State of Louisiana v. Cody Lacombe

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-544

STATE OF LOUISIANA

VERSUS

CODY LACOMBE

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 06-K-5972-A
HONORABLE JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Billy Howard Ezell, Judges.

AFFIRMED AND REMANDED.

Earl B. Taylor
District Attorney, Twenty-Seventh Judicial District Court
Jennifer Ardoin
Assistant District Attorney, Twenty-Seventh Judicial District Court
P. O. Drawer 1968
Opelousas, LA 70571
Telephone: (337) 948-0551
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2775
Monroe, LA 71207-2775
Telephone: (318) 387-6124
COUNSEL FOR:
Defendant/Appellant - Cody LaCombe

THIBODEAUX, Chief Judge.

Defendant, Cody LaCombe, appeals his jury conviction for unauthorized

use of a motor vehicle, a violation of La.R.S. 14:68.4, on the basis of insufficiency

of the evidence. The evidence is sufficient. We affirm.

LAW AND DISCUSSION

Defendant argues that while he may have been dilatory in his job

performance, he did not possess the specific intent to take or use his employer’s

vehicle without consent or by means of fraudulent conduct. He argues that the State

failed to submit any evidence that his absence with the vehicle was anything more

than taking longer than necessary to complete the task assigned to him.

The unauthorized use of a motor vehicle is defined as, “[t]he 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.

When discussing sufficiency of evidence on appeal, this court has held:

“[T]he critical inquiry of the reviewing court is whether,
after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel.
Graffagnino v. King, 436 So.2d 559, (La.1983); State v.
Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393
So.2d 1212 (La.1981). The role of the factfinder is to
weigh the respective credibility of each witness.
Therefore, the appellate court should not second guess the
credibility determinations of the factfinder beyond the
sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559,
citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ

denied, 99-3259 (La. 5/5/00), 761 So.2d 541.

The employer and victim in this case was Dirk LeBlanc who, at the time

of the offense, was principal owner of Freight Lines Transportation and Brokerage,

Inc. He hired Defendant as a truck driver on or about November 14, 2006.

Defendant’s first haul began on the same day. He was directed to drive the

company’s eighteen-wheeler to San Antonio, Texas, make stops in Dallas, then

Waxahachie, and make a final delivery in Carencro, Louisiana on Friday morning.

Mr. LeBlanc communicated with Defendant on Monday and Tuesday. On

Wednesday and Thursday, Defendant did not answer his cell phone or call the

company. On Thursday, Mr. LeBlanc filed a report with the Lafayette Parish

Sheriff’s Office, which was submitted into evidence as State’s exhibit number 1. The

report stated:

Driver (Cody J. LaCombe) was to deliver load from
Waxahatchie, TX to Carencro, LA. Driver picked-up load
but never delivered. He fueled up at 10:52 p.m. in Dallas
TX 154 gallons. He fueled up again at 10:49 a.m. in Dallas,
TX across the street from the first fueling, 213 gallons.
The 18-wheeler can only hold approx. 180 gallons. Driver
also has $1000.00 company check from the previous load
he had hauled before this load. Can not find truck, trailer
(loads), nor driver.

Defendant finally called Mr. LeBlanc on Sunday the 20th, stating that he

needed fuel. Mr. LeBlanc explained that he had “cut off” the fuel card so Defendant

had to call for authorization to fuel up the tractor. Mr. LeBlanc instructed him to go

to King’s Truck Stop and gave him an authorization code for enough fuel to get there.

Mr. LeBlanc arranged for another driver to go to King’s Truck Stop to take

possession of the tractor and trailer and make the late delivery to Carencro.

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When Defendant filled the tractor with fuel on Wednesday night, then

again the following morning in the same area in Dallas, with more fuel than the tank

could hold, the victim became nervous about the situation. Moreover, after the tractor

and trailer were taken into custody, the odometer reading indicated an excess of seven

hundred more miles. Mr. LeBlanc explained that the mileage of the routes was

calculated using a “PC Miler.” Mr. LeBlanc testified that Defendant was not

authorized to go anywhere but the established route. He was not authorized to use

the vehicle on either Saturday or Sunday.

Mr. LeBlanc testified that he never recovered from Defendant the one

thousand dollar check issued to the company for transportation fees. All drivers are

required to maintain a log book. No log book was found following Defendant’s

arrest.

Finally, Mr. LeBlanc testified that when Defendant called him Sunday

morning, Defendant said he had been beaten up. Except for this last statement made

by Defendant to Mr. LeBlanc, there was no explanation offered at trial as to

Defendant’s whereabouts or activities from Wednesday to Sunday.

Defendant argues that the facts of State v. Bias, 400 So.2d 650

(La.1981), are most analogous to the current case where the supreme court reversed

a conviction for unauthorized use of a moveable, a violation of La.R.S. 14:68. In

Bias, the defendant entered into a contract with a furniture store for the rental of a

television for twenty dollars weekly. He defaulted. The supreme court stated:

R.S. 14:68 may be violated by a taking or use either
without the consent of the owner or by means of fraudulent
conduct, practices, or representations. Here, the state’s
theory must be either (1) that the “use” of the movable was
without the owner’s consent, when defendant discontinued
paying rent, or (2) that the “use” was by means of
fraudulent practices, when defendant kept the set without
making the agreed payments. We decline to accept a

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theory that the mere failure to make rental payments as
agreed constitutes a “use without consent” or a “use by
fraudulent practices” for purposes of the statute.

....

Affirmation of the conviction on the evidence in this record
would require a holding that proof of breach of a rental
agreement is alone sufficient to prove a “use without
consent” or a “use by fraudulent practices, conduct, or
representations.” As stated before, we do not believe such
a result was intended when the statute was enacted.

Perhaps the Legislature could enact a special
criminal statute proscribing the failure to abide by the
terms of a rental agreement. Nevertheless, we construe the
present statute proscribing unauthorized use of a movable
as requiring a showing of mens rea or criminal intent, since
the “evil” state of mind of the actor normally distinguishes
criminal acts (punishable by the state alone) from mere
civil wrongs (actionable by private individuals against one
another). C.Cr.P. art. 381. In State v. Brown, 389 So.2d 48
(La.1980), a case in which we construed a statute
prohibiting possession of certain controlled substances to
require proof of criminal intent, we stated:

“(w)e observe the familiar proposition that
‘(t)he existence of a mens rea is the rule of,
rather than the exception to, the principles of
Anglo-American criminal jurisprudence.’
Dennis v. United States, 341 U.S. 494, 500,
71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). In
a much cited passage from Morissette v.
United States, 342 U.S. 246, 250-251, 72
S.Ct. 240, 243, 244, 96 L.Ed. 288 (1952), the
United States Supreme Court observed:

‘The contention that an injury
can amount to a crime only
when inflicted by intention is no
provincial or transient notion. It
is as universal and persistent in
mature systems of law as belief
in freedom of the human will
and a consequent ability and
duty of the normal individual to
choose between good and evil.
A relation between some mental
element and punishment for a
harmful act is almost as

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instinctive as the child’s familiar
exculpatory “But I didn't mean
to,” and has afforded the rational
basis for a tardy and unfinished
substitution of deterrence and
reformation in place of
retaliation and vengeance as the
motivation for public
prosecution. Unqualified
acceptance of this doctrine by
English common law in the
Eighteenth Century was
indicated by Blackstone’s
sweeping statement that to
constitute any crime there must
first be a “vicious will.”’

“The ‘vicious will’ has been replaced with
less colorful descriptions of the mental state
required for a criminal act; nevertheless,
intent generally remains an indispensable
element of a criminal offense.” 389 So.2d at
50.

Finally, we note that the state may produce direct or
circumstantial evidence of “fraudulent intent” in
unauthorized use cases involving the initial acquisition of
property by rental agreement. The evidence in this case,
however, simply does not reasonably support the inference
of fraudulent intent beyond a reasonable doubt.

Id. at 652-53.

