Supreme Court of Louisiana
APPEALS COURT
______________________________
)
SAM KANT,
)
APPELLANT,
)
Docket No.2012-L-2234
)
vs.
)
)
STATE OF LOUISIANA,
)
)
APPELLEE.
)
BRIEF of the APPELLANT, Sam Kant
SEPTEMBER 15, 2013
Appeal from
Parish of Lafayette
YOUR NAME AND ADDRESS
Phone Number
Proof of Service
The undersigned hereby certifies that a true copy of this Proof Brief was served
on each of the attorneys of record of all parties to this cause by mailing copies thereof
to the following:
State’s Attorney
Lafayette Parish Courthouse
Lafayette, LA
ATTORNEY FOR RESPONDENT
Certificate of Filing
I hereby certify that the attached Appellant’s Brief was filed on the 15th day of
September, 2013, by depositing in the mail two (2) copies of the document, addressed
to the Clerk of the Louisiana Supreme Court, Baton Rouge, LA.
__________________________
Your name and address
FOR APPELLANT
TABLE OF CONTENTS
Proof of Service…………………………………………………………………………
Certificate of Filing……………………………………………………………………
Table of Contents………………………………………………………………………
Table of Authorities………………………………………………………………….
Statement of the
Issues…………………………………………………………………………………….
Statement of the
Case……………………………………………………………………………………..
Argument………………………………………………………………………………
Conclusion……………………………………………………………………………….
Cost Certificate………………………………………………………………………….
TABLE OF AUTHORITIES
Case
Pages
Johnson v Louisiana, 406 U.S 360, 92 S.Ct.1629
U.S. Supreme Court in Jackson v Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979).
Statute
2006 Louisiana Laws - RS 14:67 — Theft
SUBPART C. BY MISAPPROPRIATION WITHOUT VIOLENCE
Louisiana Code Section 67…………………………………………………………
Other Authorities
Blankenburg, Erhard. "The Selectivity of Legal Sanctions: An Empirical
Investigation of Shoplifting." Law and Society Review 11 (1976)
Allison, Stuart F. H., and A. M. Schuck, and K. M. Lersch. "Exploring the crime
of identity theft: Prevalence, clearance rates, and victim/offender
characteristics." Journal of Criminal Justice. (Jan-Feb 2005) 33(1): 19-29.
STATEMENT OF THE ISSUES
I. DID THE TRIAL COURT ERR IN FINDING THAT APPELLANT WAS
GUILTY OF THE CRIME OF SHOPLIFTING BEYOND A REASONABLE
DOUBT?
STATEMENT OF THE CASE
Appellant, Sam Kant was charged with two counts of Shoplifting, in
violation of the Louisiana Criminal Code Section 67 in the original police
complaint and information filed by the Parish of Lafayette. Appellant hired
Attorney Jean Smith of Lafayette, Louisiana, to represent him in this criminal
case. The case went to trial. On September 3, 2013, Kant was found guilty of
shoplifting, two separate counts. At the sentencing on September 6, 2013,
Kant was sentenced to two consecutive jail terms on each of the charges, which
totaled 10 days. Notice of Appeal was filed on September 9, 2013.
ARGUMENT
I. THE TRIAL COURT COMMITTED AN ERROR IN FINDING THAT
APPELLANT WAS GUILTY OF THE CRIME OF SHOPLIFTING UNDER THE
LOUISIANA
To determine that an individual committed theft, the State must prove
beyond a reasonable doubt that a theft, under one of the provisions of the
definitions in the Louisiana Criminal Code was committed by that individual.
When considering the sufficiency of the evidence, an appellate court
must follow the standard set by the U.S. Supreme Court in Jackson v Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This opinion said that
the appellate court shall look at the direct and circumstantial evidence, in the
light most favorable to the state, and determine whether a rational fact finder
could find that the elements of the crime met the “beyond a reasonable doubt”
standard. See Johnson v Louisiana, 406 U.S 360, 92 S.Ct.1629. This
standard makes the trier of fact weight the evidence, sort out any testimony,
and draw a reasonable inference to get to the ultimate facts. While this case
upheld a conviction, it clearly set out the parameters for the necessary
evidence and the standards the lower courts must follow.
There is insufficient evidence to convict Appellant of shoplifting.
A
court should only find a suspect guilty if supported by evidence beyond a
reasonable doubt. Substantial evidence simply is not present in the Kant
matter. He did not commit the elements of the crime according to the
Louisiana criminal code, therefore, a rational finder of fact could determine the
defendant’s guilt beyond a reasonable doubt. The definition of theft in its
entirety according to the Louisiana Code follows:
Louisiana Shoplifting Laws
§67- Theft of goods
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.
B.
(1) Whoever commits the crime of theft when the misappropriation or taking
amounts to a value of five hundred dollars or more shall be imprisoned, with or
without hard labor, for not more than ten years, or may be fined not more than
three thousand dollars, or both.
