author: HUGHES, J.

text:
    STATE of Louisiana v. Christopher EBERHARDT. State of Louisiana v. Jamal C. Taylor and Kelin A. Stevens.
    Nos. 2013-KK-2306, 2014-KA-0209.
    Supreme Court of Louisiana.
    July 1, 2014.

      22nd Judicial District Public Defender, Michael L. Capdeboscq, John William Lindner, II, for Applicant (No. 2013-KK-2306).
    Hon. James D. Caldwell, Attorney General, Colin Andrew Clark, Assistant Attorney General, Kathryn W. Landry, St. Tammany Parish District Attorney’s Office, Hon. Walter P. Reed, District Attorney, for Respondent (No. 2013-KK-2306).
    Kristi Garcia Sponosa, Counsel for A/C Louisiana District Attorneys Association, Amicus Curiae for Respondent (No. 2013-KK-2306).
    Hon. James D. Caldwell, Attorney General, Colin Andrew Clark, Assistant Attorney General, Jefferson Parish District Attorney’s Office, Hon. Paul D. Connick, Jr., District Attorney, Terry Michael Bou-dreaux, Assistant District Attorney, Angel Varnado, Assistant District Attorney, for Appellant (No. 2014-KA-209).
    24th JDC Public Defender Office, Letita Jaehintha Parker-Davis; Cesar J. Vazquez, Louisiana Appellate Project, Bruce G. Whittaker, Christopher A. Aberle, for Ap-pellee (No. 2014-KA-209).
   HUGHES, J.

|TIn 2012 by a seventy-three percent majority the people voted to amend Article I, Section 11 of the Louisiana Constitution, effective December 10, 2012, which now provides:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.

Prior to its amendment this article provided that, “The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.”

The purpose of the amendment is to strengthen and protect from government intrusion the right of our citizens to keep and bear arms. While many have always 12considered the right fundamental, that has now been made clear, and any restriction may occur only after the highest level of review, “strict scrutiny.”

Some arrested or convicted of crimes involving firearms have attempted to show that the laws under which they were charged do not withstand strict scrutiny and are thus unconstitutional.

In these consolidated cases we now reject those arguments. Our law proscribing the possession of firearms by convicted felons is not affected by the amendment and withstands a strict scrutiny analysis. Such laws are effective, time-tested, and easily understandable, and do not violate the constitution. Common sense and the public safety allow no other result.

FACTS AND PROCEDURAL HISTORY

In the ease of State v. Eberhardt, the September 17, 2012 St. Tammany Parish felony bill of information charged Eber-hardt with: (1) one count of possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1, alleging that, on or about June 27, 2012, he illegally possessed a firearm, having been previously convicted of the unauthorized entry of an inhabited dwelling, a violation of LSA-R.S. 14:62.3, on June 11, 2007 in St. Tammany Parish; (2) one count of theft, a violation of LSA-R.S. 14:67, alleging that, between March 6, 2012 and June 25, 2012, he misappropriated or took over $1,500 worth of property belonging to Faye Eberhardt; and (3) one count of cyb'erstalking, a violation of LSA-R.S. 14:40.3(B)(1), alleging that, on or between November 7, 2010 and August 30, 2011, via electronic mail or electronic communication of words or language, he threatened to inflict bodily harm to a person or such person’s child, sibling, spouse, or dependant, or physical injury to the property of a person, or for the purpose of extorting money or other things of value from a person. Eberhardt was also charged by a September 17, 2012 misdemeanor bill of information with Lone count of first offense possession of marijuana, a violation of LSA-R.S. 40:966(C) and (E)(1), which occurred on or about June 26, 2012.

In the case of State v. Taylor, a May 10, 2012 Jefferson Parish grand jury indictment charged defendants Taylor and Stevens, each, with one count of second degree murder, a violation of LSA-R.S. 14:30.1, alleging that, on January 6, 2012, the defendants committed the second degree murder of “a Known Juvenile (DOB 2/23/2000).”

In addition to the charge of second degree murder, Taylor was also charged with: (1) five counts of possession of a firearm by a convicted felon, violations of LSA-R.S. 14:95.1, alleging that, on June 21, 2011, August 2, 2011, November 22, 2011, January 6, 2012, and January 9, 2012, he illegally possessed a firearm, having been previously convicted of possession of cocaine in the United States District Court for the Eastern District of Louisiana; (2) one count of attempt to commit the second degree murder of Derrick Ford on November 22, 2011, a violation of LSA-R.S. 14:27 and 14:30.1; and (3) one count of possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A).

In addition to the charge of second degree murder allegedly committed with co-defendant Taylor, Stevens was also charged with two counts of possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1, alleging that, on June 8, 2011 and January 6, 2012, he illegally possessed a firearm, having been previously convicted of second degree battery, a violation of LSA-R.S. 14:34.1, and of possession with intent to distribute marijuana, a violation of LSA-R.S. 40:966(A).

