STATE v. DIAZ (2025)

Defendant, Collin R. Diaz, appeals his conviction for theft valued at $1,000 or more but less than a value of $5,000, which was adjudicated in the 24th Judicial District Court, Division “F”. For the following reasons, we modify the verdict to a lesser-included offense, vacate the habitual offender adjudication, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 16, 2023, the Jefferson Parish District Attorney filed a bill of information charging Defendant with theft of an iPhone valued between $1,000 and $4,999 from Savana Cavalier, in violation of La R.S. 14:67(B)(3). Defendant was arraigned on October 17, 2023, and pleaded not guilty. On June 10, 2024, the case proceeded to trial before a six-person jury.

At trial, Savana Cavalier testified that on July 8, 2023, she was working at the 420 Vape and Smoke Shop at the intersection of “Kenner and Airline.” That afternoon, three male individuals entered the shop, one of whom she recognized because he came in frequently and purchased “Gars,” a tobacco product. She recalled that while assisting two males, she left her cell phone on the counter, estimating that it remained there for approximately 10 minutes. Afterward, she saw that her cell phone was no longer where she had left it and believed it had been taken. Ms. Cavalier then used her coworker's phone to log into her Apple ID to track her cell phone, which was no longer inside the shop. She stated that the tracking map showed the phone moving toward New Orleans. Ms. Cavalier stated that the shop had surveillance footage, which she was able to view at the end of her shift when the owner arrived. In the footage, she saw that one of the male regulars had taken her phone. She testified that she recorded the surveillance footage using her coworker's cell phone.¹

Afterward, Ms. Cavalier called and reported the incident to the Kenner Police Department. She followed up with another call two days later. She said the officers did not retrieve the surveillance footage until approximately four days later, on July 12, 2024, because they had to wait for her boss to return. She confirmed that she showed the officer the tracked location of her phone, which was in Chalmette on July 12th. She further explained that she was able to track the phone until the tracking stopped. Approximately four days after the incident, the phone stopped at a Walmart in Gretna. Ms. Cavalier testified that a few days after the incident, an officer came to the shop and presented her with a photographic lineup. She recalled identifying photograph two as the perpetrator. In open court, she identified Defendant as the individual who stole her cell phone.

Ms. Cavalier described her phone as an iPhone 14 Pro Max with approximately “forty something gigabytes.” She was unsure when asked whether she had reported it as having 128 gigabytes. She stated that she was still making payments on her iPhone under a T-Mobile contract shared with her mother. She recalled having the iPhone for “a little bit less than a year,” but she did not remember the purchase price. She estimated that she paid approximately $130 per month for the phone, including service, until July when it was stolen. Ms. Cavalier testified that she now had an “old version of the iPhone 14 Pro Max” and was still making payments of $136 per month on it. She stated that she replaced the phone about three weeks after the incident, around the beginning of August, and confirmed that the payment included both the cost of the phone and the service. She testified that she was unable to recover her father's funeral photos, her graduation photos, meaningful text messages, and passwords and IDs for work.

On July 10, 2024, Officer Rhinell Barice of the Kenner Police Department responded to a service call regarding the theft of a phone. Upon arrival, the complainant (Ms. Cavalier) reported that her iPhone had been stolen two days earlier. She described the alleged perpetrator and stated that he frequently visited the store. Officer Barice reviewed the surveillance footage from the day of the incident. He elaborated that the complainant tracked her cell phone to the “1000 block of Taylor Street,” about four to five streets east of the shop. He went to the location, found no suspect, and closed his report, stating that he took no other action.

Detective Emile Sanchez of the Kenner Police Department was assigned to the case approximately a month after the incident. Upon reviewing the surveillance footage, he observed a white male with sleeve tattoos on both arms reach onto the sales counter where Ms. Cavalier was working, take a phone, and place it in his pocket. He stated that he was able to identify this individual as Defendant based on his prior interactions with him. Detective Sanchez stated that he was aware Defendant had previously been in jail, so he first confirmed that Defendant was no longer incarcerated before considering him a suspect. He conducted an open search of Defendant's Facebook page, which contained photographs showing tattoos that matched those in the surveillance footage. He confirmed Ms. Cavalier identified Defendant in a photographic lineup.²

Detective Sanchez testified that Ms. Cavalier provided the serial number and the IMEI number for her iPhone. He searched the serial number in a law enforcement database, Leads Online,³ and discovered that the device had been sold at an EcoATM located in a Walmart vestibule. He described an EcoATM as a kiosk where one can sell old phones, tablets, and other items in exchange for money. The detective confirmed that he printed out the receipt of the transaction and identified the document as the “ticket from Leads Online documenting the transaction.” He relayed that the document identified the cell phone as an “Apple iPhone 14 Pro Max 128 gigabyte.” He confirmed that this is consistent with the cell phone described as being stolen from Ms. Cavalier. When asked whether the details listed the condition of the iPhone that was traded in, the detective responded, “It says perfect.” He explained that during an EcoATM transaction, there are photographs of the person who conducts the transaction, the device, the subject's identification or driver's license, and it takes a thumb print and a signature. He testified that the receipt reflected the name “Daryl James” as the person who completed the transaction.⁴ However, after reviewing the associated photographs, including an eye lens view of the subject completing the transaction, Detective Sanchez recognized Defendant in the photograph.

Detective Sanchez stated that he investigated the possible value of the phone by conducting a Google search. He explained that he performed several searches and determined the average price to be about $1,099.99. Detective Sanchez explained that, before the case, he met with the prosecutor, and they learned he had personal knowledge regarding the value of the cell phone. He confirmed that he owned an “iPhone 14 Pro Max, 128 gig,” which he acquired on July 18, 2023, eight days after the incident. He stated that the retail price of the phone on the contract in July 2023 was $1,099.99. At trial, Detective Sanchez confirmed that he had purchased his new phone a year earlier. He stated that his search did not include press releases from Apple. He did not recall researching when the iPhone 14 Pro Max was released and denied learning that it had been released in September 2022. He said that, at the time of his investigation, the iPhone 15 Pro Max had not yet been released. He stated that it was possible the release of the iPhone 15 could be important because a new model might reduce the value of an older model. The detective did not recall determining when Ms. Cavalier purchased the cell phone during his interview with her, stating that it was not necessarily important to its value. He denied asking about the phone's condition and was not aware whether it was cracked, damaged, dropped, or exposed to water.

Frank Mistretta testified for the defense that he is a licensed private investigator contracted to the Public Defender's Office. He stated that he participated in the investigation by conducting background research on the iPhone 14 Pro Max, including its release date. He identified a copy of the Apple release, the debut of the directions, and the performance information for the iPhone 14 Pro Max. He said that the document indicated it was released in September 2022. Mr. Mistretta said that the Apple listing price for a brand-new iPhone 14 Pro Max would be $45.79 per month for twenty-four months or $1,099.00 in total. On cross-examination, he confirmed that this price was for the device alone. He also confirmed that he never worked for Apple and was not an expert on cell phones.

At the conclusion of presentation of evidence, the jury found Defendant guilty as charged. On June 25, 2024, Defendant filed a “Motion for Post-Verdict Judgment of Acquittal Motion for Arrest of Judgment Motion for New Trial” and a “Proffer of Anticipated Testimony and Evidence.” On that same date, the trial judge denied the motion. Immediately thereafter, the judge sentenced Defendant to four years imprisonment at hard labor to run consecutively “with any other sentences that he is serving.” The State then orally noticed its intent to file a habitual offender bill of information and explained that it gave a copy to defense counsel. Counsel confirmed receipt and stated that Defendant intended to plead not guilty to the habitual offender bill of information.

That same day, the State filed a habitual offender bill of information, wherein it alleged Defendant was a second-felony offender.⁵ On July 1, 2024, Defendant filed a “Motion for Reconsideration of Sentence.” Also, on July 1, 2024, Defendant filed a “Defense Objections/Response to Multiple Offender Bill of Information.” Defendant then filed a motion for appeal, wherein he asserted that he was aggrieved by the June 10, 2024 verdict and the sentence imposed on June 25, 2024. On July 23, 2024, the State filed a response to the defense's objection to the habitual offender bill of information.

On July 24, 2024, the trial court ordered the parties to notify the Attorney General's Office of the next proceeding and continued the habitual offender bill hearing. On August 22, 2024, the trial judge denied the defense's objection to the habitual offender bill of information. Afterward, the trial court held a hearing on the habitual offender bill, at which time Defendant was adjudicated a second-felony offender. The court vacated the original sentence and resentenced Defendant to four years imprisonment at hard labor without benefit of probation or suspension of sentence. The court ordered the sentence to run “consecutive to any other sentences that he is serving at this time.” Also on August 22, 2024, the trial court granted the motion for appeal.

On September 4, 2024, Defendant filed a second motion for appeal, wherein he asserted that he was aggrieved by the June 6, 2024 verdict,⁶ the sentence imposed on June 25, 2024, the “Multiple Offender finding on the 22nd day of August 2024,” and the enhanced sentence imposed on August 22, 2024. The judge granted the second motion for appeal the day it was filed. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges that the trial court erred when it denied his motion for new trial and motion for post-verdict judgment of acquittal.

LAW AND ANALYSIS

Defendant argues that the State failed to prove the phone was worth at least $1,000; consequently, he could only be convicted of misdemeanor theft and would not be subject to any habitual offender enhancement. He contends the State failed to establish the purchase price or condition of the phone at the time of the theft. He avers Ms. Cavalier testified only about her monthly service payments, not an equipment cost, and no phone bill or receipt was introduced. He contends that, although Ms. Cavalier stated her bill increased by $6 after replacing the phone, no documentation clarified whether this reflected equipment charges. Detective Sanchez testified about the $1,099.99 retail price based on his own phone purchase but admitted he did not investigate the value of Cavalier's specific phone in July 2023, whether it was new or used, or the release date of the iPhone 15. Defendant emphasizes that the only evidence of a value over $1,000 was Detective Sanchez's testimony about his own phone purchase. He contends that, in contrast, the defense offered evidence at trial and in support of the motion in limine showing that comparable iPhones in excellent condition with more memory than Cavalier's were listed for under $1,000. He argues that the proof presented by the State was insufficient to establish an essential element of the offense, and the trial court erred in denying his motion for new trial and motion for post-verdict judgment of acquittal (“PVJA”).

The State argues that it presented sufficient evidence to prove the stolen phone's value exceeded $1,000, the only contested element at trial. It relies on testimony from Ms. Cavalier, Detective Sanchez, and Defendant's own investigator. Ms. Cavalier testified she had been paying $130 per month for her iPhone 14 Pro Max, and Detective Sanchez testified that he researched the model and purchased the same phone shortly after the theft for $1,099.99. The State notes that expert testimony was not required to establish value. The State acknowledges the phone was sold at an EcoATM for $175, but it maintains this does not reflect actual value, as such kiosks offer quick, below-market payouts. The State also notes that Defendant's investigator testified that the phone retailed for $1,099, and no evidence was presented that the price had dropped. It contends that any material from pretrial motions not introduced at trial is irrelevant to the sufficiency analysis. The State concludes that the evidence supported the jury's verdict and that this claim is without merit.

Here, defense counsel filed a single motion titled “Motion for Post-Verdict Judgment of Acquittal Motion for Arrest of Judgment Motion for New Trial.” In the motion, Defendant provided the background of his motion in limine, explaining that although he sought to exclude Detective Sanchez's testimony regarding the phone's value based on “Google research,” the trial court allowed it. He further explained that, in rebuttal, the court excluded defense evidence regarding depreciation and potential trade-in value of the iPhone 14 Pro Max.

In the motion, counsel set out subcategories for each sub-motion. Regarding the PVJA, he argued the jury's verdict on value was irrational, noting that while a new iPhone 14 Pro Max retailed for $1,099, Ms. Cavalier had purchased hers about a year before the July 8, 2023 theft. Counsel maintained it was unreasonable to conclude the phone retained a value of at least $1,000 at that time, and therefore, Defendant was entitled to acquittal on the charged offense and was guilty only of the lesser theft under $1,000. In the new trial portion of the motion filed under La. C.Cr.P. art. 851, counsel argued the verdict was contrary to the law and evidence and re-urged his PVJA arguments. Counsel further asserted that prejudicial error occurred when the State made improper closing arguments by referencing inconvenience to the victim as part of value and by highlighting the defense's failure to present evidence of the phone's condition. Counsel also argued it was error to exclude the defense's depreciation evidence and to display Defendant's arm tattoos. Counsel concluded that Defendant was entitled to a new trial.

In the motion for arrest of judgment, counsel argued that the verdict was fatally defective because it rested on an erroneous application of the burden of proof. Counsel averred that, absent sufficient proof of value, the jury improperly shifted the burden to Defendant to show the phone was worth less than $1,000. Counsel concluded the verdict was invalid and required an arrest of judgment. Before sentencing on June 10, 2024, defense counsel submitted on the motions, and the State asserted that the motions should be denied, after which the trial court denied the motions.

The question of sufficiency of evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal under La. C.Cr.P. art. 821. State v. Aguilar, 23-34 (La. App. 5 Cir. 11/15/23), 376 So.3d 1105, 1108. Pursuant to La. C.Cr.P. art. 851, a motion for a new trial is based upon the supposition that an injustice has been done to the defendant, and unless such injustice is shown, the new trial motion shall be denied no matter upon what allegations the motion is grounded. State v. Lloyd, 21-645 (La. App. 5 Cir. 8/24/22), 348 So.3d 222, 230, writ denied, 22-1354 (La. 11/22/22), 350 So.3d 499. When a motion for a new trial is based on the verdict being contrary to the law and the evidence, there is nothing for review on appeal. Id. at 231. However, both the Louisiana Supreme Court and this Court have addressed the constitutional issue of the sufficiency of the evidence under this circumstance. State v. Condley, 04-1349 (La. App. 5 Cir. 5/31/05), 904 So.2d 881, 888, writ denied, 05-1760 (La. 2/10/06), 924 So.2d 163.⁷

The constitutional standard for sufficiency of the evidence is whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Johnson, 23-309 (La. App. 5 Cir. 12/27/23), 379 So.3d 771, 775. This directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. Aguilar, 376 So.3d at 1108. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence. Id. Further, a reviewing court errs by substituting its appreciation of the evidence and the credibility of witnesses for that of the fact-finder and overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. Id. As a result, under the Jackson standard, a review of the record for sufficiency of the evidence does not require the reviewing court to determine whether the evidence at trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Gassenberger, 23-148 (La. App. 5 Cir. 12/20/23), 378 So.3d 820, 829. When addressing the sufficiency of the evidence, consideration must be given to the entirety of the evidence, including inadmissible evidence which was erroneously admitted, to determine whether the evidence is sufficient to support the conviction. State v. Tate, 22-570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236, 245.

In its determination of whether any rational trier of fact would have found the defendant guilty, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. State v. McGinnis, 23-472 (La. App. 5 Cir. 7/31/24), 392 So.3d 963, 975. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. Id. In the absence of internal contradiction or irreconcilable conflicts with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. Id.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Johnson, 23-273 (La. App. 5 Cir. 2/28/24), 382 So.3d 1129, 1134. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides, “[A]ssuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Id.

The reviewing court is not required to determine whether a defendant's suggested hypothesis of innocence offers an exculpatory explanation of events. Rather, the reviewing court must evaluate the evidence in the light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Dillon, 23-423 (La. App. 5 Cir. 6/5/24), 391 So.3d 82, 89, writ denied, 24-835 (La. 11/14/24), 395 So.3d 1182.

In this case, Defendant was convicted and sentenced for theft valued at $1,000 or more but less than a value of $5,000, in violation of La R.S. 14:67(B)(3). For the crime of theft, the State is required to prove that the 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. La. R.S. 14:67. See also State v. Smith, 09-36 (La. App. 5 Cir. 4/28/09), 13 So.3d 570, 575. In addition, the State is required to prove the value of the stolen property because the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of the stolen property. State v. Ramsdell, 06-644 (La. App. 5 Cir. 12/27/06), 949 So.2d 508, 511. Specifically, the State must present evidence of the value of the stolen property at the time of the theft. See State v. Trosclair, 19-833 (La. App. 3 Cir. 6/24/20), 299 So.3d 704, 715, writ denied, 20-949 (La. 1/20/21), 308 So.3d 1162 (citing State v. Smith, 94-901 (La. App. 5 Cir. 8/28/96), 680 So.2d 95, 98).

The testimony of the owner is sufficient to establish the value of the stolen property if it is clear and uncontradicted. State v. Richey, 13-228 (La. App. 5 Cir. 10/30/13), 128 So.3d 1143, 1150. The weight of the owner's testimony is to be left to the jury. State v. Dilworth, 358 So.2d 1254, 1256-57 (La. 1978). However, when the owner either expressly or by reasonable inference demonstrates a lack of knowledge about the particular value at issue, his opinion may be ruled inadmissible. Id. In satisfying its burden of proof the State may introduce the physical items possessed by the defendant into evidence thus enabling the jury to examine them and determine their condition and value. State v. Molere, 11-1657 (La. App. 4 Cir. 9/5/12), 99 So.3d 1050, 1055; State v. Lambert, 475 So.2d 791 (La. App. 3d Cir. 1985), writ denied, 481 So.2d 1345 (La. 1986).

Here, Defendant only challenges the value element, namely, that the State failed to prove Ms. Cavalier's stolen iPhone 14 Pro Max was valued at $1,000 dollars or more but less than $5,000. He does not challenge the sufficiency of any other elements of the crime.⁸

At trial, Ms. Cavalier did not testify to the purchase price and described her monthly payments under a T-Mobile plan, which included both the device and service. She could not identify the phone's storage capacity, and her testimony did not establish the phone's condition at the time of the theft. She stated that she had owned the iPhone 14 Pro Max for “a little less than a year.” Detective Sanchez relied on Google searches and his own related phone purchase of the same model for $1,099.99, and the defense investigator referenced Apple's release price of $1,099.99. Detective Sanchez explained that the transaction receipt reflected that the iPhone 14 Pro Max was described as being in “perfect” condition and listed with a storage capacity of “128GB.” He further testified that EcoATM receipts include photographs of the person conducting the transaction, the device, and the individual's identification, as well as a thumbprint and signature. It is not clear from the record, however, whether Defendant himself entered the description of the phone's condition as “perfect” or how that particular information was generated.

The evidence presented by the State addressed only the potential purchase price of a new iPhone 14 Pro Max. Detective Sanchez testified about conducting Google searches and noted his own purchase of the same model around the time of the theft for $1,099.99. In addition, Mr. Mistretta established that the iPhone 14 Pro Max debuted in September 2022 with a retail price of $1,099.00. However, this evidence reflected only the price of a new device at release and around the time of the theft. The State did not establish the actual condition or value of Ms. Cavalier's iPhone 14 Pro Max at the time it was stolen in July 2023, nearly a year after she obtained it.

In State v. LeBlanc, 10-1484 (La. App. 4 Cir. 9/30/11), 76 So.3d 572, writ denied, 11-2300 (La. 11/18/11), 75 So.3d 446, the defendant was charged with the theft of copper telephone cable valued in the amount of $500 or more. The only value of the cable presented at trial was a value seven or eight months after the theft. The court found that without some other reference point for the average juror, it was purely speculative of the jury to conclude that the value of the cable at the time of the theft was $500 or more based simply on the fact that its value seven to eight months after the theft was $1,300. The court stated, “However, nothing in this opinion should be construed as a suggestion that a valuation of a stolen property as of a date different from that of the date of the theft is per se irrelevant to establishing value under La. R.S. 14:67. It all depends on the nature of the property.” Id. at 584. The court concluded that the State did not establish beyond a reasonable doubt that the value of the cable taken by the defendant and/or the copper wire inside of it was $500 or more on the day of the theft. The court reversed the defendant's conviction and remanded the case to the trial court for entry of a judgment of guilty of theft where the taking amounted to less than $300 and for resentencing. Id.

In State v. Boyd, 08-659 (La. App. 4 Cir. 11/12/08), 999 So.2d 40, the defendant was charged with theft of an item valued at $500 or more. A witness testified at trial that the bicycle the defendant stole originally cost approximately $525. No evidence was introduced as to the value of the bicycle or its physical condition at the time it was stolen, which was approximately two years after it was purchased. The trial court found the defendant guilty of theft of an item valued between $300 and $500. On appeal, the defendant argued that the State failed to prove the value of the bicycle at the time of the taking. The fourth circuit agreed, finding the evidence insufficient. The appellate court held that the evidence supported only a conviction for possession of stolen property valued at less than $300 and entered a judgment of guilty to that responsive verdict pursuant to La. C.Cr.P. art. 821(E). Id. at 48.

In State v. Williams, 610 So.2d 129 (La. 1992) (per curiam), the victim testified that she purchased her vehicle for $25,000 ten years before it was stolen. She also testified the vehicle had maintenance problems at the time it was stolen and that she had intended to replace it. The defendant was convicted of illegal possession of stolen property valued over $500. On appeal, he argued that the State failed to prove the value of the vehicle. The appellate court agreed and reversed the defendant's conviction and sentence, entering a verdict of acquittal. The supreme court found that the court of appeal erred in failing to modify the verdict under La. C.Cr.P. art. 821 and to order entry of a judgment of conviction of the lesser-included responsive offense of possession of stolen property valued at less than $100. Id.

In this matter, the proof presented by the State resembles the evidence presented in LeBlanc, Boyd, and Williams, where generalized or outdated estimates failed to establish value at the time of the theft. However, the State did establish that the iPhone 14 Pro Max had some value. Ms. Cavalier testified that she was actively using the phone up until the theft, and Defendant immediately attempted to resell it. The transaction records reflected the phone is described as in “perfect” condition, and Defendant was able to obtain value for it during the EcoATM transaction. Accordingly, we conclude the State did not establish that the phone was valued between $1,000 and $4,999 at the time of the theft. Further, we find that the value of the iPhone 14 Pro Max at the time it was taken is unclear, but it had some value.

Accordingly, we must modify the verdict. When the evidence admitted by the State does not support the conviction, the court is not required to discharge the defendant. See State v. Byrd, 385 So.2d 248, 251 (La. 1980). “[T]he discharge of the defendant is neither necessary or proper when the evidence does support a conviction on a lesser and included offense which was a legislatively authorized responsive verdict.” Id. In a subsequent decision, the Louisiana Supreme Court specified that “[f]or offenses listed in C.Cr.P. 814, we will apply the doctrine of State v. Byrd only when the lesser included offense of which defendant might be found guilty by jury verdict is a statutory responsive verdict to the crime charged.” State v. Jones, 426 So.2d 1323, 1328 (La. 1983).

La. C.Cr.P. art. 821 was added by Acts 1982, No. 144 § 1, and subsection (E) states:

If the appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.

In Williams, the Louisiana Supreme Court found that the appellate court erred by acquitting the defendant, and it reasoned,

La.Rev.Stat. 14:69 proscribes the intentional possessing, receiving, or concealing of “anything of value․” The latter phrase “must be given the broadest possible construction, including any conceivable thing of the slightest value, movable or immovable․” La.Rev.Stat. 14:2(2). While the state's case may have asked jurors to speculate on the range of values for the Cadillac, a rational trier-of-fact could have determined that the vehicle had some value, if no more that [sic] the $20.. [sic] defendant told police he paid for the vehicle․

610 So.2d at 130. (Emphasis found in original).

The Williams court recognized that the vehicle had some value and that the court of appeal erred in failing to modify the verdict under La. C.Cr.P. art. 821. The supreme court entered a verdict of guilty of illegal possession of stolen property valued less than $100 and remanded for resentencing. Id.

In Johnson, 23-273, 382 So.3d 1129, the defendant was convicted on count two for illegal possession of a stolen thing valued at $25,000 or more. This Court found that the State failed to prove the value of the stolen Honda Civic was $25,000 or more, and therefore, it vacated the defendant's conviction and sentence for count two. Citing Williams, this Court affirmed that “the proper remedy, pursuant to La. C.Cr.P. art. 821, is to enter a conviction for the lesser included offense rather than an acquittal.” This Court found that pursuant to La. C.Cr.P. art. 821, the evidence, viewed in light most favorable to the State, supported a conviction for the lesser included misdemeanor offense of illegal possession of a stolen thing less with a value than $1,000, in violation of La. R.S. 14:69(B)(4). Id. at 1136-37. This Court vacated the defendant's conviction and sentence as to count two, illegal possession of a stolen thing at $25,000 or more, modified the verdict by rendering a judgment of conviction of illegal possession of a stolen thing valued at less than $1,000, and remanded to the trial court for resentencing. Id. at 1138.⁹

In the instant case, we find that Ms. Cavalier's testimony that she used the iPhone 14 Pro Max up until the theft, together with the EcoATM listing—which described it as “perfect,” and included a photograph, and reflected that Defendant was able to obtain value for it—are sufficient evidence to find that the iPhone 14 Pro Max had some value under the broadest possible construction in accordance with La. R.S. 14:2(2). Thus, we find that there was enough evidence to support a conviction for a lesser-included responsive offense, and we modify Defendant's verdict, pursuant to La. C.Cr.P. art. 821, and the above-cited case law.¹⁰ As such, we further find that the nominal value is sufficient to support a conviction for the lesser-included misdemeanor offense of theft less than $1,000 in violation of La. R.S. 14:67(B)(4), for the statute has no specific minimum value the State was required to prove. We remand the matter to the trial court for resentencing. Consequently, setting aside the conviction for theft valued at $1,000 but less than a value of $5,000 also requires that we set aside Defendant's habitual offender adjudication.

DECREE

For the foregoing reasons, we modify Defendant's conviction to the lesser-included misdemeanor offense of theft less than $1,000, in violation of La. R.S. 14:67(B)(4). Furthermore, we vacate Defendant's second-felony habitual offender adjudication. We remand the matter to the trial court for resentencing.

VERDICT MODIFIED; HABITUAL OFFENDER ADJUDICATION VACATED; REMANDED FOR FURTHER PROCEEDINGS

I concur in the decision to modify Defendant's conviction to the lesser-included misdemeanor offense of theft less than $1,000, and to vacate Defendant's second-felony habitual offender adjudication and sentence.

For the crime of theft, the State is required to prove that the 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. La. R.S. 14:67. In addition, because the determination of the severity of the offense and the degree of punishment upon conviction depends upon the value of the stolen property, the State is required to prove the value of the object at the time of its misappropriation. State v. Ramsdell, 06-644 (La. App. 5 Cir. 12/27/06), 949 So.2d 508, 511. Thus, to satisfy all elements for proving a violation of Louisiana Revised Statute 14:67, the State must present evidence that the value of a misappropriated object at the time of the incident is within the defined range, but not its precise value.

