, and he's watching her with the merchandise and then as
well as looking down aisles as they pass the aisles.

....
6

Q [The Defendant‟s Attorney] And he was looking at her?

A During the concealment?

Q Uh-huh.

A Yes.

Q So if the officer said that he was not – that he was looking in
the other direction, that would not be correct?

A Correct. I mean, whenever she was concealing, he was
watching her conceal, and then he also whenever -- like I stated,
whenever she was concealing, when they continued to walk --
Because when they were concealing, they were stopped. Whenever
they started concealing -- or when they finished concealing, they
started walking, and he was looking around to the side aisles.

Ms. Hebert described the item that the juvenile gave to Ms. Charles as swim trunks.

When asked what happened after the item was concealed in the purse, Ms. Hebert

responded:

A We continued to follow the individuals until they came up to
the front of the store. After they passed all points of sale, entered the
vestibule, we opened the door to the Loss Prevention office[,] and
[Detective] Gerard asked the individuals to come in the office.

On cross-examination, Ms. Hebert clarified that she did not approach T.H. or Ms.

Charles, but Detective Gerard did.

At the conclusion of the State‟s case, T.H.‟s attorney moved for a directed

verdict and the following pertinent exchange occurred:

MS. BROWN [Defense]: Yes. Motion for Directed Verdict on the
issue of, he was not charged as a principal in the matter, he was
charged as the person who actually took an item, which he didn't take.
There was no testimony saying he took anything. And based on that
particular motion, I would like to Motion for Directed Verdict on the
fact that he didn't take, and taking is an integral part of the theft, with
intent to permanently deprive.

THE COURT: Response?

MS. BREAUX[ State]: Judge, he was an active participant in the theft.
Not only did he have the trunks in his hand, did he place the
drawstring around it to make it smaller, he handed it to the person to
7

conceal, and he was right alongside of the person. Didn‟t make any
attempt to stop from concealing. The only thing he didn‟t do was
place it into the purse. So he‟s just as guilty of theft as the person
putting it in the purse.

THE COURT: Motion for Directed Verdict denied.

T.H. testified that his mom had dropped himself, Ms. Charles, and his five

year old brother at the store. Ms. Charles was purchasing items for her boyfriend

and asked T.H. if he wanted something. T.H. picked some shorts. T.H. stated that

he did not wrap a string around the shorts because the shorts did not have a string

on them. T.H. admitted that he handed the shorts to Ms. Charles. T.H. was of the

opinion that Ms. Charles was going to buy him the shorts because she had bought

things for him in the past. The following pertinent exchange occurred between

T.H. and his attorney:

Q Did you know of her taking something before?

....

A No.

....

Q Has she ever made purchases for you before?

A Yes, ma'am.

Q Have you ever made purchases for her before?

A When I have, the money, yes, ma‟am.

Q You have bought things for her -- items for her?

A (Nods head indicating an affirmative response.)

Q So when she asked to go to the store with you, it was not
anything unusual?

A No, ma‟am.

Q And it‟s your testimony that you did not wrap anything around
the shorts because there was no string on the shorts?

8

A No, ma‟am. I just had the shorts in my hand.

Q And you gave them to her?

A Yes, ma‟am.

Q Did you have any intent to take those shorts from the people
from the store?

A No, ma‟am.

Q Any of the other items that they testified to they found in her
purse, did you have anything to do with those items?

A No, ma‟am. They weren‟t even -- they weren‟t my size.

Q They weren‟t your size?

A No, ma‟am.

Q Had they been your size, would you have had anything to do
with them?

A No, ma‟am.

On cross-examination, T.H. explained that he picked out the shorts and held

them up to see if they would fit him. When he saw the price, he knew he could not

buy them. According to T.H., Ms. Charles offered to buy them for him. T.H.

recalled that Ms. Charles put the shorts on top of the handle of the shopping cart

that one uses to push the shopping cart. He admitted that Ms. Charles‟s purse was

in the front part of the shopping cart where children usually sit and that the shorts

were near the purse. T.H. stated that after he handed her the shorts, “we went our

separate ways.” T.H. denied seeing Ms. Charles put the other items in her purse.

T.H. testified that he went to purchase some candy for school. T.H. stated that he

had money to buy the candy, but before he could do so, the security officer called

him over to talk. T.H. denied seeing Ms. Charles pass the cash register. During

cross-examination by the State, the following pertinent exchange occurred:

Q Did you see Ms. Charles purchase anything at all?

9

A No, ma‟am.

Q She didn‟t purchase a bottle of Sprite?

A No, ma‟am.

Q You didn‟t see her go through the checkout and purchase a
bottle of Sprite?

A No, ma‟am.

Q All right. The next time you see her, then, is when she‟s with an
officer?

A Yes, ma‟am.

The State offered no evidence to rebut T.H.‟s testimony that he did not see

Ms. Charles go through the checkout line. T.H. stated that he saw the security

officers stop Ms. Charles. He explained that after the security officers stopped Ms.

Charles, the security officers motioned for him to come over to them. He testified

that he did not know that Ms. Charles had not purchased the shorts until he was

called into the security office at Wal-Mart.

On re-direct examination by the State, Detective Gerard testified that he did

not motion for T.H. to come over to him. He explained that he stopped T.H. while

he was walking out of the store and that Ms. Charles was already in the security

office.

The swim trunks, Ms. Charles‟ purse or bag, and the video were not

introduced into evidence.

On October 9, 2013, the State filed a Petition charging T.H., age sixteen,

with theft, valued at $75.78, a violation of La.R.S. 14:67.

An adjudication hearing was held on December 16, 2013. The trial court

found T.H. guilty of the charged offense. On that same date, the trial court

sentenced T.H. to six months with the Office of Juvenile Justice, suspended, and

10

placed T.H. on six months of active probation. T.H. was ordered to complete forty

hours of community service.

On appeal, T.H. assigns two errors:

1. The juvenile court erred when it overruled defense‟s objection to
hearsay testimony concerning the Wal-Mart surveillance video. The
state did not make a showing that the video was destroyed or
unavailable. Given the divergent accounts of what occurred from the
state‟s witnesses, the video should have been produced as not only
“best evidence” but also as potentially exculpatory evidence.

2. The juvenile court erred by adjudicating T.H. guilty of theft despite
insufficient evidence. Considering the conflicting testimony by state
witnesses, the failure of the state to prove T.H. had a requisite intent
to steal, and reliance on testimony concerning an unproduced
surveillance video, the evidence was insufficient to convict T.H. of
theft.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find several

errors patent.

At the appearance hearing to answer the State‟s petition, the trial court failed

to advise the juvenile as required by La.Code Crim.P. art. 855. In State v. Erven,

36,332 (La.App. 2 Cir. 10/23/02), 830 So.2d 368, the court held that at the

appearance hearing to answer the state‟s petition, the court is required, pursuant to

La.Ch.Code art. 855, to first determine if the juvenile is capable of understanding

his/her rights, and if so, to advise the child of his/her rights, including the nature of

the proceedings, the nature of the allegations of the petition, the right to an

adjudication hearing, the right to appointed counsel, and the right against self-

incrimination. In State in Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641

So.2d 633, the court applied the harmless error analysis when the trial court failed

11

to advise the juvenile of his rights under art. 855. In J.G., the court found the error

was harmless since the record reflected that the juvenile was represented by

counsel when he appeared in court and that he pled not guilty to the charges

against him. In the present case, the record indicates the juvenile was represented

by counsel and denied the allegation. Thus, we find that the error was harmless.

The trial court failed to conduct a disposition hearing, and the record before

this court does not indicate the Defendant waived the hearing. Louisiana

Children‟s Code Article 892 provides, “[p]rior to entering a judgment of

disposition, the court shall conduct a disposition hearing. The disposition hearing

may be conducted immediately after the adjudication and shall be conducted

within thirty days after the adjudication. Such period may be extended for good

cause.” Louisiana Children‟s Code Article 893 provides in pertinent part:

A. At the disposition hearing, unless the child waives the
presentation, the court shall hear evidence as to whether the child is in
need of treatment or rehabilitation and shall make and file its findings.

B. All evidence helpful in determining the proper disposition,
including oral and written reports, the report of the predisposition
investigation, any reports of mental evaluation, and all other evidence
offered by the child or the state shall be received by the court and may
be relied upon to the extent of its probative value even though not
admissible at the adjudication hearing. Upon motion of the district
attorney or the child, the court may hear testimony from the victim of
the offense.

C. Counsel for the state and for the child shall be afforded an
opportunity to present evidence and to examine and controvert written
reports so received and to cross-examine individuals preparing the
reports or other witnesses who give testimony at the hearing. Sources
of confidential information need not be disclosed.