(2) When the misappropriation or taking amounts to a value of three hundred
dollars or more, but less than a value of five hundred dollars, the offender shall
be imprisoned, with or without hard labor, for not more than two years, or may
be fined not more than two thousand dollars, or both.
(3) When the misappropriation or taking amounts to less than a value of three
hundred dollars, the offender shall be imprisoned for not more than six
months, or may be fined not more than one thousand dollars, or both. If the
offender in such cases has been convicted of theft two or more times
previously, upon any subsequent conviction he shall be imprisoned, with or
without hard labor, for not more than two years, or may be fined not more than
two thousand dollars, or both.
C. When there has been a misappropriation or taking by a number of distinct
acts of the offender, the aggregate of the amount of the misappropriations or
taking shall determine the grade of the offense.
Shoplifting within Louisiana is considered as a crime which has serious
penalties, inclusive of potential fines, as well as, jail time. On top of facing
criminal penalties, the law allows merchants to sue shoplifters within a civil
court so as to recover damages.
Concerning Mr. Kant’s case, there are various legal issues which can be raised
within the appeal court. In Allison, Stuart F. H., and A. M. Schuck, and K. M.
Lersch. "Exploring the crime of identity theft: Prevalence, clearance rates, and
victim/offender characteristics." Journal of Criminal Justice. (Jan-Feb 2005)
33(1): 19-29 which can be cited in the defense of Mr. Kant’s actions. It is
commonly a “rule” followed by most jurisdictions that shoplifting should
include leaving the premises with the merchandise, or at the very least, a
straight-forward concealment or other type of deception. Given that the
accused had not left the premises, evidence had to be produced that he had
infringed the owner’s rights. The Louisiana Code 1950, § 18.2-95 specifies that
as long as the accused acted in an inconsistent manner with normal actions of
desiring to purchase the goods, he stands a chance of being prosecuted.
Shoplifting within Louisiana is classified as the “theft of goods’; that occurs
once an individual takes any valuable thing from a merchant prior to being
authorized to take it, with the objective of robbing the merchant. Intent to rob
the merchant is usually presumed once an individual gets involved in activities
like hiding items on themselves within a store, shifting goods from a certain
container to the other or cause damage to goods such that they become
unsalable. Kant did not hide his item in the cart he was pushing, nor did he
cause damage or shift goods from one container to another to conceal the
merchandise.
Appellant neither had the intention, nor did he commit any act that would in
any way show that he had the intent to fraudulently deprive the store of the
beans. Sam Kant, sent by his wife, went to the Bilmart Store on Wednesday,
August 28, 2013, and bought a case of six 4 oz. cans of Hoover’s Baked Beans
with Bacon. When he returned home, his wife had him return to the store to
get a different brand, Handell’s Beans. The next morning, Kant returned to the
Bilmart store with the intention of a quick exchange of the case of beans since
his wife was going to an event and needed the Handell’s beans.
When he got to the store, Kant was in a hurry and saw that the line for returns
was very long due to a local food drive which was taking place at that very
store. Kant made a quick decision not to try to wait in line to do the exchange,
but rather he put the Handell’s beans in his cart, along with the formerly
purchased case of Hoover’s beans. When he got back to the exchange line, it
had not shortened and he knew it would take a long time to make the
exchange. Realizing he would be unable to deliver the correct beans to his wife
if he waited, and also that both cases of beans were the exact same price, Kant
placed the case of Hoover’s beans inside a cart loaded with store merchandise,
kept the Handell’s case and pushed his cart towards the door. As he neared the
exit, Kant was detained by store security, and police were called to the store.
The cart into which Sam had placed the Hoover’s Beans contained food drive
donated items rather than the store’s regular merchandise. Sam Kant was then
arrested for shoplifting .
The application of the law of theft to “shoplifting” requires proof of
intentional taking as defined in the Louisiana law. In this case, there was no
proof that Kant tried to deprive anyone of money, but rather made the
exchange of beans himself rather than waiting in line. He was detained inside
the store before he left with anything. No intent was proven. Store personnel
do not always have to wait, but should wait until the subject has left the store
without paying for the goods, or is concealment of the goods or failure to pay at
the place where the goods would normally be paid for in order to sufficiently
have the evidence to detain someone on a “shoplifting” charge. The problems of
proof are compounded by the risks to merchants who act on unfounded
suspicion. (Blankenburg) The Bilmart workers detained Kant prior to him
paying, exchanging or explaining what happened. Kant cannot be found guilty,
because he had neither left the store, nor had he attempted to conceal
anything. He was near the door, with a car and a case of beans.
CONCLUSION
The Supreme Court should vacate the original conviction and sentence and
remand this case to the District Court of Lafayette Parish either for a new trial
or in the alternative to order the District Court to dismiss the charges with
prejudice.
Respectfully submitted,
Your name and address
FOR APPELLANT
ATTORNEY’S COST CERTIFICATE
I, hereby certify the actual cost of copying the necessary documents of the
Appellant’s Brief was $ 25.00.
Your name and address here
FOR APPELLANT