State of Louisiana v. Anthony Bardwell

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1072

STATE OF LOUISIANA

VERSUS

ANTHONY BARDWELL

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 173,143-B
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Angelo Joseph Piazza, III
P. O. Box 429
Marksville, LA 71351
(318) 253-6423
COUNSEL FOR DEFENDANT/APPELLANT:
Anthony Bardwell

Charles A. Riddle, III
District Attorney
David LaFargue
Assistant District Attorney
Twelfth Judicial District
P. O. Box 1200
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR APPELLEE:
State of Louisiana

EZELL, Judge.

Defendant, Anthony Bardwell, was indicted on April 25, 2013, with theft by

fraud, a violation of La.R.S. 14:67. Defendant elected to be tried by the judge, and

trial commenced on May 29, 2014, following which he was found guilty as

charged. Pursuant to La.Code Crim.P. art. 893(E), Defendant‘s sentence was

deferred, and he was placed on thirty-six months probation. He was ordered to pay

a fine of $1,000.00, $399.00 court costs, $10,421.95 restitution payable at the rate

of $329.00 per month, and a $71.00 per month probation supervision fee,

commencing August 1, 2014.

Defendant has perfected a timely appeal wherein he asserts two assignments

of error: 1) the evidence was insufficient to establish the intent to commit fraud;

and 2) the trial court erred when it ordered restitution in the amount of $10,421.95.

For the following reasons, we affirm Defendant‘s conviction and the conditions of

probation.

FACTS

Defendant received payments in the amount of $13,497.95 from Colby

Maldonado to rebuild an engine for a 2000 Chevrolet truck and to supply and

rebuild broken parts for the 2000 Chevrolet truck and a 1997 Chevrolet truck.

Work commenced approximately in June 2008. However, Defendant never rebuilt

the engine for the 2000 truck nor fixed all of the broken parts for the 2000 and

1997 trucks.

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.

Defendant was entitled to a trial by jury. La.Code Crim.P. art. 782 and

La.R.S. 14:67(2). The court minutes of February 13, 2014, indicate Defendant

advised the trial court of his desire to waive his right to trial by jury. After

―interrogation by the court and the answers given by the Defendant,‖ the trial court

found the waiver of trial by jury was knowingly, intelligently, and voluntarily

entered.

Effective November 22, 2010, La.Const. art. 1, § 17(A), added, ―[e]xcept in

capital cases, a defendant may knowingly and intelligently waive his right to a trial

by jury but no later than forty-five days prior to the trial date and the waiver shall

be irrevocable.‖ Additionally, La.Code Crim.P. art. 780 was amended effective

June 17, 2013, requiring a written waiver of jury trial signed by the defendant and

his attorney ―not later than forty-five days prior to the date the case is set for trial.‖

However, La.Code Crim.P. art. 780(C) allows a waiver within forty-five days prior

to the commencement of trial with the consent of the district attorney. In State v.

Robinson, 48,819, pp. 4-6 (La.App. 2 Cir. 2/26/14), 136 So.3d 302, 305-06, the

court, in addressing the assigned error of untimely waiver of trial by jury,

examined La.Const. art. 1, § 17 and La.Code Crim.P. art. 780 and explained in

pertinent part:

La. Const. Art. I, § 17(A), as amended in 2010, provides that,
except in capital cases, a defendant may waive his right to a trial by
jury but no later than 45 days prior to the trial date. The waiver is
irrevocable. State v. Chinn, 11-2043 (La.02/10/12) 92 So.3d 324. In
State v. Bazile, 12-2243 (La.05/07/13), [144] So.3d [719], 2013 WL
1880395, the Louisiana Supreme Court held that the 45–day period is
applied prior to the initial trial date regardless of any subsequent
continuances.

In State v. Chinn, supra, the issue before the court was whether
the state could successfully object to a jury trial waiver by requesting
an initial trial setting of less than 45 days from arraignment. This was
admittedly the strategy of the state to ensure a jury trial. To allow the

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state to effectively take away a defendant‘s right to waive a jury trial
by a quick trial setting was not in keeping with the spirit of the
constitutional amendment. The court in State v. Chinn, supra at 330,
explained:

The clear intention of the redactors of La. Const. art. I, §
17(a) was to prevent last minute waivers by criminal
defendants of the right to a jury trial. Consequently, La.
Const. art. I, § 17(a) was enacted to limit the time period
in which a criminal defendant charged with a non-capital
offense may exercise his or her constitutional right to
waive a jury trial.

In State v. Bazile, supra, the supreme court explained its
decision in State v. Chinn, supra, and further held that the reference to
the ―trial date‖ in the 2010 amendment must refer to the initial trial
setting of the matter. In State v. Bazile, the defendant waived his right
to a jury trial over a year after his arraignment, but less than 45 days
from his actual trial date. Bazile‘s initial trial date had been continued
and reset several times prior to his jury trial waiver. Finding that, at
the time Bazile waived his right to a trial by jury, he was prohibited
by La. Const. Art. I, § 17(A) from exercising that waiver, the supreme
court explained, in State v. Bazile, supra at, [20],[144] So.3d at [735] :

The reference in the constitutional provision to a ―trial
date‖ must, we believe, refer to the initial trial setting of
the matter. As this case shows, an initial trial setting may
be continued again and again, which would turn a
defendant‘s actual date of trial into a moving target.
Since trial settings are often extended for a variety of
reasons, there must exist a fixed point in time by which
the timeliness of a defendant‘s jury waiver can be
determined. If the term ―trial date‖ is interpreted to mean
a date which could be continued, this interpretation
would conflict with the clear intention of the provision to
prevent last minute jury trial waivers. Thus, we interpret
the term ―trial date‖ in La. Const. art. I, § 17(a) to mean
the initial trial setting.

A recent decision by the Third Circuit is also instructive. In
State v. Prudhomme, 12–347 (La.App.3d Cir.11/07/12), 101 So.3d
565, the defendant sought to exercise his right to waive jury trial,
albeit untimely. There was no objection by the state and, on this basis,
the Third Circuit distinguished State v. Chinn, supra, and determined
that the waiver was validly entered.

Furthermore, in State v. Carter, 11–758 (La.App.5th
Cir.05/31/12), 96 So.3d 1283, the Fifth Circuit actually declined to
consider the issue where neither the defendant nor the state objected

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to the waiver and both ―acquiesced in the bench trial date.‖ The
Carter court cited La. C. Cr. P. art. 841, stating that the issue could
not be raised for the first time on appeal.

In this case as in State v. Prudhomme, supra, and State v.
Carter, supra, the state never objected to defendant‘s waiver. La. C.
Cr. P. art. 841(A) provides that an irregularity or error cannot be
availed of after verdict unless it was objected to at the time of
occurrence. Further, as in State v. Prudhomme, supra, because there
was no objection from the state and no attempt by the state to deprive
defendant of his right to exercise the waiver, the waiver was validly
entered.

Significantly, the spirit of the 2010 amendment is not offended
by validating defendant‘s waiver in this case. In response to the 2010
constitutional amendment to Art. I, § 17(A) and State v. Bazile, supra,
with an effective date of August 1, 2013, by Act No. 343, the
legislature amended La. C. Cr. P. art. 780 to provide that waiver of a
jury trial must be by written motion, signed by the defendant and
defendant‘s counsel unless defendant has waived counsel and must be
no later than 45 days prior to the trial date; however, with the consent
of the district attorney, trial by jury may be waived within the 45
days prior to trial. For these reasons, we conclude that the waiver is
valid and does not run afoul of the 2010 constitutional amendment.

On the face of the record in this case, there are several errors patent in

violation of La.Const. art. 1, § 17 and La.Code Crim.P. art. 780. The initial trial

date was September 9, 2013. Defendant requested a waiver of trial by jury on

February 13, 2014, after the initial trial date was to commence. Thus, the trial

court erred in allowing Defendant to waive his trial by jury. However, as in

Robinson, there was no objection by Defendant nor the State and the error was not

assigned on appeal; thus, we find any error was harmless. See also State v.

McKeel, 13-855 (La.App. 3 Cir. 2/12/14), ___ So.3d ___. Additionally, in this

case, there was no written waiver as required by Article 780. In State v. Bell, 13-

1443, pp. 2-3 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, 832 (footnote omitted), a

similar error was addressed by this court, and this court held in pertinent part:

The record reveals no written waiver of jury trial as required by
La.Code Crim.P. art. 780. However, Defendant and his attorney were

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in open court when the judge addressed his right to a jury trial and
waiver thereof. Cf. State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d
321 (the preferred (not required) method is the court‘s advisement of
the right to a jury trial in open court and the defendant‘s personal
waiver). Thus, we conclude that the error in failing to obtain a written
waiver in violation of La.Code Crim.P. art. 780 is harmless under the
facts of this case.