In State ex rel. T.W., 09-532, pp. 8-10 (La.App. 3 Cir. 10/7/09), 21 So.3d

465, this court found merit to the juvenile‟s assigned error on appeal that the trial

court erred in failing to conduct a disposition hearing. This court held in pertinent

part:

12

Immediately after the adjudication in the case at bar, the
following transpired:

THE COURT: All right. The Court finds the defendant
guilty as charged and orders the defendant to serve--

MS. NEUMANN: Judge, before you set that, we might
just indicate that he‟s been in jail since August, which is
six (6) months. He has been a model prisoner. He has
helped in--

THE COURT: This is a serious offense. I understand.
This kid is in denial, and I don‟t like what I‟ve heard.
And he‟s going to serve until his twenty-first (21st)
birthday because that‟s as long as I can lock him up for.

MS. BREAUX: You have to, Judge. You have no
discretion.

THE COURT: Yes.

MS. BREAUX: Thank you.

The Juvenile asserts that familiarity with a juvenile and a
lengthy history with the trial court does not absolve the trial court
from conducting a disposition hearing. Further, counsel‟s failure to
object to the immediate disposition did not waive his right to a
hearing. In support of his argument, the Juvenile cites State in the
Interest of O.R., 96-890 (La.App. 5 Cir. 2/25/97), 690 So.2d 200;
State ex rel. E.S., an unpublished opinion bearing docket number 08-
41 (La.App. 4 Cir. 8/20/08); and State in the Interest of C.D., 95-160
(La.App. 5 Cir. 6/28/95), 658 So.2d 39.

In C.D., 658 So.2d 39, and O.R., 690 So.2d 200, the fifth circuit
vacated the dispositions and remanded for disposition hearings where
the record failed to reflect that disposition hearings had been held, and
the record failed to reflect that the juveniles waived such a hearing.

In State in the interest of K.G., 34,535 (La.App. 2 Cir. 1/24/01),
778 So.2d 716, the trial court conducted a summary disposition
without a hearing. The second circuit vacated the disposition and
remanded for a disposition hearing or a clear waiver of the hearing. In
reaching its decision, the second circuit chose not to interpret defense
counsel‟s silence as a waiver.

In light of the mandatory language of La.Ch.Code art. 892, we
vacate the disposition and remand the case for a disposition hearing.

Id. at 471-72.

13

In State in the Interest of C.D., 95-160, pp. 5-7 (La.App. 5 Cir. 6/28/95), 658

So.2d 39, 41-42 (footnotes omitted) on error patent review, the fifth circuit held:

La.Ch.C. art. 892 requires the trial court to conduct a
disposition hearing prior to entering a judgment of disposition.
Upon review, we do not see anywhere in the record where a
disposition hearing was held nor do we find any indication such a
hearing was waived by defendant. The purpose of such a hearing is to
hear evidence in order to make a determination of whether the child is
in need of treatment or rehabilitation. Once the trial court finds the
child is in need of treatment or rehabilitation, the court is to make the
appropriate disposition as set forth by La.Ch.C. arts. 895-899.
La.Ch.C. art. 894.

....

Because the trial court‟s discretion in ordering the length of time a
juvenile is to remain in custody for an armed robbery conviction is
determined by the disposition hearing, we have no choice but to
vacate the sentence and remand the matter for a disposition hearing.

State in the Interest of O.R., 96-890 (La.App. 5 Cir. 2/25/97), 690 So.2d 200

involved a similar situation. The juvenile argued on appeal that the court erred in

sentencing him without a presentence investigation and relying only on the court‟s

limited experience with him. The court noted that although a presentence

investigation report is not required, the trial court erred in not holding a disposition

hearing as required by art. 892. The appellate court held:

In the case before us, the court did not conduct a disposition
hearing. While counsel did not object to the court‟s immediate
disposition without a hearing, there is nothing in the record to indicate
that counsel waived the juvenile‟s right to a hearing or his right to
present evidence as set forth in LSA-Ch.C. art. 893. Although the
Juvenile Judge was familiar with O.R. and his lengthy history with the
court, the Judge‟s familiarity with the juvenile does not dispense with
the need for a disposition hearing. Absent a waiver by the juvenile,
which does not appear in this record, the Juvenile Judge erred in
failing to conduct a hearing prior to entering a judgment of
disposition. See State in Interest of C.D., supra.

Accordingly, we vacate the disposition and remand for a
disposition hearing in accordance with LSA-Ch.C. arts. 892 and 893.

Id. at 202.

14

In State in the Interest of K.G., 34,535 (La.App. 2 Cir. 1/24/01), 778 So.2d

716 (footnote omitted), the juvenile argued on appeal that he was denied due

process because no evidence was presented at the disposition hearing. The court

held:

Although in this case the trial court classified the proceedings
as a disposition hearing, it is clear that no evidence of K.G.‟s need of
treatment or rehabilitation was adduced. Therefore, in effect, the
court rendered a summary disposition without a hearing. Of course,
La. Ch.C. art. 893 provides for a waiver of the presentation of
evidence. In State in Interest of O.R., 96-890 (La.App. 5th
Cir.02/25/97), 690 So.2d 200, the court vacated an immediate
disposition made without a hearing, and remanded the case for a
disposition hearing. Therein, the court noted that counsel's failure to
object did not amount to a waiver of the juvenile‟s right to a hearing
or his right to present evidence as set forth in La. Ch .C. art. 893. See,
also, State In Interest of C.D., supra.

We recognize the factual distinction regarding the timing of the
sentencing in State in Interest of O.R., supra, and the present case.
Nevertheless, we determine that distinction to be of no moment to the
resolution of the present issue because, as noted above, the trial court
here also effectively rendered a summary disposition without a
hearing, although not immediately after the adjudication. Considering
these cited cases and the mandatory language utilized by the
legislature in La. Ch.C. art. 893, we decline to interpret counsel‟s
mere silence as a waiver of the presentation of evidence by K.G.
Accordingly, it is necessary that we vacate the disposition and remand
for a disposition hearing or a clear waiver of those proceedings in
accordance with La. Ch.C. arts. 892, 893 and 897.1(B).

Id. at 726.

Recently, in State in the Interest of T.E., 11-1172 (La.App. 4 Cir. 9/19/12),

100 So.3d 963, the juvenile claimed on appeal that the court erred in imposing an

out-of-home disposition immediately after adjudication without allowing him to

present evidence. The fourth circuit found that the disposition hearing was waived

under the following circumstances:

The record reflects that before the adjudication hearing on July
18, 2011, defense counsel confirmed that defendant had not shown up
to the Evening Reporting Center or to summer school as required by
the court. The court inquired into the reason for defendant‟s absences,
and explained that participation was an alternative to detention.
15

Defendant answered that he was afraid for his safety because
“somebody” was after him and they knew how to find him. Indicating
its intention to find a safe place for defendant, the court proceeded
with the adjudication hearing.

After the matter was submitted, the court asked defense counsel
if she would like to defer disposition. Defense counsel responded in
the affirmative; then the court alternatively offered to go forward.
Defense counsel responded that she would like a ruling on the guilt or
innocence of defendant. The court replied: “Well, you know, I‟ll just
give the ruling and the disposition at the same time. If you want to
defer it then I‟ll just give the ruling.” Defense counsel said: “That‟s
fine.” The court proceeded to adjudicate defendant a delinquent, then
it gave a disposition recommending six months of non-secure care in
the custody of the Office of Juvenile Justice, in a location outside of
Orleans Parish. The court opined that this was in defendant‟s best
interest due to concerns for his safety and stated that defendant would
be held at the Youth Study Center pending placement. Claiming that
she had no opportunity to present evidence to the court on defendant‟s
behalf, defense counsel requested a stay of the execution of sentence.
The court asserted that defense counsel had responded in the
affirmative when asked if she wanted the court to give a disposition.
Asserting that she misunderstood the court‟s question, defense
counsel clarified that she had only wanted the court to issue an
adjudication, then she objected to the defendant being taken into
custody without an opportunity to present evidence on his behalf.

Next, defendant‟s grandmother indicated that they would be
moving, and defense counsel urged the court, “at the very least,” to
revisit the issue after they had moved. Although the defendant
claimed that he was supposed to enter a church program, neither he
nor his grandmother had sufficient information regarding the program.
Reiterating its concern for defendant‟s safety, the court maintained its
original decision to have the defendant removed from his
environment. However, it agreed to release him to his grandmother
upon the receipt of sufficient information regarding the church
program.

