STATE OF LOUISIANA v. MITCHELL DALE HIGGINS (2017)

Defendant, Mitchell Dale Higgins, was charged by amended bill of information with theft of goods, $500.00 or more but less than $1500.00, a violation of La. R.S. 14:67.10(B)(2)¹ (count one); unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4 (count two); aggravated assault with a motor vehicle upon a peace officer, a violation of La. R.S. 14:37.6 (count three); and simple criminal damage to property under $500.00, a violation of La. R.S. 14:56(B)(1) (count four). Defendant pled not guilty. Prior to trial, the state nol-prossed the charge on count two. Following a trial, defendant was found guilty as charged on counts one, three, and four.² Defendant filed motions for new trial and post-verdict judgment of acquittal, both of which the trial court denied. On count one, the trial court sentenced defendant to two years at hard labor; on count three, the trial court sentenced defendant to four years at hard labor; on count four, the trial court sentenced defendant to ninety days in the parish jail. The trial court ordered all sentences to run concurrently. Defendant now appeals his convictions on counts one and three, alleging two assignments of error. For the following reasons, we affirm the convictions and sentences.

FACTS

On the afternoon of July 1, 2016, Theron Jolly was working as an asset protection associate at Walmart on Northshore Boulevard in Slidell, Louisiana. As Jolly walked down the main aisle of the store, he noticed a male and female acting suspiciously in the store's electronics area. Jolly watched as the male grabbed two DVD box sets and walked with the female to the store's toy department. In the toy department, Jolly witnessed the male conceal the DVD box sets in his pockets while the female removed several Lego sets from a shelf and placed them inside her purse. Jolly followed the male and female as they walked towards the store's exit. After the male and female passed all points of sale, Jolly identified himself and attempted to apprehend them. The male and female eventually got into a blue car, which drove away. Jolly, who was on the phone with the Slidell Police Department as he followed the male and female, provided the police with a description of the suspect vehicle.

Slidell Police Officer Darrell Marcev, a motorcycle patrolman, was in the area and received the call for assistance. Officer Marcev witnessed the suspect vehicle make a quick turn out of the Walmart parking lot and begin to drive swiftly down the service road. With his lights and siren activated, Officer Marcev began pursuit of the vehicle. Officer Marcev followed the vehicle for approximately one-tenth of a mile. During this brief pursuit, Officer Marcev watched as a subject in the back of the suspect vehicle continually ducked down in the back seat. The suspect vehicle eventually turned in to the parking lot of a nearby Toys-R-Us store. Officer Marcev followed behind the vehicle on his motorcycle. As he was behind the suspect vehicle, Officer Marcev watched as the car swung wide to the right before coming back to the left in a U-turn action. The vehicle's turn was ultimately impeded by a parked vehicle and Officer Marcev's motorcycle. Concerned that the occupants of the vehicle might be armed, Officer Marcev drew his service weapon with his right hand while he maintained throttle control of his motorcycle with his left. The vehicle briefly stopped as Officer Marcev held the occupants at gunpoint. After stopping for a short time, the driver of the vehicle (identified at trial as defendant) accelerated forward, causing the vehicle to strike Officer Marcev's motorcycle. Officer Marcev successfully abandoned his motorcycle without injury, but fell into the driver's side of the vehicle, striking it with his service weapon. After the collision, Officer Marcev held the occupants of the vehicle at gunpoint until backup arrived.

Following the collision and apprehension of the suspects, Jolly assisted the officers in determining the value of the stolen merchandise. In addition to the two DVD box sets and three Lego sets Jolly witnessed being taken, the responding officers also recovered three additional DVD box sets, several single DVDs, multiple pairs of pants, and a Roku device. Jolly returned to his store with these items to determine their combined value. A scan of the items revealed a total value of $843.33.

Defendant testified at trial and stated that he had driven the male and female (identified as John Barrios and Patricia Bergeron) from Thibodaux to Slidell so that they could meet Barrios's mother, who was giving them money to purchase school clothes. Defendant explained that the collision occurred not because he was attempting to injure or evade the officer, but because he was trying to pull into a parking spot. He indicated that Officer Marcev was at fault for striking his vehicle as he turned left into the spot. Barrios testified at trial as a defense witness. Barrios stated that he lied to defendant about needing to go to Walmart to buy school clothes when his true intention was to shoplift. Barrios indicated that he asked defendant to flee when Officer Marcev first approached their vehicle, but defendant declined and elected to pull into the Toys-R-Us lot. Barrios testified that Officer Marcev caused his motorcycle to hit defendant's vehicle.