Defendant argues that like Bias, the necessary criminal intent to

distinguish a criminal act from a civil act is lacking. However, the State counters

that State v. Varnado, 01-367 (La.App. 5 Cir. 9/13/01), 798 So.2d 191, is more

applicable to the current case. In Varnado, the fifth circuit affirmed the defendant’s

conviction for unauthorized use of a motor vehicle. The defendant was employed as

a truck driver for a company that supplied workers for offshore work. On a Friday,

the defendant was instructed to drive other employees to Cameron in a company car.

The defendant left early in the morning, and later in the day called and said he would

be back to the office in the early evening. The defendant did not show up. The next

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day the employer made several unsuccessful attempts to contact defendant. The

following day, the vehicle was reported stolen. The defendant, however, showed up

later in the day. He was charged with and convicted of unauthorized use of a motor

vehicle. He appealed the conviction, arguing insufficient evidence. The fifth circuit

examined Bias, then stated:

In State v. Bias, 400 So.2d 650 (La.1981) the Louisiana
Supreme Court, in clarifying the conduct proscribed by
La.R.S. 14:68, reversed the defendant’s conviction for
unauthorized use of a movable under circumstances where
the defendant had retained possession of a television set
following default in rental payments. The Court held that
the retention of the television set after the default in rental
payments did not constitute “use without consent” or “use
by fraudulent practices” for the purpose of the statute
prohibiting the unauthorized use of a movable. In
interpreting La.R.S. 14:68, the Louisiana Supreme Court
expressly held that the “statute proscribing the
unauthorized use of a movable requir[es] a showing or
mens rea or criminal intent, since the ‘evil’ state of mind of
the actor normally distinguishes criminal acts (punishable
by the state alone) from mere civil wrongs (actionable by
private individuals against one another).”

In State v. Spencer, 97-811 (La.App. 5th Cir.
1/27/98), 707 So.2d 119, this Court applied Bias and held
that although R.S. 14:68.4 does not require a person to act
with an intent to deprive the owner permanently of his
property, the statute requires the existence of fraudulent
intent, which may be proven by circumstantial evidence.
Spencer, supra.

In Spencer, this Court found sufficient evidence to
uphold the Defendant’s conviction for unauthorized use of
a motor vehicle when he took a vehicle from a car
dealership for a test drive and did not return in a 24-hour
period. Defendant argued there was insufficient evidence
to prove he had the requisite criminal intent to commit the
crime of unauthorized use of a motor vehicle. Citing
testimony that the salesman did not give defendant
permission to keep the car for 24 hours, this Court found
that a rational jury could have found the requisite criminal
intent beyond a reasonable doubt.

In the present case, the jury heard the testimony of
the Defendant’s supervisor who stated that the Defendant

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was to drive to and from Cameron on Friday, June 16,
2000, in one day. Thrasher explained that the Defendant
was supposed to return the company vehicle on Friday.
Thrasher spoke to the Defendant after he had dropped the
crew off in Cameron and the Defendant stated that he
would be back at the shop by 7:00 p.m. Thrasher testified
that the Defendant was never authorized to take the vehicle
for the weekend. In fact, Thrasher stated that employees
are never permitted to take company cars home for the
weekend. Furthermore, Thrasher testified that the
Defendant never called the shop to report that he was
running late. And, Thrasher explained that the Defendant
never returned any pages or answered his cell phone when
the company tried to contact him Friday night after he did
not return as scheduled.

From these facts, a rational juror could have
concluded that the Defendant took the company vehicle
over the weekend without his employer’s consent.
Furthermore, a rational juror could have reasonably found
that the Defendant possessed the requisite criminal intent
based on the Defendant’s failure to respond to his
employer’s numerous attempts to contact him and his
failure to communicate with his employer for almost 48
hours beyond the time in which the vehicle was due back
to the shop. Thus, we find that the State proved all of the
essential elements of the crime of unauthorized use of a
motor vehicle, beyond a reasonable doubt.

Id. at 193-94.

In State v. Coleman, 02-1487 (La.App. 4 Cir. 10/9/02), 830 So.2d 341,

the fourth circuit found the facts supported a conviction for unauthorized use of a

motor vehicle. The defendant was a driver for the Salvation Army. He was given the

use of a van to pick up and deliver workers. He had a set route and schedule. After

his second day, he failed to make the rounds and he did not contact the van’s owner

for several days thereafter. The fourth circuit noted that once the defendant “deviated

from the route and schedule,” he knew his use of the van was unauthorized.