Defense counsel requested a hearing within 72 hours, where
defendant would then be remanded if he was not in the program. The
court agreed to a 72-hour status hearing, but kept defendant in custody
for his safety, noting his grandmother‟s concern, and his grandmother
agreed.

At that point, there was some confusion about whether the
disposition was being deferred and the court asserted that it had
already given its disposition. The court restated the disposition given
and indicated that the next hearing would be a status hearing on
whether the defendant would be released to attend the church
program. At the court‟s request and without objection, defense
counsel clarified that the status hearing was to present an alternative
16

to the disposition; however, she acknowledged that she was relying
“largely” on the church program as an alternative.

The court asserted that there would be no hearing without
further information on the church program. Subsequently, on July 21,
2011, the day of the status hearing, a court judgment indicated that
defense counsel was unable to get the information for the program.

Considering the foregoing, we find that defendant waived his
right to a disposition hearing. Although a failure to object to the
court‟s immediate disposition without a hearing does not serve as a
waiver; here, defense counsel made an initial objection, then waived
that objection when she requested three days to present an alternative
to the court‟s disposition and the court agreed to that alternative. The
court recounted its disposition and stated that the hearing would be a
status hearing. Defense counsel, without complaint, clarified the
purpose for the status hearing and admitted that she was depending
largely on the church program as an alternative disposition. The
judgment from the status hearing reflects that defense counsel was
unable to obtain information for the church program. The record
reveals no further objection or request for reconsideration. Thus, by
waiving his initial objection, defendant waived his right to a formal
disposition hearing.

On appellate review, a disposition hearing may be deemed
insufficient for the juvenile court‟s failure to hear evidence on the
defendant‟s individual need for treatment or rehabilitation. State ex
rel. E.D.C., 39,892, (La.App. 2 Cir. 05/11/05), 903 So.2d 571.
However, once this Court determines, as in this case, that the
defendant has waived his right to the disposition hearing, no further
inquiry into the hearing process is necessary.

Id. at 965-66 (footnote omitted).

In the instant case, the following exchange occurred at the close of the

adjudication proceeding:

THE COURT: I‟ll find the defendant guilty. Is there a
recommendation?

MS. BROWN: I‟d like a --

THE COURT: What?

MS. BROWN: Doesn‟t matter.

THE COURT: Is there a recommendation?

MS. BREAUX: I'm sorry? What did --

17

THE COURT: Is there a recommendation for sentencing?

MS. BREAUX: Yes, there is, Judge. Six (6) months with the
Department of Youth Services and Corrections, suspended; six (6)
months active supervised probation; forty (40) hours of community
service. That is the recommendation.

THE COURT: Any response?

MS. BROWN: I‟d like to ask that he not have the community service
since he did the eleven (11) weeks at Teen Court.

THE COURT: That was -- Was it on this charge?

DEPUTY CLERK: No.

MS. BROWN: No, it was not on this charge.

THE COURT: It was on a different charge.

MS. BREAUX: Right.

THE COURT: No, I‟m going to - - we‟ll sentence him in accordance
with the State‟s recommendation.

Unlike in State in the Interest of T.E., in T.H.‟s case there was no objection

or waiver of the objection, and there was no waiver of the disposition hearing.

Consequently, we find that the disposition must be vacated and that the matter

must be remanded for a disposition hearing, or a waiver thereof, in accordance

with La.Ch.Code arts. 892 and 893.

At resentencing, the trial court should order credit for time T.H. spent in

secure detention, if any, prior to the imposition of disposition, as required by

La.Ch.Code art. 898(A). See State in the Interest of J. F., 03-321, p. 8 (La.App. 3

Cir. 8/6/03), 851 So.2d 1282. Additionally, the trial court should inform T.H. of

the two-year prescriptive period for filing post-conviction relief as required by

La.Code Crim.P. art. 930.8. See State in the Interest of J.C.G., 97-1044 (La.App. 3

Cir. 2/4/98), 706 So.2d 1081 and State ex rel. J. F., 851 So.2d 1282.

18

The probation order in this incorrectly states, “that the Juvenile having been

adjudicated Delinquent for the following offense(s): THEFT < $300.00, THEFT <

$300.00 14:67A” At the beginning of the proceeding, the State announced that it

was proceeding on one count of theft. At the conclusion of the adjudication, the

trial court stated: “I‟ll find the defendant guilty.” This court hereby orders that the

new probation order issued after the disposition hearing accurately reflect the

transcript of the adjudication hearing. See State v. Wommack, 00-137 (La.App. 3

Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

Sufficiency of the Evidence

T.H. challenges the sufficiency of the evidence.

In State v. Hearold, 603 So.2d 731, 734 (La.1992) (footnote omitted), the

court held in pertinent part:

When issues are raised on appeal both as to the sufficiency of
the evidence and as to one or more trial errors, the reviewing court
should first determine the sufficiency of the evidence. The reason for
reviewing sufficiency first is that the accused may be entitled to an
acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67
L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in
accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) in the light most favorable to the prosecution,
could not reasonably conclude that all of the essential elements of the
offense have been proved beyond a reasonable doubt. When the
entirety of the evidence, including inadmissible evidence which was
erroneously admitted, is insufficient to support the conviction, the
accused must be discharged as to that crime, and any discussion by
the court of the trial error issues as to that crime would be pure dicta
since those issues are moot.

On the other hand, when the entirety of the evidence, both
admissible and inadmissible, is sufficient to support the conviction,
the accused is not entitled to an acquittal, and the reviewing court
must then consider the assignments of trial error to determine whether
the accused is entitled to a new trial. If the reviewing court
determines there has been trial error (which was not harmless) in
cases in which the entirety of the evidence was sufficient to support
the conviction, then the accused must receive a new trial, but is not
entitled to an acquittal even though the admissible evidence,
considered alone, was insufficient. Lockhart v. Nelson, 488 U.S. 33,
109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
19

T.H. argues that “[c]onsidering the conflicting testimony by state witnesses,

the failure of the state to prove T.H. had a requisite intent to steal, and reliance on

testimony concerning an unproduced surveillance video, the evidence was

insufficient to convict T.H. of theft” and states that:

T.H. did not make an inculpatory statement to law enforcement.
Ms. Charles did not give a statement to law enforcement, nor did she
testify at trial as to whether T.H. knew that a theft was going to occur.
Both [Detective] Gerard and Ms. Hebert testified that when T.H. was
arrested he had did not have a stolen item in his hands, or otherwise
on his person. T.H. was not with Ms. Charles when she left the store.
T.H. testified that he did not know that Ms. Charles intended to steal
the shorts. The only thing that was proved beyond a reasonable doubt
is that T.H. handed a pair of shorts to Ms. Charles.

Further, the divergent testimony elicited from [Detective]
Gerard and Ms. Hebert is detrimental to the state‟s case. [Detective]
Gerard, a police officer with nine years of experience, testified that
T.H. did not witness Ms. Charles placing the shorts in her bag. Ms.
Hebert, a Walmart employee, testified that T.H. watched Ms. Charles
place the shorts in her bag. If T.H. did not witness the theft take place,
then the state has failed to prove, beyond a reasonable doubt, that he
specifically intended for Ms. Charles to steal the item.

In State v. Mitchell, 13-426, p. 3 (La.App. 3 Cir. 11/6/13), 125 So.3d 586,

590 (quoting State v. Spears, 05-964, p. 2 (La. 4/4/06), 929 So.2d 1219, 1222), the

court stated:

When reviewing the sufficiency of the evidence to
support a conviction, Louisiana appellate courts are
controlled by the standard enunciated by the United
States Supreme Court in Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v.
Captville, 448 So.2d 676, 678 (La.1984). That standard
dictates that to affirm the conviction 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 the State proved all
elements of the crime beyond a reasonable doubt. State v.
Johnson, 03-1228, p. 4 (La.4/14/04), 870 So.2d 995, 998;
Captville, 448 So.2d at 678.

In State v. Thompson, 13-194, pp. 2-3, 7-8 (La.App. 3 Cir. 10/9/13), 123

So.3d 360, 362, 365, this court explained in pertinent part:
20

The credibility of a witness is a matter of weight of the
evidence, not sufficiency, and determination of the credibility is left to
the finder of fact's sound discretion and will not be re-weighed on
appeal. State v. F.B.A., 07-1526 (La.App. 3 Cir. 5/28/08), 983 So.2d
1006, writ denied, 08-1464 (La.3/27/09), 5 So.3d 138.

....