INSUFFICIENT EVIDENCE

In his first assignment of error, defendant argues that the evidence presented at trial was insufficient to support his convictions on counts one and three. Regarding the conviction for theft of goods valued between $500.00 and $1500.00, defendant contends that the state failed to prove his intent to deprive. Alternatively, he avers that the state proved only the misdemeanor grade of this offense. Concerning the conviction for aggravated assault on a peace officer with a motor vehicle, defendant argues that the state failed to prove the intent element of this offense.

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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 beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.

Theft of Goods ($500.00-$1500.00)

At the pertinent time herein ³ , Louisiana Revised Statutes 14:67.10 provided, in pertinent part:

A. Theft of goods is the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking is essential and may be inferred when a person:

(1) Intentionally conceals, on his person or otherwise, goods held for sale.

(2) Alters or transfers any price marking reflecting the actual retail price of the goods.

(3) Transfers goods from one container or package to another or places goods in any container, package, or wrapping in a manner to avoid detection.

(4) Willfully causes the cash register or other sales recording device to reflect less than the actual retail price of the goods.

(5) Removes any price marking with the intent to deceive the merchant as to the actual retail price of the goods.

(6) Damages or consumes goods or property so as to render it unmerchantable.

Thus, theft of goods consists of three elements: (a) the “misappropriation or taking of anything of value which is held for sale by a merchant,” (b) either “without the consent of the merchant ․ or by means of fraudulent conduct,” and (c) with “intent to deprive the merchant permanently of ․ the subject of the misappropriation or taking.” State v. Bean, 2004-1527 (La. App. 1st Cir. 3/24/05), 899 So.2d 702, 707, writ granted on other grounds, 2005-1106 (La. 3/8/06), 925 So.2d 489, writ denied, 2005-1106 (La. 11/3/06), 940 So.2d 652. Theft is a specific intent crime. See State v. Albert, 96-1991 (La. App. 1st Cir. 6/20/97), 697 So.2d 1355, 1362. Specific intent is 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). Such state of mind can be formed in an instant. State v. Cousan, 94-2503 (La. 11/25/96), 684 So.2d 382, 390. Specific intent need not be proven as a fact but may be inferred from the circumstances of the transaction and the actions of defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1st Cir. 1986).

The parties to crimes are classified as principals and accessories after the fact. La. R.S. 14:23. Principals are 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. La. R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may be convicted as a principal only for those crimes for which he personally has the requisite mental state. See State v. Pierre, 93-0893 (La. 2/3/94), 631 So.2d 427, 428 (per curiam). The state may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. State v. Arnold, 2007-0362 (La. App. 1st Cir. 9/19/07), 970 So.2d 1067, 1072, writ denied, 2007-2088 (La. 3/7/08), 977 So.2d 904. Thus, a general principle of accessorial liability is that when two or more persons embark on a concerted course of action, each person becomes responsible for not only his own acts but also for the acts of the other. State v. Smith, 2007-2028 (La. 10/20/09), 23 So.3d 291, 296 (per curiam).

In his brief, defendant raises two primary issues concerning his conviction for theft of goods valued at a total of $500.00 or more but less than $1500.00. He first argues that the state did not prove he had the intent to permanently deprive Walmart of the stolen merchandise. Instead, defendant argues that he was totally unaware of his passengers' intent to shoplift. In the alternative, defendant contends that the state failed to demonstrate that he participated in the theft of at least $500.00 worth of merchandise. Defendant notes that the valuation of the merchandise Jolly actually witnessed being concealed was only approximately $130.00, making any offense a misdemeanor.

Jolly's uncontroverted testimony at trial indicates that he began to surveil Barrios and Bergeron as they stood in the Slidell Walmart's electronics department. In the time that Jolly watched them, Barrios and Bergeron concealed two DVD box sets and three Lego sets, utilizing the pockets of Barrios's shorts and Bergeron's “big purse” to do so. After concealing these items, Barrios and Bergeron exited the store without paying and entered the blue vehicle driven by defendant.

Jolly testified that when he arrived at the Toys-R-Us to assist the arresting officers, he noticed “a lot of merchandise,” including what he saw Barrios and Bergeron take. According to Jolly, this merchandise was located throughout the car, in both the front and back seats. Jolly did not see any receipts or Walmart shopping bags in the vehicle. Jolly testified that he scanned the merchandise recovered from the vehicle and determined it to be worth $843.33. He explained that if any of the merchandise had not been sold by Walmart, the system would not return a value for the item if scanned and would instead indicate “item not found.”

Barrios testified at trial as a defense witness. Barrios explained that he and Bergeron lied to defendant about needing a ride to Walmart to buy school clothing. Barrios stated that defendant had driven him and Bergeron from Houma to Slidell, making stops at several other stores on the way. Barrios claimed that the only items that were stolen from the Slidell Walmart were the two DVD box sets and three Lego sets that Jolly saw them conceal. He testified that all of the other recovered items were from the other stores outside of Slidell that they stopped at that day. At the time of trial Barrios had already pled guilty to theft of goods valued between $500.00 and $1500.00 for his role in the shoplifting incident.

Defendant testified on his own behalf. Defendant echoed Barrios's claim that he had been told Barrios and Bergeron needed a ride to the Slidell Walmart to purchase school clothes. Contrary to Barrios's testimony, defendant indicated that he made only two stops on the day of the incident. Defendant stated that the first stop was at a Walmart gas station, and he explained that no one went into that particular Walmart store. The second stop was at the Walmart where the at-issue shoplifting incident occurred. Defendant further testified that some of the recovered items were found in a black bag in the trunk of the car, rather than strewn about the passenger compartment. When defense counsel asked defendant whether he believed Barrios and Bergeron were going into the store to steal, he replied, “I had an idea.”

Based on the foregoing, the jury could have reasonably concluded that defendant had the specific intent to commit a theft at the Slidell Walmart. Viewed in the light most favorable to the state, the evidence establishes that defendant drove Barrios and Bergeron to a single Walmart store that they entered, that Walmart merchandise totaling $843.33 was recovered from the passenger compartment of the vehicle, and that defendant acted or attempted to act as a getaway driver.

When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). In the case at bar, the jury rationally rejected defendant's two hypotheses of innocence: 1) that he was unaware of Barrios's and Bergeron's intentions to shoplift, and 2) that the only merchandise stolen from Walmart was that which Jolly actually saw Barrios and Bergeron conceal, totaling approximately $130.00. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The jury could have rationally concluded that Barrios and Bergeron concealed the other recovered items prior to drawing Jolly's attention.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). While defendant attempted to explain the presence of the other merchandise in the vehicle by offering testimony that it came from stores outside the court's jurisdiction or that it otherwise belonged to Barrios and Bergeron, the jury apparently rejected these explanations and found the defendant guilty. We cannot say that these conclusions are unreasonable. In accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder, a court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law. See State v. Mire, 2014-2295 (La. 1/27/16), ____ So.3d _____, _____, 2016 WL 314814 (per curiam).

We note as well that a finding of purposeful misrepresentation reasonably raises the inference of a “guilty mind,” as in the case of material misrepresentation of facts by the defendant following an offense. Lying has been recognized as indicative of an awareness of wrongdoing. Captville, 448 So.2d at 680 n.4. Based on the discrepancy between Barrios's and defendant's testimony about the number of stores stopped at, the jury could have concluded that one (or both) men were lying, indicating guilt. Further, flight and attempt to avoid apprehension indicate consciousness of guilt, and therefore, are circumstances from which a juror may infer guilt. See State v. Fuller, 418 So.2d 591, 593 (La. 1982). The evidence discussed below regarding the conviction for aggravated assault with a motor vehicle upon a peace officer might have caused the jury to conclude that defendant was attempting to avoid apprehension, also leading to an inference of guilt.

After a thorough review of the record, we find that the evidence supports the jury's guilty verdict on count one. We are convinced that viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that defendant was guilty as a principal of theft of goods valued between $500.00 and $1,500.00. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 422 (per curiam); see also Mire, 2016 WL 314814.

