State v. Bowers - 42390 ( La. App. 2 Cir 09/19/07), 965 So. 2d 959

Rule:

It is not essential for the State to prove that the defendant's action was the sole cause of death; it is sufficient if her conduct hastened the termination of life, or contributed, mediately or immediately, to the death, in a degree sufficient to be clearly a contributing cause.

Facts:

On the afternoon of April 23, 2004, Ms. Bowers and an accomplice, Rhonda Mosely, drove to the Kroger on Mansfield Road in Shreveport. Ms. Bowers went into the store while Ms. Mosely waited in the car, which was parked in the middle of the fire lane in front of the main entrance. Ms. Bowers rolled a shopping cart around the store, loading it up chiefly with baby items as well as some T-shirts and a purse, and proceeded to the checkout area. However, the friendly cashier to whom she intended to pass a stolen check was not present, so Ms. Bowers pushed the cart to the pharmacy area and then sauntered out the door. Seeing this, store manager Rita Small and two other Kroger employees hurried down from the upstairs office and pursued Ms. Bowers as she walked out the door without paying for nearly $ 270 of merchandise. Ms. Small told Ms. Bowers that she would have to pay for the items she was taking; Ms. Bowers cursed at her and continued down the shallow ramp to the waiting Chrysler; Ms. Small was close behind. Ms. Bowers then told her she was not paying for the things, and pushed the cart back to Ms. Small; it still contained all the items she had taken from the store, as well as Mr. Monsour's checks and a Louisiana ID card belonging to yet another person, but crudely altered to look like Monsour's. Ms. Bowers then opened the driver's door of the Chrysler and started to get in as the car drove forward. Eyewitnesses testified that Ms. Bowers opened the car door, the other woman, Ms. Mosely, was either sitting behind the wheel or close to it, and Ms. Bowers had to shove her over to get into the driver's seat. Several witnesses saw a "struggle" or "confrontation" for the wheel, and the car started moving before Ms. Bowers had shut the door behind her. The victim, Daniel "Danny" Maguire, was a 74-year-old Kroger courtesy clerk. He was gathering shopping carts from the lot to return to the store, not involved in the confrontation with Ms. Bowers but unfortunately standing in the path of the Chrysler. The car ran over him, breaking both his legs. Maguire did not see the car coming until it was too late; he was hit almost immediately. The Chrysler first knocked him down, paused, and then ran over him fast with all four wheels. Several witnesses were unsure which woman was driving when all this happened; however, an assistant store manager, Scott Miles, and a customer in the parking lot, Jennifer Scott, told police that it was the woman who had just left the store. After running over Maguire, Ms. Bowers and Ms. Mosely zigzagged out the parking lot and sped away, but vigilant store patrons Byron and Tami Hazelwood followed them long enough to get the Chrysler's tag number. Police discovered that the license plate had been stolen from another vehicle, a Ford Tempo, but through that car's owner they developed Ms. Bowers as a suspect. After the incident, an ambulance carried Maguire to LSU Medical [Pg 4] Center in Shreveport. He had a badly broken left leg that required surgical repair as well as other contusions and abrasions. He died 42 hours after being admitted.

The state charged Ms. Bowers with manslaughter, in that she killed Maguire while she was engaged in the perpetration of middle-grade theft of goods, and in the perpetration of forgery, and with hit-and-run driving. The bill of information was filed August 5, 2004; just prior to a free and voluntary hearing on September 26, 2005, Ms. Bowers waived her right to a jury trial. Trial began on September 30, 2005, and was continued on six separate days, ending on February 28, 2006. The district court found Ms. Bowers guilty as charged of manslaughter and hit-and-run driving, and denied her timely motion for acquittal. The state then charged her as a fourth felony habitual offender. The court found Ms. Bowers a fourth felony offender and sentenced her to 47 years at hard labor, without benefits, to run concurrently with any other sentence. On the hit-and-run conviction, the court sentenced her to five years at hard labor. 

Issue:

Was there sufficient evidence to charge Ms. Bowers with manslaughter?

Answer:

Yes.

Conclusion:

As it pertains to this case,  manslaughter is defined as a homicide committed without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in La. R.S. 14:30 or 14:30.1, or of any intentional misdemeanor directly affecting the person. The state relied on middle grade theft of goods as the unenumerated felony. Contrary to Ms. Bowers's claim, the evidence is sufficient to prove an intent to permanently deprive Kroger of the merchandise. In State v. Victor, the court held, "A theft occurs when the thing is taken, although it may remain in the possession of the thief for only seconds." Quoting from preliminary drafts of the Louisiana Criminal Code, the court elaborated: “The concept of appropriation serves to differentiate completed property offenses from attempts. This is a difficult problem because all theft partakes of the character of attempt. The thief proposes to make the property his own more or less permanently; but he is nonetheless a thief if, shortly after he exerts his dominion over the property of another, he is prevented from making off with it.”

In State v. Ellis, the defendant contended she was guilty of only attempted felony theft because after she left the store and walked 10 feet into the mall with stolen clothing concealed in her purse, she reentered the store and threw the clothing beneath a rack where other clothing was displayed. The appellate court therein disagreed, holding that: “One who takes the property of another, intending at the time of the taking to permanently deprive the owner of that [Pg 10] property, is nonetheless guilty of the crime of theft though she later, becoming frightened or having a change of heart, decides to return it and does so.” As in Ellis, the only reason Ms. Bowers returned the merchandise was that her theft had been detected and she was being pursued by several Kroger employees. The court was entitled to find the completed offense of theft of goods. The state correctly notes that in State v. Behre and State v. Bridgewater, supra, the perpetrators had not left the stores when they were apprehended. In State v. Effit, supra, the appellate court deferred to the trial court's verdict of attempted theft despite our own finding that the defendant intended to permanently deprive. On the instant facts, the appellate court will again defer to the district court's finding of a completed offense.

The court was equally unpersuaded by Ms. Bowers's contention that the state failed to prove causation. However, precedent has fully confirmed and subscribed to the “substantial factor.” In this caseDr. Traylor, the forensic pathologist, confirmed that Maguire had advanced cardiovascular disease, but that without the trauma of being run over by a car, with the resultant injury, pain and major surgery to his femur, he had an 80-90% chance of surviving until the date of trial. There was no evidence to contradict Dr. Traylor's assessment. On this record, the district court was entitled to find Ms. Bowers's conduct a substantial factor in causing Maguire's death.