State v. Frost
99 So. 3d 1075, 2012 WL 3860032, 2011 La.App. 4 Cir. 1658 (2012)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Louisiana's theft statute (La. R.S. 14:67) does not require the intent to permanently deprive an owner of property to be contemporaneous with the initial taking of possession; subsequent misappropriation or conversion can establish the requisite intent for theft, reflecting the statute's incorporation of embezzlement.
Facts:
- In February 2008, Dayman Frost, doing business as Sunrise Builders of Louisiana LLC, entered into a contract with Elaine Robertson to rebuild her home, which had been damaged by Hurricane Katrina, for $49,200.
- Robertson verbally agreed to a different payment schedule than written and subsequently paid Frost $15,000 in February, and additional $5,000 payments in March and April 2008.
- From February 2008 to June 2009, Frost performed very little work on Robertson's home, despite receiving payments, and she continuously attempted to contact him regarding the lack of work.
- Robertson observed rainwater pouring into her home due to the lack of a roof and witnessed Frost and his workers performing construction on his church instead of her property.
- In October 2008, Frost requested more money for an addition before installing a roof, leading Robertson to pay him $1,500 for a second contract and an additional $800 to remove debris from her property.
- Frost was hospitalized due to a heart attack on November 15, 2008, and Robertson learned of it through his wife, but never heard back from him after sending cards.
- No further work was performed on Robertson's property after the October 2008 payments, a roof was never installed, and the debris was not removed by Frost, forcing Robertson to pay another company $1,000 to remove it.
- In April 2009, Robertson hired another contractor, and in June 2009, she sent a letter to Frost expressing dissatisfaction and asking him to return her money.
Procedural Posture:
- Dayman Frost was charged with theft, a felony, a violation of La. R.S. 14:67 A.
- A jury in the trial court found Dayman Frost guilty of theft.
- The trial court sentenced Frost to ten years at hard labor, but suspended the sentence, placing him on five years active probation under the special condition that he make restitution in the amount of $27,300.
- Dayman Frost (appellant) appealed his conviction to the Louisiana Court of Appeal, Fourth Circuit, arguing that the evidence at trial was insufficient to prove his guilt as to each and every element of the offense of theft, specifically regarding the timing of the intent to permanently deprive the victim of her money.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Louisiana theft statute (La. R.S. 14:67) require that the intent to permanently deprive an owner of property must exist at the time the defendant initially takes possession of the property, or can such intent be formed later, after the initial taking?
Opinions:
Majority - Paul A. Bonin
No, the Louisiana theft statute (La. R.S. 14:67) does not require that the intent to permanently deprive an owner of property must be contemporaneous with the initial taking of possession. The court affirmed Mr. Frost's conviction, stating that La. R.S. 14:67 is not limited exclusively to situations where a defendant has the intent to defraud at the time of taking possession, but also includes a defendant’s misappropriation by fraudulent conduct of what is already in his possession. The statute combines the common law crime of larceny with the offense of embezzlement, where the original taking is lawful, and the gravamen of the offense is the subsequent felonious conversion of the property with the intent to convert it to the accused’s own use. Citing State v. Hayes, the court emphasized that the intent to deprive permanently therefore need not coincide with the actual taking. The court distinguished this case from previous rulings relied upon by Mr. Frost, such as State v. Saucier, State v. Robinson, and State v. Hoffer, by clarifying that certain statements about 'any effort at all' negating intent were dicta and not holdings, or that those cases focused on the state's failure to exclude reasonable hypotheses of innocence rather than the timing of intent. Mr. Frost’s actions of avoiding contact with Ms. Robertson, ceasing work on her house, and not repaying the money provide sufficient evidence for a rational fact-finder to infer an intent to permanently deprive Ms. Robertson of her money, satisfying the Jackson v. Virginia standard for sufficiency of evidence.
Analysis:
This case significantly clarifies the interpretation of Louisiana's theft statute (La. R.S. 14:67), particularly concerning the timing of criminal intent. By affirming that intent can be formed after the initial lawful possession of funds, the decision solidifies the statute's broad application, effectively merging larceny and embezzlement principles. This ruling has substantial implications for contractor fraud cases, allowing prosecutors to establish theft based on a defendant's subsequent actions and failures to fulfill contractual obligations, rather than solely on initial misrepresentations. It reinforces that courts will uphold jury findings on intent when supported by a reasonable interpretation of the evidence, giving deference to the fact-finder's role.