A comparison of the facts in Coleman and Varnado to the facts in the

current case indicates that Defendant had the requisite criminal intent beyond a

reasonable doubt. He did not communicate with the company from Wednesday to the

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following Sunday, despite frequent calls made to his cell phone. He failed to make

the final delivery on Friday in Carencro. Testimony established that he traveled an

additional seven hundred miles outside of the route. Moreover, Matthew Willey, a

patrolman with the St. Landry Parish Sheriff’s Office, who confronted and arrested

Defendant at King’s Truck Stop, testified that Defendant had no identification on

him. Defendant did not have the thousand dollar check in his possession, nor was the

log book he was required to maintain ever recovered at the time he was picked up at

King’s Truck Stop. Considering the above facts, a rational juror could have

concluded that Defendant possessed the requisite criminal intent and took possession

of the eighteen-wheeler without his employer’s consent.

Defendant further argues that there was no evidence presented as to the

exact time of the charges of the fuel, or when he picked up the load, or evidence

presented indicating the distance between the location where he filled up and the

location where the load was picked up. Basically, Defendant argues that the entire

case was premised on the victim’s testimony. However, “it is well-settled that the

factfinder’s credibility decision should not be disturbed unless clearly contrary to the

evidence.” State v. Gilmore, 08-1398, p. 7 (La.App. 4 Cir. 5/6/09), 11 So.3d 575,

578. Furthermore, this court has consistently held that a single witness’s testimony,

if believed by the factfinder, is sufficient to support the verdict in the absence of

internal contradictions or irreconcilable conflict with the physical evidence. State v.

Henry, 95-428 (La.App. 3 Cir. 10/4/95), 663 So.2d 309, writ denied, 96-681 (La.

5/16/97), 693 So.2d 793. The testimony of the victim and the circumstantial evidence

was sufficient to support the conviction beyond a reasonable doubt.

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ERRORS PATENT

As a condition of probation, the trial court ordered the Defendant to

reimburse the Indigent Defender Board $100.00 without establishing a payment plan.

Recently, in State v. Wagner, 07-128 (La.App. 3 Cir. 11/5/08), 996 So.2d 1208, this

court held:

When the fines and costs are imposed as a condition
of probation, but the trial court is silent as to the mode of
payment or the trial court attempts to establish a payment
plan, this court has required a specific payment plan be
established. See State v. Theriot, 04-897 (La.App. 3 Cir.
2/9/05), 893 So.2d 1016 (fine, court costs, cost of
prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir.
10/31/07), 970 So.2d 83 (fine and costs); and, State v.
Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875
(fine and court costs).

We view this procedure as no different from
payment plans dealing with payment for restitution. See
State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d
57, writ denied, 99-3413 (La. 5/26/00), 762 So.2d 1101
(restitution only); State v. Reynolds, 99-1847 (La.App. 3
Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs);
State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949
So.2d 597 (restitution, fine, court costs, and reimbursement
to Indigent Defender Board); and, State v. Fontenot,
01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255
(restitution, court costs and payments to victim’s fund,
Indigent Defender Board, and District Attorney).

Similarly, the payment to the crime lab fund to be
paid during the probationary period was an insufficient
payment plan, requiring remand to the trial court for
establishment of a payment plan. The plan may either be
determined by the trial court or by Probation and Parole,
with approval by the trial court. See Stevens, 949 So.2d
597.

Id. at 1213.

Accordingly, we remand this case to the trial court for establishment of

a payment plan for the reimbursement of the $100.00, noting that the plan may either

be determined by the trial court or by the Office of Probation and Parole, with

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approval by the trial court. See State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07) 949

So.2d 597.

CONCLUSION

For the above reasons, we affirm Defendant’s conviction. Furthermore,

we remand this case to the trial court for establishment of a payment plan for the

reimbursement of the $100.00 to the Indigent Defender Board, noting that the plan

may either be determined by the trial court or by the Office of Probation and Parole,

with approval by the trial court.

AFFIRMED AND REMANDED.

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