The appellate court‟s authority to review questions of fact in a
criminal case is limited to the sufficiency of the evidence evaluation
under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). The appellate court‟s function is not to assess credibility
or re-weigh the evidence. State v. Helou, 02-2302 (La.10/23/03),
857 So.2d 1024. “In the absence of internal contradiction or
irreconcilable conflict with physical evidence, one witness‟s
testimony, if believed by the fact finder, is sufficient support for a
requisite factual conclusion.” State v. Dorsey, 10-216, p. 44-45
(La.9/7/11), 74 So.3d 603, 634, cert. denied, --- U.S. ----, 132 S.Ct.
1859, 182 L.Ed.2d 658 (2012).

....

“[I]rrational decisions to convict will be overturned, rational
decisions to convict will be upheld, and the actual fact finder‟s
discretion will be impinged upon only to the extent necessary to
guarantee the fundamental protection of due process of law.” State v.
Mussall, 523 So.2d 1305, 1310 (La.1988) (emphasis in original). See
also State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ
denied, 09-1955 (La.6/25/10), 38 So.3d 352.

In State v. Draughn, 05-1825, pp. 7-8 (La. 1/17/07), 950 So.2d 583, 592-93,

cert. denied, 552 U.S. 1012, 128 S.Ct. 537 (2007), the court explained in pertinent

part:

Additionally, where circumstantial evidence forms the basis of the
conviction, the evidence must exclude every reasonable hypothesis of
innocence, “assuming every fact to be proved that the evidence tends
to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9
(La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122
S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.
R.S. 15:438 “works with the Jackson constitutional sufficiency test to
evaluate whether all evidence, direct and circumstantial, is sufficient
to prove guilt beyond a reasonable doubt to a rational jury.” Neal,
2000-0674 p. 9, 796 So.2d at 657.

....

21

Specific intent may be inferred from the circumstances surrounding
the offense and the conduct of the defendant. La. R.S. 14:10(1); Neal,
2000-0674 p. 10, 796 So.2d at 657.

In State v. Dotson, 04-1414, p. 2 (La. App. 3 Cir. 3/2/05), 896 So.2d. 310,

313, the court explained:

[W]hen the conviction is based upon circumstantial evidence,
La.R.S. 15:438 provides that such evidence must exclude every
reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207
(La.1984); State v. Wright, 445 So.2d 1198 (La.1984). However,
La.R.S. 15:438 does not establish a stricter standard of review on
appeal than the rational juror's reasonable doubt standard. The statute
serves as a guide for the jury when considering circumstantial
evidence. On appeal, the issue is whether a rational trier of fact, when
viewing the evidence in a light most favorable to the prosecution,
could find that all reasonable hypotheses of innocence were excluded.

In State v. Rabalais, 99-623, p. 6 (La.App. 3 Cir. 1/26/00), 759 So.2d 836,

840, the court explained in pertinent part:

Theft is defined in La.R.S. 14:67 as follows:

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 representation. An intent to deprive the other
permanently of whatever may be the subject of the misappropriation
or taking is essential.

The Louisiana Supreme Court expressed in State v. Victor, 368
So.2d 711, 713 (La.1979), there are three essential elements of the
crime of theft which must be proved by the prosecution beyond a
reasonable doubt:

1. The “misappropriation or taking of anything of value
which belongs to another,”

2. Either “without the consent of the other . . . or by
means of fraudulent conduct,”

3. With “intent to deprive the other permanently” of the
object of the taking or misappropriation.

22

In State v. Brooks, 00-106, p. 7 (La.App. 5 Cir. 9/26/00), 769 So.2d 1242,

1246 (footnotes omitted), the court explained in pertinent part:2

All persons concerned in the commission of a crime, whether
present or absent, and whether they directly commit the act
constituting the offense, aid and abet in its commission, or directly or
indirectly counsel or procure another to commit the crime, are
principals.

This rule has important qualifications. Only those persons who
knowingly participate in the planning or execution of a crime are
principals. Mere presence at the scene is not enough to “concern” an
individual in the crime. All persons “concerned” in the commission
of an offense, either directly or indirectly, are principals in the crime,
and culpable according to the mental state they possess at the time of
the offense.

In State v. Victor, 368 So.2d 711, 714-15 (La.1979), the court explained:

The factual issue of whether there is a “taking” for purposes of
a theft concerns whether the offender exerts control over the object
adverse to or usurpatory of the owner‟s dominion.

For instance, under usual circumstances the ordinary shopper
does not disturb the owner's dominion by handling goods displayed
for sale. The mere fact that a customer has removed a large item from
its package, in order to inspect it, will not ordinarily be any evidence
of theft. In this instance, no inference arises of any intent to deprive
the owner permanently of the object, nor does even any inference
arise of a “taking” i. e., an intent to usurp or negate the owner's
dominion.

2
T.H. was not charged as a principal to the crime. However, in State v. Peterson, 290
So.2d 307 (La.1974), the court explained that is not necessary:

Code of Criminal Procedure Article 464 requires that the indictment be a
plain, concise and definite written statement of the essential facts constituting the
offense charged. Article 465 of the Code of Criminal Procedure specifically
authorizes the use of a short form indictment in charging murder. Nowhere, in
any of our Code of Criminal Procedure provisions or elsewhere, is it required that
a person charged with an offense who did not directly commit the act constituting
the offense be specifically denominated a „principal‟. Any and all persons
involved in the commission of a crime to an extent which will satisfy the
definition of “principal” stated in R.S. 14:24, whether the direct perpetrator of the
act constituting the offense or not, may be charged with commission of the
offense. There is absolutely no requirement that an indictment explicitly
denominate the accused as “principal”. That the accused is indicted for the
offense itself, and not charged as an accessory after the fact, irrefutably evidences
that he is charged as a principal.

Id. at 308.

23

In the present case, the trial court could reasonably conclude
from the evidence that the defendant had concealed the store‟s goods
in the terrarium box and had then directed his daughters to the
checkout counter (where they would be charged only for the less
expensive terrarium but not for the goods concealed within the box).

The defendant‟s hiding the television set in the box is under the
circumstances at least some evidence of a “taking”, although it may
not have given rise to an inference of an intention to deprive the
owner permanently of the latter's property. Nevertheless, the trier of
fact could conclude beyond a reasonable doubt from the evidence as a
whole, not only a taking, but also an intent by it to deprive the owner
permanently of the objects concealed in the terrarium box.

In this case, T.H. admits that he gave the swim trunks to Ms. Charles. The

element or elements which the State was required to prove were a taking with

intent to permanently deprive Wal-Mart of the swim trunks. The State‟s case is

based upon circumstantial evidence.

T.H. denied taking the swim trunks with the intent to deprive Wal-Mart of

them permanently. He asserts that he believed that Ms. Charles was going to buy

him the swim trunks based upon what she told him at the store, and in the past, she

had bought him things. T.H. denied seeing Ms. Charles put the swim trunks in her

purse. T.H. testified that he became aware that Ms. Charles had not paid for the

swim trunks only after being called into the security office. No merchandise from

the store was found on T.H.

Ms. Hebert testified that T.H. saw Ms. Charles conceal them. As noted

above, Ms. Hebert viewed this alleged action via closed caption television and

testified to the following particulars:

 Q [W]hile watching the security camera, was this
gentleman in a position to see the young lady placing the items
in her purse?
A Yes, he was.
Q Did he make an effort to stop the concealment?
A No, he did not.

 Q [T.H.], what was he doing when the young lady put it in
her purse?
24

A He was standing next to her. While she was placing
merchandise inside of her purse, he was basically looking
around, I guess, to see if anybody was --

 He is on her side . . . . [H]e is watching her with the
merchandise as well as looking down aisles . . . .

 Q So if the officer said that he was not -- that he was
looking in the other direction, that would not be correct?
A Correct. I mean, whenever she was concealing, he was
watching her conceal, and then he also whenever -- like I stated,
whenever she was concealing, when they continued to walk --
Because when they were concealing, they were stopped.
Whenever they started concealing – or when they finished
concealing, they started walking, and he was looking around to
the side aisles.

Detective Gerard was asked several times about whether T.H. saw Ms.

Charles conceal the swim trunks in the purse, and each time he said that T.H. was

looking away or turned away from Ms. Charles when she concealed the item in her

purse.

The State suggests that T.H. wadding up the swim trunks and wrapping a

draw sting around the swim trunks was evidence of his intent to permanently

deprive Wal-Mart of the swim trunks. But, other circumstantial evidence to

support this element or elements is whether or not T.H. was aware that Ms. Charles

exited the store without paying for the swim trunks. T.H. denied seeing Ms.

Charles pass the checkout line. Ms. Hebert gave general testimony that they

continued to follow the individuals until they came up to the front of the store and

that after they passed all points of sale, entered the vestibule, she and Detective

Gerard opened the door to the Loss Prevention office, and Detective Gerard asked

the individuals to come in the office.

Detective Gerard explained that once T.H. and Ms. Charles started moving,

they could not be seen on that particular camera and that he did not remember if

Ms. Hebert followed them from that point but that he went to the door to wait for

25

them to come to the exit point. The detective stated that T.H. did not exit the store

at the same time as Ms. Charles but that Ms. Charles exited first and that Detective

Gerard stopped her at that time. He stated that T.H. “kind of hung back.”

Detective Gerard testified that when he stopped T.H. and brought him into the

security office, Ms. Charles was already in the office.

We find that the State excluded T.H.‟s hypothesis of innocence and affirm

T.H.‟s adjudication.

The Wal-Mart Surveillance Video

T.H. argues the juvenile court judge erred when it overruled his objection to

hearsay testimony concerning the Wal-Mart surveillance video. T.H. contends that

the State did not make a showing that the video was destroyed or unavailable.

T.H. points out that “[g]iven the divergent accounts of what occurred from the

state‟s witnesses, the video should have been produced as not only best evidence

but also as potentially exculpatory evidence.” T.H. argues he suffered prejudice

due to the surveillance video not being produced. T.H. argues:

In this case, the failure by the state to provide defense with the
best evidence of T.H.‟s alleged offense resulted in prejudice because
the tape would have confirmed that one of the state's witnesses did not
testify accurately. Being that the only evidence the state had was the
testimony of its two witnesses, actual evidence of the events that
occurred would have had a reasonable likelihood of a different
outcome of the trial.

The contents of the surveillance video are highly relevant to the
state‟s case against T.H. because it recorded the alleged actions of T.H.
and Ms. Charles. Furthermore, [Detective] Gerard stated that after
T.H. handed the shorts to Ms. Charles he turned his back as she placed
the shorts in her purse. Ms. Hebert testified to the contrary, stating
that T.H. watched Ms. Charles place the shorts in her purse.

[Detective] Gerard‟s testimony is further corroborated by
T.H.‟s testimony that he did not see Ms. Charles place the shorts in
her purse. T.H. testified he was unaware that she was going to steal
the shorts. Thus, the material on the surveillance video, if it indeed
shows that T.H. walked away and turned his back while Ms. Charles

26

placed the item in her purse, is material evidence that is relevant to the
guilt or innocence of T.H.

The record indicates that T.H., in the motion for discovery, requested any

electronic or video recordings that were favorable, material, and relevant to the

issue of guilt or punishment and were intended to be used as evidence by the State

at the trial. Additionally, at a motion hearing held on November 20, 2013, the

defense requested the video. The State agreed if there was a video it would

provide it to the juvenile.

The testimony of Detective Gerard and Ms. Hebert regarding the taking of

the shorts was based upon what they observed through the video surveillance. At

the adjudication hearing, when Detective Gerard began to describe what he saw on

the video surveillance, T.H.‟s attorney objected stating:

MS. BROWN: Objection, Your Honor. If he‟s going to testify to the
video, which we requested, and they say they don't have, then I‟d like
to object to that, because I think we should have been provided that, if
he was going to testify and use that, if the State is going to use that in
trial against my client.

The court ruled as follows:

THE COURT: If there‟s a video, they‟d be required to produce it;
however, if there is no video, he is permitted to testify as to what he
observed. So I‟ll overrule the objection.

There was no other discussion about the video of the surveillance. T.H. asserts that

although the video was timely requested, there is no indication in the record that

the State attempted to obtain it, and there is no evidence that it was destroyed or

otherwise unavailable. T.H. argues that admission of the testimony without the

tape was improper and violated his rights to due process under Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194 (1963).

In its brief to this court, the State asserts that following the November 20,

2013, hearing, an email was sent to T.H.‟s attorney, dated December 3, 2012, to

27

the effect that no video recording existed. The State attached a copy of the email

to its brief. The State argues that the testimony of the security officers was

admissible due to there being no bad faith on the part of the State for not producing

the in-store surveillance video.

The email was not introduced into evidence by the State, there was no

testimony or discussion in the record regarding the email, and it is not contained in

the record. In Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08),

983 So.2d 84, 88-89, the court explained:

Evidence not properly and officially offered and introduced
cannot be considered, even if it is physically placed in the record.
Documents attached to memoranda do not constitute evidence and
cannot be considered as such on appeal. See: Ray Brandt Nissan v.
Gurvich, 98-634 (La.App. 5th Cir.1/26/99), 726 So.2d 474; Gulf
Coast Bank and Trust Co. v. Eckert, 95-156 (La.App. 5th
Cir.5/30/95), 656 So.2d 1081; City of Eunice v. CLM Equipment Co.,
Inc., 505 So.2d 976, 978 (La.App. 3rd Cir.1987); Norton v. Thorne,
446 So.2d 972, 974 (La.App. 3rd Cir.1984); Wilkin-Hale State Bank
v. Tucker, 148 La. 980, 88 So. 239 (1921).

Appellate courts are courts of record and may not review
evidence that is not in the appellate record, or receive new evidence.
La. C. Civ. P. art. 2164; Gallagher v. Gallagher, 248 La. 621, 181
So.2d 47 (1965); Bullock v. Commercial U. Ins. Co., 397 So.2d 13
(La.App. 3rd Cir.1981); Holmes v. St. Charles General Hosp., 465
So.2d 117 (La.App. 4th Cir.1985); B.W.S., Jr. v. Livingston Parish
School Board, 02-1981, p. 2 (La.8/16/06), 936 So.2d 181, 182 (per
curiam).

Since the email was not introduced into evidence, we cannot consider it.

Without knowledge of the email, the record is less clear as to whether the trial

court was ruling that there was no video or that it was an advisement.

Nevertheless, the video was not available at the adjudication.

In State v. Johnson, 30,078, (La.App. 2 Cir. 12/10/97), 704 So.2d 1269, writ

denied, 98-382 (La. 6/26/98), 719 So.2d 1054, the defendant, convicted of

aggravated battery, argued on appeal the trial court committed error when it

allowed testimony on the contents of an in-store surveillance videotape which was
28

erased prior to trial. The state elicited testimony from three people who testified

that on the night of the shooting, they, along with store owner Mr. Ahmed, viewed

this videotape of defendant‟s alleged activities. The videotape was inadvertently

recorded over the following day and no longer existed. The court explained in

pertinent part:

The admissibility of a relevant videotape is well settled as being
largely within the discretion of the trial judge. Lafleur v. John Deere
Co., 491 So.2d 624 (La.1986); United States Fidelity & Guaranty Co.
v. Hi-Tower Concrete Pumping Service, 574 So.2d 424 (La.App. 2d
Cir.), writs denied, 578 So.2d 136 (La.1991). The trial court must
consider whether the videotape accurately depicts what it purports to
represent, whether it tends to establish a fact of the proponent‟s case
and whether it will aid the jury‟s understanding. Against those factors,
the trial court must consider whether the videotape will unfairly
prejudice or mislead the jury, confuse the issues or cause undue delay.
The trial court may exclude the evidence if the factors favoring
admission are substantially outweighed by the factors against
admission. La.C.E. arts. 401-403; U.S. Fidelity v. Hi-Tower, supra.

Here, we must specifically decide the admissibility and
relevancy of testimony concerning the contents of a lost document,
i.e. the Key Station surveillance videotape. While La.C.E. art. 1002
requires the original document to prove the contents therein, under
La.C.E. art. 1004(1), the original of a writing, recording or photograph
is not always required to prove its contents, and other evidence of the
contents of a writing, recording or photograph is admissible if all
originals are lost or have been destroyed, unless the proponent lost or
destroyed them in bad faith.

The “best-evidence” rule is to be applied sensibly and with
reason. State v. Dilworth, 358 So.2d 1254 (La.1978); and State v.
Cody, 446 So.2d 1278 (La.App. 2d Cir.1984). Absent a showing of
prejudice to the defendant, a conviction will not be reversed on the
ground that the best evidence was not produced. State v. Moore, 419
So.2d 963 (La.1982); State v. Gaskin, 412 So.2d 1007 (La.1982); and
State v. Coleman, 486 So.2d 995 (La.App. 2d Cir.1986). The “best
evidence” rule does not mandate production of an original taped
statement when testimony shows that the original is not available and
there is no bad faith by the state. State v. McDonald, 387 So.2d 1116
(La.1980), cert. denied, 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222
(1980).

This court applied these standards in State v. Hayes, 585 So.2d
619 (La.App. 2d Cir.1991). In Hayes, this court found no error in the
trial court allowing into evidence the transcription of defendant Hayes'
statement to the police when the audiotape had apparently been
29

destroyed and defendant could show no bad faith or prejudice. This
court held in Hayes that the “best evidence” rule does not mandate the
production of an original taped statement when testimony shows that
the original is not available and there is no bad faith by the state.

In the present case, Lake Providence Chief of Police Timothy
Middlebrook, police officer Edward Kennedy, and Defendant's parole
and probation agent, J.D. Allen, all testified that they had viewed the
videotape the night of the incident involving Defendant. Each witness
testified that the tape showed the shirtless defendant yelling expletives
and then firing a pistol into the store from the doorway. Mr. Ahmed
testified that the video tape of these events was inadvertently deleted
when the tape was recorded over the next day. The record does not
show or suggest bad faith or prejudice on Mr. Ahmed‟s part in
inadvertently permitting the evidence to be erased. Defendant
suggests, in brief, hypotheses of bad faith, but offers no factual basis
to any intentional wrongdoing on Mr. Ahmed‟s part. The three
witnesses testified to the incriminating content of the videotape and
Defendant's counsel enjoyed the benefit of a thorough cross-
examination of each witness.

The testimony of the police officers and Defendant's parole
officer as to the inculpatory content of the videotape of Defendant's
activities, coupled with Mr. Ahmed's account, casts doubt as to the
veracity of Defendant's alleged but unproven innocent activities. The
trial court found “specifically that the tape was not intentionally or
[sic] destroyed in bad faith.” Since the trial court did not find Mr.
Ahmed in bad faith, this court's holding in State v. Hayes, supra,
necessitates the finding that the testimonies of these witnesses to the
contents of the videotape were admissible. This assignment of error is
without merit.

In State v. Craft, 12-76 (La.App. 3 10/3/12), 99 So.3d 1108, writ denied,

12-2389 (La. 4/19/13), 111 So.3d 1029, the defendant was convicted of possession

of more than sixty, but less than two thousand, pounds of marijuana. On appeal,

one of the assigned errors was the failure of the State to preserve the DVD

recording of the traffic stop and his statement to police which prevented him from

fully confronting the evidence used against him. The deputy‟s vehicle involved in

the stop had an audio/video camera that recorded onto a hard drive and a disc. The

deputy believed the camera was recording onto the disc at the time of the stop, and

he intended to videotape the stop as he normally did. Shortly before trial, he

learned that the equipment did not function properly and did not record. The
30

deputy testified at trial that the video would have shown the circumstances to

which he testified had it worked properly. The officer to whom the defendant

confessed was not concerned with a video or audio taped statement because he was

not trying to obtain a confession, but to see where the drugs were going. This

court held in pertinent part:

[A]bsent a showing of prejudice, a conviction will
not be overturned on the ground that the best evidence
was not produced. [State v. Gaskin, 412 So.2d 1007
(La.1982) ]. It has been held that the testimony of one
who hears a confession is always best evidence of it.
People v. Vaughn, 155 Cal.App.2d 596, 318 P.2d 148
(1957). Likewise, testimony by participants of what was
said in a conversation have been held as equally
admissible as a tape of the conversation to establish what
was said. United States v. Gonzales–Benitez, 537 F.2d
1051 (9th Cir.1976), cert. denied, 429 U.S. 923, 97 S.Ct.
323, 50 L.Ed.2d 291 (1976); United States v. Rose, 590
F.2d 232 (7th Cir.1978), cert. denied, 442 U.S. 929, 99
S.Ct. 2859, 61 L.Ed.2d 297 (1979). Louisiana courts
have allowed officers to testify in the place of playing
taped video or audio recordings of confessions to the
jury.

State v. McGuffie, 42,069, p. 8 (La.App. 2 Cir. 8/1/07), 962 So.2d
1111, 1117, writ denied, 07–2033 (La.2/22/08), 976 So.2d 1283. The
McGuffie defendant argued that the trial court erroneously allowed a
police officer‟s testimony about his statements where the tapes of
those statements had been lost. The second circuit noted, “The law
does not require the production of nonexistent portions of a confession
or portions which cannot be recalled.” Id. at 1116 (citing State v.
Arnold, 466 So.2d 520 (La.App. 3 Cir.), writ denied, 470 So.2d 124
(La.1985)).

Defendant had ample opportunity at the hearing on the motion
to suppress and at trial to confront and cross-examine Deputy Leblanc
and Agent Hazelwood about any relevant evidence. Certainly a video
of the stop and the interview would have been helpful evidence. Its
unavailability, however, does not create a Confrontation Clause issue
where full cross-examination occurred, and the jury heard the
testimony of those who had witnessed Defendant‟s confession. This
assignment of error lacks merit.

Id. at 1114.

31

T.H. was able to cross-examine the security officers in the case. Detective

Gerard and Ms. Hebert watched the same actions, at the same time, from the same

place, on the same closed circuit. We find that the video was not material or

relevant to resolve this issue of whether or not T.H. had the intent to permanently

deprive Wal-Mart of the swim trunks. T.H. had the opportunity to cross-examine

the security officers. Thus, T.H. failed to prove that any prejudice was suffered as

a result of the video not being produced, and this assignment of error lacks merit.

DECREE

T. H.‟s adjudication is affirmed. However, the disposition is vacated and the

matter is remanded for resentencing with instructions to the trial court to order

credit for time spent in secure detention, if any, prior to the imposition of

disposition, as required by La.Ch.Code art. 898(A), to inform T. H. of the two-year

prescriptive period for filing post-conviction relief as required by La.Code Crim.P.

art. 930.8, and to order the probation order to correctly reflect the adjudication

hearing.

ADJUDICATION AFFIRMED. DISPOSITION VACATED AND
REMANDED.

32

COURT OF APPEAL

THIRD CIRCUIT, STATE OF LOUISIANA

14-179

STATE IN THE INTEREST OF T.H.

Cooks, J., dissents.

T.H., a sixteen-year-old, was adjudicated a delinquent and found guilty of

theft of an item valued at $75.78, a violation of La. R.S. 14:67. The trial court

sentenced him to six months with the Office of Juvenile Justice, suspended the

sentence, and placed him on active probation for a period of six months. The court

also ordered T.H. to complete forty hours community service. T.H. appeals

asserting the evidence was insufficient to support the conviction. The majority

affirms the adjudication but would vacate the disposition and remand for

resentencing. For the reasons stated below I disagree with the majority’s decision.

Detective Tracy Gerard (Gerard) testified he was employed by the Lafayette

Parish Sheriff’s Office for nine years. He also worked as a security guard at Wal-

Mart located on 1229 Northwest Evangeline Thruway. Gerard was working with

Rachelle Hebert (Hebert), Asset Protection Manager for Wal-Mart, in the security

office. While watching closed circuit television of the store from the security

office, Hebert pointed out to Gerard two individuals in the shoe aisle, later

identified as Ms. Charles and T.H.

In State v. Bivens, 2011-156, p. 4-5 (La.App. 3 Cir. 10/5/11), 74 So.3d 782,

788, writ denied 2011-2494 (La. 3/30/12), 85 So.3d 115, this court explained:

There is sufficient evidence for conviction if the appellate court
determines 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

1

doubt.’ State v. Hobley, 98-2460, p. 33 (La. 12/15/99), 752 So.2d
771, 790, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed. 2d 61
(2000).

Further, when the conviction is based on
circumstantial evidence, La.R.S. 15:438 sets forth the
rule that ‘assuming every fact to be proved that the
evidence tends to prove, in order to convict, [the
circumstantial evidence] must exclude every reasonable
hypothesis of innocence.’ However, La.R.S. 15:438 does
not establish a stricter standard of review than the more
general rational juror’s reasonable doubt formula; rather
it serves as a helpful evidentiary guide for jurors when
evaluating circumstantial evidence.

State v. Major, 03-3522, p. 6 (La. 12/1/04), 888 So.2d 798, 801.
(citations omitted)

In addition to assessing the circumstantial evidence in light of
the direct evidence, and vice versa, the trier of fact must decide what
reasonable inferences may be drawn from the circumstantial evidence,
the manner in which competing inferences should be resolved,
reconciled or compromised; and the weight and effect to be given to
each permissible inference. From facts found from direct evidence
and inferred from circumstantial evidence, the trier of fact should
proceed, keeping in mind the relative strength and weakness of each
inference and finding, to decide the ultimate question of whether this
body of preliminary facts excludes every reasonable hypothesis of
innocence. State v. Chism, 436 So.2d 464, 469 (La. 1983).

In this case, there is an important discrepancy between Detective Gerard’s

testimony and Hebert’s testimony regarding what each observed simultaneously on

the closed circuit video. The Detective working off-duty testified that T.H. was

looking the other direction and did not see Ms. Charles place the swimsuit in her

purse nor did he observe T.H. see Ms. Charles place anything in her purse. Both

state’s witnesses testified that T.H. was not with Ms. Charles when she passed the

registers without paying for certain items including the swim shorts picked out by

T.H.

The State did not introduce into evidence the swim shorts T.H. is accused of

stealing, nor did it introduce into evidence Ms. Charles’ purse allegedly used to

2

secret items to avoid paying for them, and it did not produce the video surveillance

tape referred to by Hebert and Gerard in their testimony. There is no evidence or

testimony to the effect that the video tape was either lost or destroyed. It simply

was not produced despite T.H.’s timely request for production of that evidence.

The only way to know which of the two versions of the observations of T.H.’s

activities is correct would be to view the video surveillance tape which was not

produced by the State. Without it, T.H.’s un-rebutted testimony, corroborated by

Detective Gerard’s testimony, establishes a reasonable hypothesis of innocence

which forecloses the possibility of a valid conviction beyond a reasonable doubt.

The majority agrees that this is not a question of credibility of witnesses.

Viewing the same events on closed circuit TV, each witness gave a different but

equally credible version of what they saw. Hebert made inferences from what she

observed and characterized T.H.’s behavior as suspicious, describing him as a

lookout in the situation, but the Detective admits on cross examination that it can

only be said that T.H. was looking away from Ms. Charles when she secreted the

alleged swim shorts in her purse. This difference in testimony is not a question of

credibility and I am unwilling to make the same “inference” as Ms. Hebert made as

it is based solely on her personal predilections. The majority should not base a

conviction on the personal inferences and predilections of an interested witness.

The Detective’s testimony substantiates T.H.’s testimony that he did not see Ms.

Charles place the alleged swim suit in her purse and substantiates his testimony

that he was not with Ms. Charles when she went through the checkout register

without paying for the shorts she had secreted in her purse.

3

T.H. was convicted of a violation of La.R.S. 14:67. In State v. Rabalais, 99-

623, p. 6 (La.App. 3 Cir. 1/26/00), 759 So.2d 836, 840 (emphasis added) this court

explained in pertinent part:

Theft is defined in La.R.S. 14:67 as follows:

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 representation. An intent to deprive the other
permanently of whatever may be the subject of the misappropriation
or taking is essential.

The Louisiana Supreme Court expressed in State v. Victor, 368
So.2d 711, 713 (La.1979), there are three essential elements of the
crime of theft which must be proved by the prosecution beyond a
reasonable doubt:

1. The “misappropriation or taking of anything of value
which belongs to another,”

2. Either “without the consent of the other . . . or by
means of fraudulent conduct,”

3. With “intent to deprive the other permanently” of the
object of the taking or misappropriation.

In State v. Brooks, 00-106, p. 7 (La.App. 5 Cir. 9/26/00), 769 So.2d 1242,

1246 (footnotes omitted) (emphasis added) the court explained in pertinent part the

rule by which to determine whether one can be convicted as a principal to a

criminal offense:

All persons concerned in the commission of a
crime, whether present or absent, and whether they
directly commit the act constituting the offense, aid and
abet in its commission, or directly or indirectly counsel
or procure another to commit the crime, are principals.

This rule has important qualifications. Only those persons who
knowingly participate in the planning or execution of a crime are
principals. Mere presence at the scene is not enough to “concern” an
individual in the crime. All persons “concerned” in the commission
of an offense, either directly or indirectly, are principals in the crime,

4

and culpable according to the mental state they possess at the time of
the offense.

In State v. Victor, 368 So.2d 711, 714-15 (La.1979), the court explained:

The factual issue of whether there is a “taking” for purposes of
a theft concerns whether the offender exerts control over the object
adverse to or usurpatory of the owner’s dominion.

For instance, under usual circumstances the ordinary shopper
does not disturb the owner's dominion by handling goods displayed
for sale. The mere fact that a customer has removed a large item from
its package, in order to inspect it, will not ordinarily be any evidence
of theft. In this instance, no inference arises of any intent to deprive
the owner permanently of the object, nor does even any inference
arise of a “taking” i. e., an intent to usurp or negate the owner's
dominion.

In this case, T.H. testified he gave the swim trunks to Ms. Charles. The

element or elements which the State was required to prove were a taking with

intent to permanently deprive Wal-Mart of the swim trunks by T.H. The State’s

case is based solely upon circumstantial evidence and the conflicting testimony by

the State’s witnesses. There is no direct evidence as to this essential element of the

crime charged. A similar issue arose in State v. Hunter, 09-1487 (La. App. 3 Cir.

6/2/10), 41 So.3d 546, which involved circumstantial evidence and conflicting

testimony as to the element of constructive possession of cocaine. In Hunter, this

court found the state failed to prove constructive possession beyond a reasonable

doubt, explaining in pertinent part:

The crack cocaine at issue was found under a chair in the home
of James Vertner. Thus, the State was required to prove the Defendant
had constructive possession of the cocaine. There are several factors
to consider when determining whether the Defendant had constructive
possession of the crack cocaine which are set out below.

Knowledge

The crack cocaine at issue was found under a chair in which
Michael Paige had been sitting. Michael testified that the crack was
in his possession, he placed it in the back of the chair, and the

5

Defendant knew nothing about it. There was, however, testimony by
Trooper Horton and Detective Dunn that they believed the Defendant
and Michael were part of a drug organization. However, Michael
denied any participation in the organization and the Defendant was
not asked if he was part of the organization.

Relationship with the Person Found in Actual Possession

Neither Michael nor the Defendant actually possessed the crack
cocaine when it was discovered by police. There is no evidence of a
relationship between Michael and the Defendant other than testimony
by Trooper Horton and Detective Dunn that they believed the
Defendant and Michael were part of a drug organization.

Access to the Area

Vertner, the homeowner, testified that when police entered his
home, the Defendant was in the kitchen by the sink and the ice box
and he sat down at that time. Vertner did not testify where the
Defendant sat. Babers, who was also inside the home when the
Defendant entered, testified that the Defendant stood by the table,
went toward the front door, and returned to the table. He testified that
the Defendant never sat on the cooler.

Michael testified that the Defendant sat at the table and never
sat on the cooler. The Defendant testified that he stood between the
table and the love seat, which was across from the chair Michael sat
in. He walked toward the front door then returned to the table, which
was where he was when police entered the home. After police asked
who got out of the vehicle, he sat in a chair. The Defendant did not
indicate what chair he sat in.

Trooper Horton testified that the Defendant was standing by the
chair when he entered the residence and later testified that he was
sitting on a cooler next to the chair Michael sat in. Detective Henson
also testified that the Defendant was sitting on the cooler next to the
chair.

Evidence of Recent Drug Use

There was no evidence presented regarding recent drug use by
the Defendant.

Physical Proximity to the Drugs

The Defendant and Michael were in the same vehicle for a short
period of time prior to the vehicle being stopped by police.

6

Testimony of police put the Defendant next to the chair under
which the crack cocaine was found. However, the testimony of other
witnesses indicates the Defendant was not next to the chair. We are
unaware of the size and layout of Vertner's home. Additionally,
Detective Henson testified that photographs are typically taken in
cases such as this. However, no photos were taken in the case at bar.

We find the evidence regarding the Defendant's proximity to
the drugs is conflicting.

Evidence that the Area was Frequented by Drug Users

There was no testimony that Vertner's home was frequented by
drug users.
....
In the case at bar, the Defendant was in the company of an individual
who admitted to possessing crack cocaine. However, there was no
evidence the Defendant was aware that Michael possessed cocaine.
Further, there was no evidence that the Defendant and Michael were
in an area frequented by drug dealers.

PRINCIPAL

In its closing argument, the State asserted that Michael
possessed the crack cocaine and the Defendant was a principal to the
offense of possession with intent to distribute crack cocaine.
....

We find this case is most similar to [State v.] Brady, [97-1095
(La.App. 4 Cir. 2/3/99)] 727 So.2d 1264, in which Brady had drugs in
his pocket and the court concluded that Howell did not have
constructive possession of those pills. Further, although the State
would have the jury believe that the Defendant and Michael were part
of a drug organization, there was no testimony regarding surveillance
that linked the Defendant to the drug organization as there was in
Lewis, 965 So.2d 971. There was, however, a recorded conversation
between the Defendant and Marvin Paige, but the two did not openly
discuss drugs during that conversation. Thus, the State failed to
present proof that the Defendant directly committed the act
constituting the offense, aided and abetted in its commission, or
directly or indirectly counseled or procured Michael to commit
possession with intent to distribute crack cocaine.

