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April 14, 1995


Appeal from Houston Circuit Court. (CC-93-910). Michael Crespi and Edward Jackson, TRIAL JUDGES.

Rehearing Denied May 26, 1995. Certiorari Denied August 11, 1995. Released For Publication February 5, 1996.

Long, Judge. All Judges Concur.

The opinion of the court was delivered by: Long


Steven LaFontaine, the appellant, was convicted of theft of property in the second degree and was sentenced to 10 years' imprisonment under the Habitual Felony Offender Act.

The State's evidence showed that Officer Les Stover of the Dothan Police Department was patrolling near a Hobo Pantry convenience store at approximately 1:30 a.m. on July 14, 1993, when he saw two people in the store, one of whom was the appellant. The officer thought that this was unusual because, in his experience, the store employees usually left by 10:00 or 11:00 p.m. He stopped and asked the appellant why he was there so late at night, and the appellant told him that he and the other person were taking inventory. The officer then left.

The store manager, Ester West, testified that the appellant had been working at the Hobo Pantry for one week as of July 13, 1993. His duties included running the register, sweeping, mopping, stocking the coolers, and checking the level in the gasoline tanks. The appellant was not responsible for taking inventory. An inventory crew, of which he was not a part, took inventory once a month. The appellant was scheduled to be at work at 1:00 p.m. and he was alone in the store after 2:00 p.m., when Ms. West would leave, until closing time. He was not supposed to be in the store after 10:30 p.m. If he did not finish the sweeping, mopping, and stocking by 10:30 p.m., he was supposed to leave those tasks for the first shift in the morning to do.

The appellant was working in the store when Ms. West left on July 13, 1993. No one other than the appellant and Ms. West worked on that date. When she began her shift at 4:00 a.m. on July 14, 1993, Ms. West discovered that the cash taken in during the appellant's shift, as reflected by his shift report, $982.00, was not in the safe and was missing.

Jim Quintero, director of retail operations for Home Oil Company, Inc., and Hobo Pantry Food Store, testified that the appellant had worked for the company for more than one week at the time of the incident, that he had a history of cash shortages on his shift while he was employed there, and that in the week before the theft at issue, there had been a $100 shortage during his shift.

Willie Williamson, an investigator with the Dothan Police Department, questioned the appellant on the morning the theft was discovered. The investigator testified that he asked the appellant why he had been in the store at 1:30 a.m., and that he responded that he was conducting inventory.

Trina LaFontaine, the appellant's wife, was the only witness to testify for the defense. She testified that she arrived at the Hobo Pantry right after 8:30 p.m. on July 13, 1993, that at that time two men were waxing the floors, and that she stayed there until they finished the waxing, at approximately 10:00 p.m., at which time she went home. She said that she went back to the store at approximately 11:30 p.m. or 12:00 a.m. to help the appellant restock and clean up, which took about one and one-half hours. Mrs. LaFontaine further testified that she knew where the key to the safe was kept because she had seen the appellant with it, and that while he was outside emptying the trash and without his knowledge, she got the key, opened the safe, and took the money. The appellant raises three issues on this direct appeal of his conviction.


The appellant contends that the trial court erred by denying his motion to reopen his case and his motion for additional time in which to interview and subpoena potential witnesses, on the basis of newly discovered evidence. These motions were made at the beginning of the second day of the trial, after both sides had rested, but before closing arguments. The evidence in question was a receipt from the cleaning company that cleaned the Hobo Pantry store, which showed that it waxed the floor of the store on July 13, 1993. The State discovered that the cleaning company had the receipt during the first day of the trial. The appellant argues that he should have been allowed to present evidence of the receipt to corroborate Mrs. LaFontaine's testimony that a cleaning crew had waxed the store's floor on the night of July 13, 1993.

"The court may, at its discretion, at any time before the Conclusion of the argument, when it appears to be necessary to the due administration of Justice, allow a party to supply an omission in the testimony on such ...

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