Thus, as in Bell, we find the error was harmless in this case.

Next, the record does not indicate the trial court advised Defendant of the

prescriptive period for filing an application for post-conviction relief as required by

La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of

the provisions of Article 930.8 by sending appropriate written notice to him within

thirty days of the rendition of this opinion and to file written proof in the record

indicating Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir.

6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the State failed to show that he had the intent to

defraud Mr. Maldonado. He argues that the arrangement was contractual and,

therefore, a civil matter. Defendant further argues that, while he did do several

repairs on the vehicles, he did not agree to rebuild the engine of the 2000 Chevrolet

truck and that many of the parts ordered were for two, four-wheeler ATVs that he

had repaired for Mr. Maldonado. Defendant argues that the State failed to prove he

had the intent to commit fraud; therefore, the conviction of theft by fraud should be

vacated.

In reviewing the sufficiency of the evidence, an appellate court must

determine whether the evidence viewed in the light most favorable to the

prosecution was sufficient to convince a rational trier of fact that all the elements

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of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979).

Defendant was convicted of theft in violation of La.R.S. 14:67, which, in

pertinent part, is defined as follows:

A. Theft is the misappropriation or taking of anything of value
which belongs to another, either without the consent of the other to
the misappropriation or taking, or by means of fraudulent conduct,
practices, or representations. An intent to deprive the other
permanently of whatever may be the subject of the misappropriation
or taking is essential.

The fifth circuit in State v. Swanzy, 11-882, p. 7 (La.App. 5 Cir. 5/8/12), 96

So.3d 498, 502, reversed on other grounds, 12-1297 (La. 4/1/13), 110 So.3d 549,

12-1281 (La. 4/1/13), 144 So.3d 711, discussed the elements of theft by fraud and

the State‘s burden of proof, as follows:

[I]n order to support a conviction for theft pursuant to La. R.S. 14:67,
the State is required to prove that defendant misappropriated or took, a
thing of value, that belonged to another, without the consent of the
owner, and that he had the intent to deprive the owner permanently of
that which was misappropriated or taken. State v. Carmen, 08-478
(La.App. 5 Cir. 1/27/09), 3 So.3d 587, 591. In addition, the State is
required to prove the value of the stolen property, since the
determination of the severity of the offense and the degree of
punishment upon conviction depends upon the value of the stolen
goods. State v. Ramsdell, 06-644 (La.App. 5 Cir. 12/27/06), 949 So.2d
508, 511. In this case, the State was required to prove that the value
of the goods was over $500.

Theft is a crime of specific intent. State v. Patterson, 11-158
(La.App. 5 Cir. 11/29/11), 78 So.3d 855, 859. Specific criminal
intent is defined as ―that state of mind which exists when the
circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.‖
La. R.S. 14:10(1). Specific intent may be inferred from the
circumstances of a transaction and from the actions of the accused.
State v. Joseph, 09-400 (La.App. 5 Cir. 12/29/09), 30 So.3d 157, 165.
A reasonable and honest belief that one owns an interest in property
precludes a finding that he intended to take the property of another.
State v. Henry, 46,406 (La.App. 2 Cir. 8/10/11), 73 So.3d 958, 966;
State v. Rabalais, 99-623 (La.App. 3 Cir. 1/26/00), 759 So.2d 836,
841-42.

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In the current case, the following evidence was submitted at trial:

Colby Maldonado lived in Moreauville, Louisiana. He had known Defendant

since 2005. He stated that he and Defendant became good friends because they

shared a passion for riding and racing four-wheelers. He stated that Defendant was

a mechanic, and he had hired Defendant to do some work on two of his ―mud

trucks.‖ He testified that in 2008, he gave Defendant possession of a blue 2000

Chevrolet truck. He asked Defendant ―to rebuild the engine and like make it a full

race truck as in roll cage, fuel cells, racing engine, carburetor, just everything to

race it in the mud.‖ He said that after a year and a half, he asked to see how the

engine was coming along, but Defendant told him he was working on the truck at

―Nikki Joe‘s,‖ a mechanic‘s shop in Brouillette. Meanwhile, Mr. Maldonado

bought a white 1997 Chevrolet truck which he drove in mud races until he blew

out the engine. He stated that he took the 1997 truck to a friend‘s house, John

Lemoine, where they pulled out the engine, ―bored it out,‖ and asked Defendant

―to build [him] a 383 stocker out of the 350 engine block.‖ While Defendant never

picked up the 1997 Chevrolet truck engine, Mr. Maldonado paid for parts for the

engine.

As time went on, he got the 2000 truck back, without the engine. He stated

that there was nothing done to the truck at all. Mr. Maldonado testified that around

Christmas 2011, Defendant texted him that he had just delivered the 2000 engine

to Mr. Maldonado‘s house. Defendant said that the engine was ready to install.

However, when Mr. Maldonado examined the engine, he saw that, except for some

cosmetic silver paint on the block and black paint on the exhaust valves, nothing

had been done to the engine. Mr. Maldonado called his friend, Mr. Lemoine, and

together they dismantled the engine. He identified pictures of the engine and

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described how nothing had been cleaned, the inside of the head and valves were

―sooted up.‖ The pistons and cylinders should have been new or at least cleaned.

He stated that the next day he went to Defendant‘s house and retrieved the

remaining parts, the 350 transmission and the transfer case. Mr. Maldonado

identified pictures of the turbo 350 transmission and the transfer case that were to

be rebuilt but were not.

Mr. Maldonado identified eleven checks, the first check written June 29,

2008, and the last check written November, 8, 2011, totaling $13,497.95. He also

identified and discussed Defendant‘s exhibits 5-17, which, purportedly, were

invoices/receipts for the parts purchased, the labor cost, and the payments Mr.

Maldonado made from June 2008 to November 2011. Mr. Maldonado testified he

never received an invoice or a receipt; he just wrote a check for whatever

Defendant told him he was owed for parts and labor.

Mr. Maldonado testified that Defendant had done some work on one of his

four-wheelers in 2006. However, he asserted that several of the parts that were

listed on the invoices were for ATVs and not for trucks.

Brooks Jeansonne, who owned BJ‘s Bottle Shop and BJ‘s ATV and Truck

Accessories Shop, testified that he custom builds ATVs ―and do[es] lift kits on

trucks and tire and wheels, sound systems, accessorize ATVs and vehicles.‖ He

stated he has known Mr. Maldonado since they were youngsters and Defendant for

around ten years. He, Mr. Maldonado, and Defendant were good friends. Mr.

Maldonado would sometimes leave checks for Defendant at BJ‘s Bottle Shop. Mr.

Jeansonne reviewed the invoices/receipts. He identified several items listed as parts

for an ATV. He also pointed out that in two of the invoices/receipts, duplicate

items were purchased. He testified that he examined the engine and that, although

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the head and exhaust valves were painted, the engine had not been rebuilt. While

Mr. Jeansonne admitted he was not privy to the actual agreement between

Defendant and Mr. Maldonado, he indicated it was his understanding from

conversations between the two parties that Defendant was to rebuild the engine.

John Lemoine‘s testimony corroborated Mr. Maldonado‘s testimony. He

stated he was a mechanic and owned Lemoine Automotive and Repair Shop. He

helped check over the engine and testified that it was not rebuilt.

Defendant testified that he worked as a mechanic for Glenn‘s Auto Repair.

He said he has been a mechanic since childhood, when he used to help his father

repair vehicles. He stated he also had his own little vehicle repair business on the

side. He said he started to work for Mr. Maldonado in 2006 when he did work on

Mr. Maldonado‘s Yamaha Kodiak 450, a four-wheeler. Defendant reviewed the

invoices/receipts. He explained the parts and labor indicated on Defendant‘s

exhibits 5-10 were mostly for work on two of Mr. Maldonado‘s four-wheelers.

However, he did do repairs on the two trucks. He testified that there was never an

agreement to rebuild the 2000 Chevrolet engine. While he and Mr. Maldonado

pulled the engine out at Defendant‘s house, they eventually put the engine aside

because Mr. Maldonado had bought the 1997 Chevrolet truck and was racing it

until he blew out the engine.

He testified that he helped repair the front end of the 1997 truck twice and

the rear end once. He fixed the ―locker‖ once and ―built the transmission for that

one too.‖ He said the last thing he did to the 1997 truck was to repair the axles.