For the reasons asserted herein, we find the State did not prove
the Defendant was a principal to Michael's possession with intent to
distribute crack cocaine.

7

RESPONSIVE VERDICTS

“[W]hen a court finds that the evidence was not sufficient to
support a verdict for the crime charged, the discharge of the defendant
is neither necessary nor proper when the evidence supports a
conviction of a lesser and included offense which is a legislatively
authorized responsive verdict.” State v. Wright, 36,635, p. 12
(La.App. 2 Cir. 3/7/03), 840 So.2d 1271, 1279. The responsive
verdicts to the crime of possession with intent to distribute crack
cocaine are attempted possession with intent to distribute crack
cocaine, possession of crack cocaine, attempted possession of crack
cocaine, and not guilty. La.Code Crim.P. art. 814(49).

We find the State cannot prove the Defendant committed any of
the responsive verdicts, as the State failed to prove the Defendant
constructively possessed the crack cocaine or was a principal to
Michael's possession thereof. Therefore, the Defendant's conviction is
vacated and his sentence set aside.

Id. at 555-62.

T.H. denied taking the swim trunks with the intent to deprive Wal-Mart of them

permanently. He believed Ms. Charles was going to buy him the swim trunks

based upon what she told him at the store. He testified she had bought things for

him in the past. T.H. denied seeing Ms. Charles put the swim trunks in her purse.

T.H. testified he only became aware that Ms. Charles had not paid for the swim

trunks after being called into the security office. No merchandise from the store

was found on T.H.

Like the officers in Hunter, Hebert testified according to what she believed the

actions of T.H. meant to her characterizing T.H.’s looking the other way as making

him a lookout for store security aiding Ms. Charles in the theft of goods from Wal-

Mart. Hebert testified that T.H. saw Ms. Charles conceal the swim shorts. Hebert

viewed these alleged actions via closed caption television and testified as follows:

 Q. [The State] [W]hile watching the security camera, was this
gentleman in a position to see the young lady placing the items
in her purse?
A [Ms. Hamilton]. Yes, he was.

8

Q. Did he make an effort to stop the concealment?

A. No, he did not.

 Q. [M]r. Hamilton, what was he doing when the young lady
put it in her purse?
A. He was standing next to her. While she was placing

merchandise inside of her purse, he was basically looking

around, I guess, to see if anybody was --

Detective Gerard, who was watching T.H. and Ms. Charles on the same

television monitor at the same time as Hebert, corroborated T.H.’s testimony that

T.H. did not see Ms. Charles place the swim trunks in her purse. Detective Gerard

was asked several times about whether T.H. saw Ms. Charles conceal the swim

trunks in the purse, and each time he said T.H. was looking away or turned away

from Ms. Charles when she concealed the item in her purse.

Other circumstantial evidence to support this essential element of the crime

charged was whether or not T.H. was aware Ms. Charles exited the store without

paying for the swim trunks. T.H. denied seeing Ms. Charles pass the checkout

line. Hebert testified:

A. We continued to follow the individuals until they came up to
the front of the store. After they passed all points of sale, entered
the vestibule, we opened the door to the Loss Prevention office and
Deputy Gerard asked the individuals to come in the office.

But, Gerard gave a very different account. He explained:

A. Once they started moving, we lost them off of that particular
camera.

Q. Okay.

A. And then -- I don't remember if Rachelle followed them from
that point. I went to the door to wait for them to come to the exit
point.

9

Detective Gerard then explained that T.H. did not exit the store at the same time as

Ms. Charles. According to Gerard, Ms. Charles exited first and Gerard stopped her

at that time. Gerard testified when he stopped T.H., and brought him into the

security office, Ms. Charles was already in the office.

I believe the State failed to exclude the reasonable hypothesis of innocence

that T.H. thought Ms. Charles was going to purchase the swim trunks and that he

was unaware she secreted them in her purse to avoid paying for them. As in

Hunter, the State presented conflicting evidence. Gerard and Hebert had differing

accounts or characterizations of the concealment. Additionally, although there was

general testimony that T.H. and Ms. Charles passed the checkout points, T.H.’s

testimony that he was not with Ms. Charles when she passed the checkout line and

failed to pay for the swim trunks was supported by Detective Gerard’s testimony.

T.H.’s testimony that Ms. Charles offered to buy him the swim trunks, and that she

had purchased things for him in the past, was un-rebutted by the State.

Furthermore, there was no testimony that T.H. knew Ms. Charles planned to steal

the shorts. The State failed to prove the charged offense, any lesser included

offense, or that T.H. was guilty as a principal.

I also believe T.H. correctly asserts that the admission of Gerard and

Hebert’s testimony without the video tape of what they say they viewed over the

closed circuit TV was improper and violates his due process rights under Brady v.

Maryland, 373 U.S. 83, 83 S.C.t 1194 (1963).

In State v. Johnson, 30,078, (La.App. 2 Cir. 12/10/97), 704 So.2d 1269, writ

denied, 98-382 (La. 6/26/98), 719 So.2d 1054, the defendant, convicted of

aggravated battery, argued on appeal the trial court committed error when it

allowed testimony on the contents of an in-store surveillance videotape which was

10

erased prior to trial. The state elicited testimony from three people who testified

that on the night of the shooting, they, along with store owner Mr. Ahmed, viewed

this videotape of defendant's alleged activities. The videotape was inadvertently

recorded over the following day and no longer existed. The court explained in

pertinent part:

The admissibility of a relevant videotape is well settled as being
largely within the discretion of the trial judge. Lafleur v. John Deere
Co., 491 So.2d 624 (La.1986); United States Fidelity & Guaranty Co.
v. Hi-Tower Concrete Pumping Service, 574 So.2d 424 (La.App. 2d
Cir.), writs denied, 578 So.2d 136 (La.1991). The trial court must
consider whether the videotape accurately depicts what it purports to
represent, whether it tends to establish a fact of the proponent’s case
and whether it will aid the jury’s understanding. Against those
factors, the trial court must consider whether the videotape will
unfairly prejudice or mislead the jury, confuse the issues or cause
undue delay. The trial court may exclude the evidence if the factors
favoring admission are substantially outweighed by the factors against
admission. La.C.E. arts. 401-403; U.S. Fidelity v. Hi-Tower, supra.

Here, we must specifically decide the admissibility and
relevancy of testimony concerning the contents of a lost document,
i.e. the Key Station surveillance videotape. While La.C.E. art. 1002
requires the original document to prove the contents therein, under
La.C.E. art. 1004(1), the original of a writing, recording or photograph
is not always required to prove its contents, and other evidence of the
contents of a writing, recording or photograph is admissible if all
originals are lost or have been destroyed, unless the proponent lost or
destroyed them in bad faith.

The “best-evidence” rule is to be applied sensibly and with
reason. State v. Dilworth, 358 So.2d 1254 (La.1978); and State v.
Cody, 446 So.2d 1278 (La.App. 2d Cir.1984). Absent a showing of
prejudice to the defendant, a conviction will not be reversed on the
ground that the best evidence was not produced. State v. Moore, 419
So.2d 963 (La.1982); State v. Gaskin, 412 So.2d 1007 (La.1982); and
State v. Coleman, 486 So.2d 995 (La.App. 2d Cir.1986). The “best
evidence” rule does not mandate production of an original taped
statement when testimony shows that the original is not available and
there is no bad faith by the state. State v. McDonald, 387 So.2d 1116
(La.1980), cert. denied, 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222
(1980).

…

11

Mr. Ahmed testified that the video tape of these events was
inadvertently deleted when the tape was recorded over the next day.

…

The trial court found “specifically that the tape was not
intentionally or [sic] destroyed in bad faith.” Since the trial court did
not find Mr. Ahmed in bad faith, this court's holding in State v. Hayes,
supra, necessitates the finding that the testimonies of these witnesses
to the contents of the videotape were admissible.

Significantly, in this case, there is no showing that the video tape, the best

evidence of what actually occurred, was either lost or destroyed. It was simply

never produced despite Defendant’s efforts to get the tape. The video would have

been material and relevant to resolve the conflicting testimony of Hebert and

Gerard in determining whether or not T.H. had the intent to permanently deprive

Wal-Mart of the swim trunks. Consequently, T.H. suffered prejudice by the video

not being made available. His adjudication should be reversed and his disposition

should be vacated. I must respectfully dissent from the majority’s decision.

12