Eberhardt, Taylor, and Stevens all filed motions to quash the felon-in-possession charges against them, in their respective district court proceedings, |4asserting the unconstitutionality of LSA-R.S. 14:95.1, which they contend impermissibly infringes on their fundamental right to keep and bear arms, as set forth in LSA-Const. art. I, § 11. The Jefferson Parish district court ruled in favor of Taylor and Stevens, granting these defendants’ motions to quash, and the State appealed the declaration of the ruling of unconstitutionality as to LSA-R.S. 14:95.1. The St. Tammany Parish district court denied Eberhardt’s motion to quash, and he filed a writ application with this court, which was granted. See State v. Eberhardt, 2013-2306 (La.2/14/14), 145 So.3d 377. These cases were consolidated for review in this court as they present the same issue, i.e., whether LSA-R.S. 14:95.1 is unconstitutional, as violative of LSA-Const. art. I, § 11.

In appealing the ruling of unconstitutionality rendered in State v. Taylor, the State asserts in its assignments of error that the Jefferson Parish district court erred in finding that: (1) felons are entitled to the right conferred by LSA-Const. art. 1, § 11; (2) LSA-R.S. 14:95.1 is facially unconstitutional; and (3) LSA-R.S. 14:95.1 is unconstitutional as applied to the defendants. In conjunction with his application for supervisory review, Eberhardt contends the St. Tammany Parish district court erred in failing to hold LSA-R.S. 14:95.1 unconstitutional.

A motion by the Louisiana District Attorneys Association (“LDAA”) seeking to file an amicus curiae brief in this court was granted, and the LDAA has submitted arguments in support of the constitutionality of LSA-R.S. 14:95.1.

LAW AND ANALYSIS

Our standard of review in determining the constitutionality of a statute, a question of law, is de novo. See State v. Webb, 2013-1681 (La.5/7/14), 144 So.3d 971, 975, 2014 WL 1800039; State v. Draughter, 2013-0914 (La.12/10/13), 130 So.3d 855, 860; City of Bossier City v. Vernon, 2012-0078 (La.10/16/12), 100 So.3d 301, 303. A de novo review means the court will render judgment after its consideration of the legislative provisions at issue, the law, and the record, without deference to the legal conclusions of the tribunals below. City of Bossier City v. Vernon, 100 So.3d at 303.

The defendants herein have challenged the validity of the charges against them under LSA-R.S. 14:95.1, which makes it unlawful for any person convicted of certain felonies to possess a firearm or carry a concealed weapon. Because the right to keep and bear arms is a fundamental right, as described in LSA-Const. art. I, § 11, a statute restricting that right (here, LSA-R.S.14:95.1) must survive the test of “strict scrutiny,” a test which is mentioned in LSA-Const. art. I, § 11, but not defined. See State v. Webb, 144 So.3d at 977.

Under strict scrutiny the government bears the burden of proving the constitutionality of the regulation by showing: (1) that the regulation serves a compelling governmental interest, and (2) that the regulation is narrowly tailored to serve that compelling interest. State v. Dra,lighter, 130 So.3d at 862. Strict scrutiny requires a careful examination by our courts, keeping in mind that the fundamental right at issue is one where some degree of regulation is likely to be necessary to protect the public safety. State in the Interest of J.M., 144 So.3d at 860 (quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 2338, 156 L.Ed.2d 304 (2003), which stated that in a strict scrutiny analysis “context matters”).

The defendants contend, and the Jefferson Parish district court ruled, that LSA-R.S. 14:95.1 is unconstitutional on its face, as violative of LSA-Const. art. I, § 11. The defendants further contend that LSA-R.S. 14:95.1 is unconstitutional as applied to their individual circumstances.

| ^Revised Statute 14:95.1 provides:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.
C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

Subsequent to the 2012 amendment of LSA-Const. art. I, § 11, this court considered the constitutionality of LSA-R.S. 14:95.1 in State v. Draughter, 2013-0914 (La.12/10/13), 130 So.3d 855, and the constitutionality challenge to LSA-R.S. 14:95.1 was rejected in the limited circumstances presented in that case, i.e., vis-á-vis a defendant who had been released from the physical custody of the State, but who continued to be subject to State supervision, on active probation, for his |7prior conviction. We held that the State has a compelling interest in regulating convicted felons still under the State’s supervision, and LSA-R.S. 14:95.1 is narrowly tailored to achieve that interest. This court concluded that LSA-R.S. 14:95.1 survives strict scrutiny and was not an unconstitutional infringement of Draughter’s right to bear arms, pursuant to Article I, Section 11, as applied to the narrow fact situation presented in that case. This court’s conclusion in State v. Draughter was easily reached given that the defendant was still under State supervision and was serving the probation portion of his criminal sentence, which necessarily involved an intrusion into the defendant’s life by the State officials administering the supervision required by his status. The possession of a firearm by such a defendant was found to be inconsistent with that status and would subject the individuals tasked with his supervision to an untenable safety risk. We declined to address the “larger question” of whether the State may dispossess certain convicted felons of their right to bear arms for a number of years, even after they have paid their debt to society and fully discharged their sentences, having determined that precise question was not before the court. See State v. Draughter, 130 So.3d at 866-68.

