NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2008 KA 0169

STATE OF LOUISIANA

VERSUS

TALMAGE J GALATAS

Judgment Rendered June 6 2008

Appealed from the

Twenty Second Judicial District Courtin and for the Parish ofSt Tammany State of Louisiana

Trial Court Number 412783

Honorable William J Knight Judge Presiding

Walter P Reed

Covington LAAttorneys for AppelleeState of Louisiana

Kathryn W LandryBaton Rouge LA

Jerry L Fontenot

Covington LAAttorney for Defendant AppellantAnthony Johnson

BEFORE WHIPPLE GUIDRY AND HUGHES JJ

9 CNlC A

WHIPPLE J

Defendant Talmage Galatas was charged by bill of information with

illegal possession of stolen things valued at over 500 00 a violation of

LSA RS 14 69 Defendant entered a plea ofnot guilty and was tried before

a jury The jury determined defendant was guilty

The trial court sentenced defendant to serve a period of five years at

hard labor but suspended the sentence and placed defendant on active

supervised probation for five years with special conditions

Defendant appeals citing the following assignments of error

1 The evidence was insufficient to support the conviction of

possession of stolen property valued at more than 500 00

2 The trial court erred in allowing testimony relative to the

apparent theft of numerous items which were not found inthe possession of defendant and therefore not relevant to

the instant offense

We affirm defendant s conviction conditionally affirm his sentence

vacate a condition of his probation and remand the matter to the district

court

FACTS

In the summer of 2005 Timothy Galatas and Guilio Giunta purchased

a home located on Tag Along Road in Lacombe Louisiana In late August

as Hurricane Katrina approached the coastline they evacuated to Jackson

Mississippi Timothy s parents had been taken to his sister s home in

Jacksonville Florida by his brother the defendant herein Soon after the

hurricane Timothy s mother was hospitalized because she suffered a stroke

After learning of his mother s hospitalization Timothy and Giunta traveled

to Jacksonville to assist Timothy s parents

Timothy worked as an operating room nurse and had previously

performed temporary contracts away from Louisiana commonly referred to

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as travel nursing In the aftermath of Hurricane Katrina Timothy signed a

temporary employment contract with a hospital in the Jacksonville area

Timothy testified that he intended to return to his home in Lacombe

following completion of his three month contract and have his parents live

with him

While in Jacksonville Timothy agreed to allow defendant to live in

his Lacombe residence The camper that defendant lived in had been

damaged and his business office had been flooded Defendant agreed to

pay Timothy s monthly payment and utilities and defendant would be able

to operate his extermination business Galatas Systems from his brother s

residence

In late September or early October Timothy and defendant had

words following an attempt by Timothy s other siblings to place both

parents into a nursing home in Florida Following this verbal confrontation

defendant told Timothy that he was going to get even for blocking the

attempts to place their parents into a nursing home JQuestions and tensions

also arose between Timothy and his siblings over how their parents finances

were being handled

Despite defendant s agreement to pay the monthly payment and

utilities on Timothy s Lacombe residence the payments were not made

Timothy later discovered that he had lost possession to his home because the

monthly payment had not been paid On December 7 2005 Timothy

returned to his Lacombe residence in a V Haul moving truck to move his

possessions from the house Timothy entered the house and discovered that

Timothy requested the State of Florida conduct an evaluation as to whether his

parents needed to be placed into a nursing home The results of the evaluation indicated

that neither of his parents required nursing home care

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everything except for a sofa and a table had already been removed

According to Timothy the house had been trashed with beer bottles and

the key he had given to defendant was lying on the kitchen table There was

no sign of forced entry into the house Timothy contacted defendant and

asked where all his belongings were Defendant denied he had any of his

brother s items and suggested Timothy contact the police

Timothy contacted the St Tammany Parish Sheriffs Office and soon

made a list of items that were missing from his home After reporting the

missing items Timothy returned to Jacksonville

Sergeant Joseph Picone of the St Tammany Parish Sheriffs Office

began his investigation of the complaint shortly after Christmas 2005

Although Timothy suspected defendant was responsible for the missing

items Sergeant Picone s investigation included a canvassing of the

neighborhood where Timothy s home was located During his canvass

Sergeant Picone encountered Nicole Belsome a neighbor who lived across

the street from Timothy

According to Belsome shortly after the hurricane a man appeared at

Timothy s residence and stated that he was Timothy s brother from

Chalmette and that he would be working his business from the house For

the next several weeks Belsome observed activity at the residence Then

one day in December Belsome noticed a V Haul truck at the residence and

she saw defendant and others moving things from the residence into the

truck Belsome testified that the V Haul was there for several days and that

she even saw defendant moving things out during the night Belsome

testified that it took defendant much longer to move out of Timothy s house

than it took him to move into the house Belsome identified defendant from

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a photographic lineup as the person who moved into Timothy s residence

and who moved out of the residence

Prior to speaking with defendant Sergeant Picone acquired a V Haul

equipment contract in defendant s name for the rental of a truck on

December 3 2005

On January 26 2005 Sergeant Picone contacted defendant advised

him of the investigation and asked that he come to the police department to

speak about the investigation Defendant arrived at Sergeant Picone s office

and was advised of his Miranda rights After waiving his Miranda rights

defendant was interviewed regarding Timothy s missing possessions

Defendant denied that he had taken any of Timothy s belongings and

claimed he only removed his own belongings using his brown pickup truck

Defendant offered Sergeant Picone the opportunity to search his current

residence When Sergeant Picone accepted the offer and asked if they could

go immediately to defendant s residence defendant initially hesitated and

inquired whether the search could be conducted the next day However

defendant subsequently agreed that the search could take place that day

Defendant accompanied the police to his house When they arrived

Les Moore one of defendant s employees was already inside the residence

During the search several items that Timothy had reported as missing from

his residence were located in a spare bedroom in defendant s house

Detective Corey Crowe of the St Tammany Parish Sheriffs Office

assisted in the search and testified that the following items were recovered

from defendant s residence music CDs a cable TV reception box a JVCi

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video camera2 a mIrror and a remote control for a karaoke player

Defendant told Crowe that over the years he had acquired items from

Timothy that were transferred back and forth between them

Defendant was arrested and originally charged with simple burglary

According to Detective Picone defendant claimed he only used his brown

pickup truck to move his belongings from Timothy s residence to his new

home and that he moved out at the end of September 2005 At no time did

defendant tell Detective Picone that Timothy had given all his possessions to

him

Moore testified on defendant s behalf According to Moore

defendant restarted his business from Timothy s Lacombe residence

following the hurricane because the business office had been flooded

Moore testified that he did not participate in moving any of defendant s

belongings into Timothy s residence Moore stated he helped move

materials for defendant s business from Timothy s house to defendant s new

house off Dedinger Road in Lacombe According to Moore sometime in

November 2005 he and Barbara Hall the office manager loaded a moving

truck in about an hour and fifteen minutes and took it over to defendant s

new house According to Moore everything he moved was packed in boxes

but he specifically remembered moving a cable TV reception box3

Garland Galatas the defendant s older brother testified on

defendant s behalf Garland resided in California Following Hurricane

Katrina Garland traveled to Jacksonville to see his parents According to

Garland he defendant Giunta Timothy and Beverly Misrendino another

As the police were driving away from defendant s residence they realized that

the JVC video camera they had seen in defendant s residence matched the description of

the JVC video camera Timothy reported as missing The police returned to defendant s

residence and obtained consent to search for the JVC video camera and seized it

The cable TV reception box recovered from defendant s residence was matched

by serial number to the cable TV reception box issued to Timothy Galatas

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Galatas sibling met in the parking lot of the hospital in Jacksonville where

his mother had been admitted During this meeting Garland claimed

Timothy stated he was enjoying Florida so much he did not plan to return to

Louisiana Timothy indicated to defendant that he could live in his Lacombe

house and anything that was in the house was his because he did not want it

Garland admitted he never contacted the police or the prosecutors with this

information in an attempt to stop the prosecution of defendant

Giunta denied that he nor Timothy ever indicated they were not

returning to Louisiana Giunta testified that he and Timothy had purchased

the Lacombe house five weeks prior to the hurricane and had spent a lot of

time fixing the house

Misrendino testified that after the hurricane defendant brought their

mother to Jacksonville then returned to Slidell Shortly thereafter their

mother was hospitalized because of a stroke Misrendino testified that she

was present in the hospital parking lot when Timothy stated defendant could

use his Lacombe house because he was not returning to Louisiana

The State called Sergeant Picone as a rebuttal witness Sergeant

Picone testified that at no time did Moore claim responsibility for mistakenly

moving any of Timothy s belongings into defendant s house nor was he

ever contacted or told by any of defendant s siblings that they heard

Timothy give defendant permission to dispose of his belongings

Defendant did not testifY

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error defendant argues the evidence is

insufficient to support his conviction Defendant presents a twofold

argument First defendant argues the State failed to present sufficient

evidence that the property at issue was actually worth in excess of 500 00

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Second defendant argues the evidence was insufficient to prove guilty

knowledge andlor intent on his part

A conviction based on insufficient evidence cannot stand as it violates

due process See U S Const amend XIV La Const art I 2 The

standard of review for the sufficiency of the evidence to uphold a conviction

is whether any rational trier of fact viewing the evidence in the light most

favorable to the prosecution could conclude that the State proved the

essential elements of the crime beyond a reasonable doubt See LSA

C Cr P art 821 B Incorporated into Article 821 is the standard ofreview

alticulated in Jackson v Virginia 443 US 307 319 99 S Ct 2781 2789

61 L Ed 2d 560 1979 for testing the overall evidence both direct and

circumstantial for reasonable doubt Furthermore when analyzing

circumstantial evidence LSA RS 15 438 provides that the trier offact must

be satisfied that the overall evidence excluded every reasonable hypothesis

of innocence See State v Patorno 2001 2585 pp 4 5 La App 1st Cir

6 2102 822 So 2d 141 144 When circumstantial evidence forms the

basis of the conviction such evidence must consist of proof of collateral

facts and circumstances from which the existence of the main fact may be

inferred according to reason and common experience State v Shapiro 431

So 2d 372 378 La 1982

The testimony of the victim alone is sufficient to prove the elements

of the offense The trier of fact may accept or reject in whole or in part the

testimony of any witness This Court will not assess the credibility of

witnesses or reweigh the evidence to overturn a fact finder s determination

of guilt State v Dugas 96 1006 p 8 La App 1st Cir 2 14 97 691 So

2d 197 201

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Louisiana Revised Statute 14 69 A defines illegal possession of

stolen things as

t he intentional possessing procuring receiving or concealingof anything of value which has been the subject of any robberyor theft under circumstances which indicate that the offenderknew or had good reason to believe that the thing was the

subject of one of these offenses

Louisiana Revised Statute 14 69 B l sets forth the punishment for

illegal possession of stolen items when the value of the things is 500 00 or

more The State must present evidence of the value of the stolen items at the

time of the theft State v Dugas 96 1006 at p 8 691 So 2d at 201

In the present case defendant argues there was no evidence presented

that would establish the value of the JVC video camera the mirror the cable

box or the remote control for the karaoke machine Defendant argues the

only evidence relative to any value was in reference to the CDs used in the

karaoke machine Timothy estimated the approximate value of his CDs

recovered from defendant s house was 1 500 00 to 2 000 00

Defendant argues on appeal that Timothy was basing his estimate of

the value on the original purchase price and not current values Relying on

State v Williams 610 So 2d 129 La 1992 per curiam defendant

maintains that evidence of the original purchase price without any evidence

of the current condition of the items is insufficient to establish the value of

the items

We disagree In State v Williams 610 So 2d at 130 the item at issue

was a stolen vehicle The vehicle had been purchased ten years prior to its

theft and the victim testified that at the time of the vehicle s disappearance

it had maintenance problems to the extent that the owner was planning to

trade the car in Further in State v Williams the State failed to introduce

any photograph of the vehicle at the time of the theft or describe the extent

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of the maintenance problems Thus the court modified the verdict and

ordered entry of conviction of the lesser offense of possession of stolen

property valued at less than 100 00

In the present case Timothy testified that he purchased a karaoke

machine in 2002 in conjunction with his catering business Timothy

testified that the karaoke CDs had graphics embedded in them and must be

played by a certain type of machine Timothy estimated the approximate

value of the missing CDs was between 1 500 00 2 000 00

Unless it is shown the owner lacks knowledge of the value of a

movable his testimony as to value is generally admissible with its weight

being left to the jury State v McCray 305 So 2d 433 435 La 1974

During trial of this matter defense counsel had ample opportunity to cross

examine Timothy regarding the value of these CDs however no questions

were asked by defense counsel challenging Timothy s estimated value of

these CDs While we agree no evidence was introduced regarding the value

of anything other than the music CDs Timothy s testimony provided a

reasonable basis for the jury to conclude that the value of Timothy s

karaoke music CDs found in defendant s residence exceeded 500 00 at the

time of the offense This portion of the assignment of error is without merit

In defendant s second argument under this assignment of error he

contends the State failed to prove he had guilty knowledge that the items

were stolen or even in his possession

Illegal possession of stolen things is a general intent crime See State

v Davis 371 So 2d 788 790 La 1979 General criminal intent is present

when the circumstances indicate that the offender in the ordinary course of

human experience must have adverted to the prescribed criminal

consequences as reasonably certain to result from his act or failure to act

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LSA R S 14 10 2 Though intent is a question of fact it need not be

proven as a fact it may be inferred from the circumstances of the

transaction State v Davis 371 So 2d at 790

The testimony at trial established that Timothy gave defendant

permission to use his house in Lacombe following Hurricane Katrina

Defendant moved into the house and operated his business from the

premises During his stay at Timothy s house defendant and Timothy had

an argument regarding the care for their parents and defendant threatened

revenge against Timothy Despite defendant s statement that he would pay

the monthly payment on Timothy s house Timothy discovered that this had

not been done and Timothy lost possession of his house When Timothy

returned from Florida to collect his possessions practically all of his

belongings were missing The key he had provided the defendant with was

on a kitchen table and there was no sign of forced entry Timothy contacted

defendant and asked where his belongings were but defendant denied that

he had taken them Some of Timothy s possessions were subsequently

found in defendant s new residence

Defendant also told Sergeant Picone that he alone moved his items

from Timothy s house using his personal vehicle a brown pickup truck

However Sergeant Picone s investigation revealed defendant had rented a

U Haul truck and had been seen moving items out of Timothy s house with

the help of other people Belsome testified that defendant was moving many

more items out of the house than he had moved into the house

Further despite the testimony of Galatas and Misrendino that they

both heard Timothy tell defendant he had no intention of returning to

Louisiana and that defendant could have whatever he wanted from the

Lacombe house none of this information was provided to the police or

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district attorney in order to prevent the prosecution of their brother

Moreover Timothy denied ever making such a statement Although Moore

testified he merely moved items that had already been boxed up he never

came forward prior to his trial testimony to assert that some of Timothy s

belongings may have been taken to defendant s new residence by mistake

As further support of this argument that the evidence was insufficient

defendant contends that the U Haul receipt indicating defendant rented a U

Haul on December 3 2005 for just a few hours directly conflicts with

Belsome s testimony that defendant used a U Haul for several days We

disagree First defendant may not have been the individual to rent the

particular U Haul Belsome observed since she testified that several people

were assisting defendant Further when speaking to the police defendant

claimed to have only used his personal pickup truck to move his belongings

out of his brother s house

Nonetheless the jury was able to infer from the facts of this situation

that defendant possessed the requisite criminal intent that he knew or had

good reason to believe Timothy s possessions had been removed from the

residence without permission and that some of the articles were at

defendant s residence Viewing the evidence in the light most favorable to

the prosecution we find the evidence sufficiently supports defendant s

conviction for possession of stolen things valued at over 500 00

This assignment of error is without merit

TESTIMONY REGARDING ITEMS NEVER RECOVERED

In his second assignment of error defendant argues the trial court

erred in allowing testimony relative to the apparent theft of numerous items

which were not found in the possession of defendant and therefore not

relevant to the instant offense

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The record indicates that Timothy testified that his list of missing

items included Italian crystal paintings a few mirrors a karaoke system

two Kitchen Aid mixers cake decorating equipment catering supplies two

laptop computers a personal computer a printer and a brand new queen

size bed None of these items were recovered by the police

Insofar as the testimonial evidence is concerned the record reflects

that the defendant did not lodge a contemporaneous objection to the

testimony in question Under LSA C Cr P art 841 a contemporaneous

objection is required to preserve an error for appellate review The purpose

of the contemporaneous objection rule is to allow the trial judge the

opportunity to rule on the objection and thereby prevent or cure an error

State v Hilton 99 1239 p 12 La App 1st Cir 3 3100 764 So 2d 1027

1035 writ denied 2000 0958 La 3 9 01 786 So 2d 113 The defendant

did not make a contemporaneous objection regarding Timothy s testimony

about the missing items It is well settled that irregularities or errors cannot

be availed of on appeal if they are not objected to at the time of the

occurrence State v Walker 94 0587 p 4 La App 1st Cir 4795 654

So 2d 45 l 453 writs denied 95 1124 1125 La 9 22 95 660 So 2d

470 Since the defendant failed to lodge a contemporaneous objection on

this ground during trial as required by LSA C CrP art 841 he is precluded

from raising the issue on appeal See also LSA C E art 1 03 A 1

REVIEW FOR ERROR

This Court reviews the record for error under LSA C CrP art 920 2

Under Article 920 2 we are limited in our review to errors discoverable by a

mere inspection of the pleadings and proceedings without inspection of the

evidence See State v Price 2005 2514 pp 18 22 La App 1 st Cir

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12 28 06 952 So 2d 112 123 25 en bane writ denied 2007 0130 La

2 22 08 So 2d

Our review has revealed an error in the trial court s imposition of

restitution At sentencing the trial court stated

You ll make restitution in the amount to be determined by the

probation officer The Court will hold open the issue ofrestitution in the event that there s a disagreement over that

Considering the foregoing we find the trial court failed to set a

specific amount of restitution to be paid as a condition of defendant s

probation When a trial court suspends the imposition or execution of

sentence and places a defendant on probation the court is required to set the

amount of restitution LSA CCr P arts 895 A 7 895 1 A see also

State v Cortina 632 So 2d 335 338 La App 1st Cir 1993 In the

present case the condition of probation imposed is defective because of the

trial court s failure to state a specific amount to be paid in restitution

Because of this error we vacate this particular condition of probation

and remand this matter to the district court solely for imposition of a new

condition of restitution

CONVICTION AFFIRMED SENTENCE CONDITIONALLYAFFIRMED CONDITION OF PROBATION VACATED AND CASEREMANDED TO DISTRICT COURT WITH INSTRUCTIONS

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