This portion of defendant's first assignment of error is without merit.

Aggravated Assault with a Motor Vehicle Upon a Peace Officer

Assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. La. R.S. 14:36. A battery is the intentional use of force or violence upon the person of another. See La. R.S. 14:33. When predicated upon the “reasonable apprehension” definition of assault, the elements of assault are: (1) the intent-to-scare mental element (general intent), (2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm, and (3) the resulting apprehension on the part of the victim. Circumstantial evidence of a victim's state of mind can be used to prove the element of reasonable apprehension. See State v. Gardner, 2016-0192 (La. App. 1st Cir. 9/19/16), 204 So.3d 265, 267-68. Aggravated assault with a motor vehicle upon a peace officer is an assault committed with a motor vehicle upon a peace officer acting in the course and scope of his duties. La. R.S. 14:37.6(A).

In his brief, defendant offers no dispute that a motor vehicle was involved or that Officer Marcev was a peace officer acting in the course and scope of his duties. Rather, he argues simply that the collision between his vehicle and Officer Marcev's motorcycle was an accident predicated by the “chaos” of the circumstances.

Officer Marcev described that he began pursuit of the suspect vehicle on the service road in front of the Walmart and Toys-R-Us stores. This pursuit lasted only about one-tenth of a mile until defendant steered his vehicle into the Toys-R-Us parking lot. Officer Marcev described that approximately 100 yards into the parking lot, defendant swung his vehicle wide to the right and then back toward the left in a manner like an attempted U-turn. Defendant's path was eventually blocked by some combination of a concrete divider, a parked vehicle, and Officer Marcev's motorcycle. At this point, Officer Marcev had drawn his service weapon and pointed it at the occupants of the vehicle. The vehicle was partially facing Officer Marcev's motorcycle. After the vehicle stopped briefly, it accelerated forward and struck Officer Marcev's motorcycle, causing him to fall into the side of the vehicle. Officer Marcev indicated that the vehicle only stopped after his motorcycle was thrown to the ground.

Defendant testified at trial that the collision occurred when he was attempting to pull into a parking spot and Officer Marcev struck his vehicle with the motorcycle. He claimed that he was not attempting to flee or squeeze past Officer Marcev. Barrios testified that Officer Marcev pulled his service weapon and used it to hit the vehicle's window prior to the collision. Barrios indicated that defendant declined his requests to flee from Officer Marcev.

After a thorough review of the record, we find that the evidence supports the jury's guilty verdict on count three. Viewed in the light most favorable to the state, the evidence indicates that defendant was being pursued by Officer Marcev with the guilty mind that he acted as a principal to the crime of theft of goods. While defendant claimed he was simply attempting to pull into a parking spot, the jury could have rationally believed Officer Marcev's testimony that defendant was attempting to make a U-turn in the parking lot. Having made a partial U-turn and being held at gunpoint, defendant then accelerated his vehicle in the direction of Officer Marcev's motorcycle. The jury could have rationally concluded that, in doing so, defendant was either attempting to commit a battery against Officer Marcev, or that he intended to scare Officer Marcev out of the way to elude apprehension. In the latter case, his action in accelerating forward was conduct of the sort to arouse a reasonable apprehension of bodily harm, and Officer Marcev testified to his resulting apprehension of being hit by the vehicle.

We are convinced that viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that defendant was guilty of aggravated assault with a motor vehicle upon a peace officer. See Calloway, 1 So.3d at 422; see also Mire, 2016 WL 314814.

This portion of defendant's first assignment of error is without merit.

USE OF EXPUNGED CONVICTION AS IMPEACHMENT

In his second and final assignment of error, defendant contends that the trial court erred in not allowing defense counsel to attack the credibility of Theron Jolly using an expunged conviction.

At trial, when the state tendered Jolly for cross-examination, it informed the trial court that Jolly had an expunged misdemeanor criminal conviction. The state requested that the trial court rule this conviction inadmissible for impeachment purposes because of the fact it had been expunged. Defense counsel objected. The trial court asked whether Jolly's credibility was at issue, and defense counsel argued that a witness's credibility is at issue any time he takes the stand. Ultimately, the trial court accepted the state's argument and disallowed cross-examination regarding this expunged conviction.