Since deciding State v. Draughter, we have examined the 2012 amendment to LSA-Const. art. I, § 11 in State in the Interest of J.M. (with respect to LSA-R.S. 14:95(A), making illegal the carrying of an intentionally concealed firearm on one’s person, and LSA-R.S. 14:95.8, making unlawful the possession of a handgun by a person under the age of seventeen except in certain enumerated circumstances), and in State v. Webb (with respect to LSA-R.S. 14:95(E), making unlawful the possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance). In both State in the Interest of J.M. and State v. Webb, this court upheld the challenged statutes against the defendants’ claims that these statutes unconstitutionality violated LSA-Const. art. |8I, § 11, concluding that each of the challenged statutes was enacted pursuant to compelling government interests and that each was narrowly tailored to achieve legitimate government purposes.

While the status of the defendants in the instant consolidated cases differs from those at issue in State v. Draughter, in that the Draughter defendants were still under State supervision at the time of their arrests and the instant defendants had completed all aspects of their prior sentences and were no longer under State supervision when they were arrested on subsequent offenses, we nevertheless uphold the validity of LSA-R.S. 14:95.1.

We begin our analysis of the current LSA-Const. art. I, § 11-based challenges to LSA-R.S. 14:95.1 by pointing out that we recognized in Draughter that the right to bear arms has always been considered fundamental. The 2012 amendment to LSA-Const. art. I, § 11 merely sought to ensure that the review standard of an alleged infringement of this fundamental right was in keeping with the refinements made to constitutional analysis that developed since our decision in State v. Amos, 343 So.2d 166 (La.1977). See State v. Draughter, 130 So.3d at 863. The 2012 amendment of LSA-Const. art. 1, § 11 did not, therefore, effect a change in the nature of the right by adding the term “fundamental” to describe the right to keep and bear arms. State v. Webb, 144 So.3d at 977 n. 3

[ 9As we recognized in State v. Amos, the right to keep and bear arms, like other rights guaranteed by our State constitution, is not absolute. Further, the Supreme Court described a similar understanding of the nature and limitations of the right to bear arms in the analogous Second Amendment, in District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 2816,171 L.Ed.2d 637 (2008), stating, “From Blackstone through the 19th-centu-ry cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” See State in the Interest of J.M., 144 So.3d at 860.

This court concluded in State in the Interest ofJ.M. that the voters’ ratification of strict scrutiny as a standard of review to be applied to alleged infringements on the right to keep and bear arms was not meant to invalidate every restriction on firearms, whether in existence at the time the amendment was ratified or yet to be enacted. Rather, the strict scrutiny standard adopted by the voters is “designed to provide a framework for carefully examining the importance and sincerity of the reasons advanced by the governmental de-cisionmaker” for firearm regulation within the context of the fundamental right to keep and bear arms. State in the Interest of J.M., 144 So.3d at 860 (quoting Grutter v. Bollinger, 589 U.S. at 327, 123 S.Ct. at 2338).

A measure of ambiguity was created by the fact that the legislature, in its 2012 amendment of LSA-Const. art. I, § 11, omitted from its prior text the phrase “but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person” and by calling for “strict scrutiny” of any restriction on the right to keep and bear arms. Therefore, consideration of the legislative history is appropriate. See Louisiana Federation of Teachers v. State of Louisiana, 2013-0120 (La.5/7/13), 118 So.3d 1033, 1061.

110A discussion of the proposed amendment to LSA-Const. art. I, § 11, by Senate Bill No. 303 (later passed as 2012 La. Acts, No. 874), took place on the Senate floor, which is instructive on the issues before this court. During the Senate discussion, the bill’s sponsor, Senator Riser, answered questions about the meaning and effect of the bill, raised by Senators Claitor, Thompson, Donahue, Appel, and Long. Senator Riser stated that the purpose of the act was to reinforce the Second Amendment in Louisiana law, so that Louisiana would have the strongest Second Amendment law in the nation should the amendment pass. The aim of the legislature in amending LSA-Const. art. I, § 11 was described by Senator Riser as protecting the fundamental right of individuals to keep and bear arms, in light of the Supreme Court’s narrow 5-to-4 majority opinions in District of Columbia v. Heller and McDonald v. City of Chicago. However, when specifically questioned about the effect the proposed act would have on existing gun laws, Senator Riser stated, “[T]his [act] defines ... how laws are judged.... [W]e roughly have close to forty gun laws right now and those laws will stay in effect.” Senator Riser further stated, “Any [weapon] law on the books right now is on the books [and] they are going to stay there.... You’ll have to follow the current statute[s].” From these discussions, we can conclude that, in passing Act 874, the legislature did not intend to invalidate existing weapons laws.

As declared by this court in State v. Amos, it is beyond question that the statute challenged in the instant case, LSA-R.S. 14:95.1, was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous ^disregard for the law and present a potential threat of further or future criminal activity. State v. Amos, 343 So.2d at 168.

State v. Amos further acknowledged that LSA-R.S. 14:95.1 is addressed to persons who are citizens of this State by virtue of the termination of state or federal supervision following their convictions, pursuant to LSA-Const. art. I, § 20. These persons have previously been convicted of serious criminal offenses, and restoration of citizenship cannot erase this fact. The State v. