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Supreme Court of Louisiana APPEALS COURT ______________________________) SAM KANT,)APPELLANT,)Docket No.2012-L-2234) vs.)) STATE OF LOUISIANA, ) )APPELLEE.) BRIEF of the APPELLANT, Sam KantSEPTEMBER 15, 2013 Appeal fromParish of Lafayette YOUR NAME AND ADDRESS Phone NumberProof of ServiceThe 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 AttorneyLafayette Parish CourthouseLafayette, LAATTORNEY FOR RESPONDENTCertificate of FilingI 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 addressFOR APPELLANT TABLE OF CONTENTSProof 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 AUTHORITIESCasePagesJohnson v Louisiana, 406 U.S 360, 92 S.Ct.1629U.S. Supreme Court in Jackson v Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Statute2006 Louisiana Laws - RS 14:67 — TheftSUBPART C. ?BY MISAPPROPRIATION WITHOUT VIOLENCELouisiana Code Section 67………………………………………………………… Other AuthoritiesBlankenburg, 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 ISSUESI. DID THE TRIAL COURT ERR IN FINDING THAT APPELLANT WAS GUILTY OF THE CRIME OF SHOPLIFTING BEYOND A REASONABLE DOUBT?STATEMENT OF THE CASEAppellant, 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. ARGUMENTI. 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 goodsA. 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 addressFOR APPELLANTATTORNEY’S COST CERTIFICATEI, hereby certify the actual cost of copying the necessary documents of the Appellant’s Brief was $ 25.00. Your name and address hereFOR APPELLANT ................
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