Louisiana Code of Evidence article 609.1 governs the attacks to the credibility of a witness by evidence of conviction of a crime in criminal cases. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to a few exceptions. See La. C.E. art. 609.1(A). Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal. La. C.E. art. 609.1(B). When a pardon or annulment, based upon a finding of innocence, has been granted, evidence of that conviction is not admissible to attack the credibility of the witness. La. C.E. art. 609.1(E).

In ruling that Jolly's expunged conviction should not be admissible, the trial court cited La. C.Cr.P. art. 894(B)(2), which states in pertinent part:

The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a prior offense and provide the basis for subsequent prosecution of the party as a multiple offender.

Because defendant did not proffer evidence of the prior expunged conviction, it is unclear from the record whether the “conviction” was dismissed pursuant to Article 894; expunged pursuant to La. C.Cr.P. art. 971, et seq.; or both.

Louisiana Code of Criminal Procedure article 973 sets forth the effect of an expunged record of arrest or conviction. As defendant points out, La. C.Cr.P. art. 973(E) states that nothing in this article shall be construed to limit or impair the authority of a law enforcement official to use an expunged record of any arrests or convictions by a law enforcement agency, criminal justice agency, or prosecutor, including its use as a predicate offense, for the purposes of the Habitual Offender Law, or as otherwise authorized by law. Defendant contends that the “otherwise authorized by law” language includes impeachment purposes under La. C.E. art. 609.1.

We note first that La. C.E. art. 609.1 does not, by its plain language, restrict the use of an expunged conviction to attack the credibility of a witness. Furthermore, unlike Rule 609 in the Federal Rules of Evidence, the language of Article 609.1 does not prohibit the use of a conviction that has been the subject of a procedure based on a finding that the person has been rehabilitated.⁴ Similarly, the expungement articles of the Code of Criminal Procedure do not expressly restrict the use of expunged convictions for impeachment purposes.

Nonetheless, we need not make a determination in this case regarding the use of expunged convictions for impeachment purposes. Even assuming that the trial court did err in restricting defendant's ability to cross-examine Jolly regarding his expunged misdemeanor conviction, this error does not require reversal.

Confrontation errors are subject to a harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court, assuming that the damaging potential of cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438. Factors to be considered by the reviewing court include “the importance of the witnesses] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; State v. Wille, 559 So.2d 1321, 1332 (La. 1990). The verdict may stand if the reviewing court determines that the guilty verdict rendered in the particular trial is surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 817, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

While defense counsel argued at trial that every witness's credibility is at issue upon taking the stand, he did not then (nor does he currently) point to any particular facet of Jolly's testimony that was not credible. Jolly admitted that he only witnessed Barrios and Bergeron conceal certain items, that it was possible other items he scanned actually came from other stores, and that he could not identify defendant as one of the individuals inside the store. Barrios confirmed Jolly's testimony to the extent he admitted to stealing certain items from the Slidell Walmart. In short, none of Jolly's testimony is materially disputed. Therefore, there was no serious issue concerning Jolly's credibility, and the trial court's failure to allow defense counsel to cross-examine Jolly about his expunged conviction - if assumed to be erroneous - was harmless beyond a reasonable doubt.

This assignment of error is without merit.

For the foregoing reasons, the defendant's convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

While I may have found differently as to the value of the items stolen, given that we are precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases, I concur in the result reached by the majority. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83.

FOOTNOTES

1.   All references to La. R.S. 14:67 are prior to its revision by 2014 La. Acts, No. 255 § 1, as the law in effect at the time of the commission of the offense is determinative of the penalty which the accused must suffer. State v. Sugasti, 2001-3407 (La. 6/21/02) 820 So.2d 518, 520.

2.   On counts one and three, defendant was tried before a jury; count four was tried as a bench trial. See La. C.Cr.P. art. 779(B).

3.   See footnote 1.

4.   We make no finding as to whether an expunged arrest or conviction is based upon a finding of rehabilitation, but we note one of the legislature's intentions in enacting La. C.Cr.P. art. 971, et seq., is to “provide opportunities to break the cycle of criminal recidivism ․ and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” See La. C.Cr.P. art. 971(6).

WELCH, J.

McClendon, J, concurs and assigns reasons.