Defendant stated that, while he continued to print out the invoices/receipts

for his own records, after Mr. Maldonado balled up the first few invoices/receipts

and tossed them away, he stopped giving them to him. Furthermore, while he kept

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the receipts for the parts he had purchased, they were all mixed up with other

receipts, and he did not separate them out. He agreed that he could not show that

he purchased the parts listed on the invoices. He also insisted that the engine

shown in the State‘s Exhibit 14 was not the engine he had delivered to Mr.

Maldonado.

Prior to closing arguments, the trial court asked both counsel to address

specifically the element of intent to defraud Mr. Maldonado. After arguments, the

trial court ruled:

Well the other thing that [is] so important in favor of the state is
the fact that the engine was there so long and if it was there because it
was the intent to fix it. This is clearly a civil matter, however
whenever the indictment was brought and from the evidence
presented, most importantly the testimony from Mr. Jeansonne
cohobated [sic] that of Mr. Maldonado that the blue pickup truck it
was brought for the engine to be taken out and repaired and it simply
never was done. Eleven different checks were written to Mr. Bardwell
and there‘s only one invoice presented here today, the rest are all
receipts and one of them is pretty much a duplicate and a few of them
have duplicate parts. I don‘t know what was going on specifically in
Mr. Bardwell‘s life, it‘s obvious he‘s a good mechanic and he‘s
obviously a good man, but he did something in this thing that was
poor choices. He took money from Mr. Maldonado to do work and
obviously through the length of time and the number of checks clearly
knew that he wasn‘t going to do it and had the intent to keep the
money and not do that work, which means he must be found guilty of
the offense charged.

We agree with the trial court. Although intent is a question of fact, as in this

case, intent may be inferred from the circumstances of the transaction. State v.

Sepulvado, 93-2692 (La. 4/8/96), 672 So.2d 158, cert. denied, 519 U.S. 934, 117

S.Ct. 310 (1996). The circumstances in this case indicate that Defendant had no

intent to carry out his promise. Mr. Maldonado testified that Defendant had

possession of the truck and the engine for more than a year-and-a-half. When

Defendant returned the engine to Mr. Maldonado with the promise that he could

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immediately install the engine, he misrepresented that the engine had been rebuilt

to specification. Mr. Maldonado‘s testimony that the engine that was returned to

him was not rebuilt was corroborated by Mr. Jeansonne and Mr. Lemoine, both of

whom were in the automotive repair business. Furthermore, Defendant‘s fraudulent

intent was demonstrated by the fact that he painted the engine block and exhaust

valves to look new but did nothing to repair or rebuild the engine. After reviewing

the record and giving deference to the trial court‘s factual conclusions, we find that

the trial court did not err when it determined that Defendant misrepresented his

intention to fully perform as agreed. Accordingly, there is no merit to this

assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred when it awarded Mr. Maldonado

―a full award of restitution in the amount of $10,421.95.‖ He states in brief: ―This

amount represents the sum total of all checks paid by Maldenado to Bardwell. This

conflicts with the court‘s established factual finding that ‗clearly some of the

checks that were paid by Mr. Maldenado [sic] were paid for other work[.]‘‖

Defendant argues that he earned fees for actual work done. However, this is

the extent of Defendant‘s argument. He does not discuss which checks paid to Mr.

Maldonado represented what ―other work.‖

At the sentencing hearing, the trial court stated for the record:

Also a special condition of probation is you make restitution to the
victim of the crime in the sum of $10,421.95 and I want to tell you,
that to come up with that amount, actually Mr. Lafargue representing
the state, after all the hard work of Officer Dauzat in reviewing the
file, and myself looking through the file that is the best number we
could come to. Mr. Maldonado actually claimed more money to be
[owed] but some of that came from something that really pre-dated
these charges.

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As noted above, the total sum of the checks came to $13,497.95. The State,

in brief, points out that while the checks submitted into evidence were dated

beginning June 2008, the indictment listed the offense as occurring between the

years of 2010 and 2011. Accordingly, the trial court considered only the checks

written in 2010 and 2011, which totaled $10,421.95. Defendant has failed to show

how the trial erred when it determined the amount of restitution to be paid to Mr.

Maldonado. We find that there is no merit to this assignment.

DECREE

For the reasons set forth in this opinion, Defendant‘s conviction is affirmed

as are his conditions of probation pursuant to La.Code Crim.P. art. 893(E).

However, the trial court is directed to inform Defendant of the provisions of

La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant

within thirty days of the rendition of the opinion and to file written proof in the

record that Defendant received the notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal, Rule 2–16.3.

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