The appellate review standard for sufficiency of the evidence is whether, upon viewing the direct and circumstantial evidence in a light most favorable to the prosecution, a rational trier of fact could find that the State proved all of the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Meyers, 620 So.2d 1160, 1162 (La. 1993). This directive requires the reviewing court to consider the entre record of evidence presented to the trier of fact, not just the evidence most favorable to the prosecution. State v. Vincent, 08-1432 (La. App. 4 Cir. 3/18/09), 7 So.3d 1243, 1247, writ denied, 09-0876 (La. 1/8/10), 24 So.3d 858. Applying this standard, a reviewing court is not permitted to second guess the rational credibility determinations of the fact finder at trial, nor is a reviewing court required to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. State v. Morehead, 17-765 (La. App. 3 Cir. 2/15/18), 239 So.3d 330, 334–35, writ denied, 18-0528 (La. 2/11/19), 263 So.3d 894 (citing: State v. Marshall, 04-3139 (La. 11/29/06), 943 So.2d 362, 367).

In weighing the evidence of value, a jury may rely upon common knowledge and reasonable inferences drawn from the evidence. See State v. LeBlanc, 10-1484 (La. App. 4 Cir. 9/30/11), 76 So.3d 572, writ denied, 11-2300 (La. 11/18/11), 75 So.3d 446; State v. Davis, 569 So.2d 131 (La. App. 1 Cir. 1990). When the question for the jury is determining the value of a misappropriated object under Louisiana Revised Statute 14:67, appellate courts must not substitute their judgment for that of the jury when the evidence could support a rational finding of requisite value. State v. Harris, 97-0778 (La. 3/4/98), 708 So.2d 387. However, the reviewing court's deference to the jury finding does not extend to verdicts which are unsupported by sufficient evidence for a rational finding of value or is based on impermissible speculation. State v. Leblanc, supra.

As previously discussed, the evidence must support a finding of the misappropriated object's value at the time of the theft. State v. Caminita, 16-0121 (La. App. 1 Cir. 9/16/16), 203 So.3d 1100, 1103, writ denied, 16-2045 (La. 9/6/17), 224 So.3d 988. Louisiana criminal law does not provide a statutory definition of value. However, courts have accepted fair market value as the measure applicable to violations of Louisiana Revised Statute 14:67. See State v. Morehead, supra. Common usage of the term fair market value is the price that a seller is willing to accept, and a buyer is willing to pay on the open market and in an arm's length transaction. Black’ Law Dictionary (12th ed. 2024).

Determining the fair market value of any object involves unavoidable inherent speculation. Assessing an object's value when it is not available for inspection and appraisal as in this case compounds the imprecision. Our jurisprudence affords substantial deference to jury value determinations which are not speculative beyond the evidence. State v. Kimble, 22-373 (La. App. 5 Cir. 5/8/24), 389 So.3d 902, 916–17, reh'g denied (May 30, 2024), writ denied, 24-00882 (La. 12/27/24), 397 So.3d 1219.

Nonetheless, it is incumbent on the State to present evidence of the object's value at the time of the incident. Evidence of its purchase price or replacement cost is insufficient to carry the State's burden. In State v. Peoples, 383 So.2d 1006 (La. 1980), the Louisiana Supreme Court held that the purchase price and replacement cost of used electronic office equipment was not sufficient proof of its value to support the Defendant's conviction of theft of goods over $500.00. An exception for relying upon the listed retail price to prove value of the misappropriated object is where the theft is from a merchant. State v. Hudgins, 400 So.2d 889 (La. 1981).

The misappropriated object in this case was an Apple iPhone 14 Pro Max. The Apple iPhone is ubiquitous. Evidence was presented to the jury in this case that Apple released its iPhone 14 Pro Max models in September 2022. At the time Defendant misappropriated Ms. Cavalier's device in July 2023, Apple had not yet released its next iPhone model. Ms. Cavalier purchased her iPhone 14 Pro Max through her cellular communications carrier, T-Mobile several months beforehand. She could not recall its sale price but testified that she was making payments towards the purchase price through monthly installments to T-Mobile under a service contract.

When Defendant sold Ms. Cavalier's iPhone to an EcoATM, it was described to be in perfect condition. Using the iPhone 14 Pro Max serial number provided by Ms. Cavalier, Detective Sanchez investigated the value of that same iPhone model prior to the release of Apple's iPhone 15. Coincidental to his investigation, Detective Sanchez testified that he personally purchased the same model iPhone ten days following the theft for the retail price of 1,099.00. Detective Sanchez further testified this was the average price for the same device as reported in Google search results. Frank Mistretta testified for the defense that Apple promoted the list price for a new iPhone 14 Pro Max as $45.79 per month for twenty-four months. The sum of those monthly payments is $1,099.00.

In this case, there is no evidence on which a rational jury could find the value of Ms. Cavalier's used iPhone 14 Pro Max to be greater than $999.99 on July 8, 2003. The record reflects evidence proving the price for a new iPhone 14 Pro Max remained stable at $1,099.00 from the time of the theft until Apple released its new model iPhone for sale. However, no evidence whatsoever was presented as to the fair market value of a used iPhone 14 Pro Max on or around the date it was stolen from Ms. Cavalier. As such, in reviewing all of the evidence presented in a light most favorable to the prosecution, I conclude that the jury was required to engage in impermissible speculation to arrive at its verdict of guilt for theft valued at $1000 or more but less than a value of $5,000.

For the foregoing reasons, I concur.

I concur with the opinion, for the reasons assigned by Judge Marcel.

FOOTNOTES

1.   The surveillance footage was admitted into evidence and played for the jury. At trial, Ms. Cavalier identified herself in the video and pointed out the location of her cell phone, which she stated was “right behind the basket.” She testified that the video showed two men, one wearing a bucket hat and one Black male in a black t-shirt, standing at the counter and petting the store cats. She denied seeing either man reach over the counter because she was at the register with a customer. She further confirmed that the video showed one of the store's regular customers entering, wearing red shorts and a black tank top. Finally, Ms. Cavalier confirmed that the video showed her phone being removed.

2.   At the State's request, Defendant displayed the tattoos on his arms for the jurors.

3.   Detective Sanchez explained that Leads Online contains pawn records, scrap metal records, and similar information.

4.   The “LeadsOnline Ticket–EcoATM–Walmart #163” receipt provides the ticket date, upload date, and ticket number. It lists the name “James, Darrel Antwione,” along with identification number, date of birth, address, physical description, race, eye color, hair color, height, and weight. In the item listing, the device is described as an “iPhone 14 Pro Max, 128GB T-Mobile A2651,” with serial number “JVHD2X3KDM.” The “details” section of the ticket further states: “CELL PHONE DECLARED DATE OF OWNERSHIP BEGAN: 05/2021 USB: JVHD2X3KDM BARCODE: 30202307121602523210077 Gray Condition: Perfect Phone IMEO Number: D:355909995511097.” It also reflects the amount as $175.00.

5.   In the habitual offender bill of information, the State alleged that Defendant previously pleaded guilty on July 20, 2020, in case number 19-1000 of the docket of Division “H” of the 24th Judicial District Court with the crime of conspiracy to commit armed robbery, in violation of La. R.S. “14:26:64.” It appears that this citation format references both La. R.S. 14:26 and La. R.S. 14:64. See State v. Bonney, 12-KA-175 (La. App. 4 Cir. 11/14/12), 2012 WL 5597860, writ denied sub nom. State ex rel. Bonney v. State, 13-1982 (La. 4/11/14), 137 So.3d 1208.

6.   The date is incorrect. The verdict was rendered on June 10, 2024.

7.   Although Defendant generally argues on appeal that the trial court erred in denying the motion for new trial and PJVA, he focuses on sufficiency of the evidence. Defendant does not address the motion for arrest of judgment.

8.   Although not raised by Defendant on appeal, we find that a rational trier of fact could have found that the other elements of the crime were proven beyond a reasonable doubt. In the instant case, Ms. Cavalier testified that Defendant stole her iPhone 14 Pro Max while she was working on July 8, 2023. She identified and described surveillance footage from the shop depicting Defendant taking her iPhone 14 Pro Max. Detective Sanchez testified that his investigation revealed Defendant sold the iPhone 14 Pro Max at an EcoATM located in a Walmart vestibule. Photographs from the EcoATM showed Defendant completing the transaction. As such, we find the State proved beyond a reasonable doubt that Defendant misappropriated or took a thing of value belonging to Ms. Cavalier without her consent, with the intent to permanently deprive her of the iPhone 14 Pro Max. See La. R.S. 14:67.

9.   Other circuits have also modified verdicts when the evidence admitted by the State did not support the conviction. See State v. Webster, 51,865 (La. App. 2 Cir. 4/11/18), 246 So.3d 779; State v. Phillips, 04-2005 (La. App. 4 Cir. 5/18/05), 905 So.2d 337.

10.   The jury instructions included the responsive verdict of “Guilty of theft valued at less than $1,000.00.” At the time of the instant offense, La. C.Cr.P. art. 814 provided for the verdict of “guilty of theft of property having a value of less than one thousand dollars.” See La. C.Cr.P. art. 814.

JOHNSON, J.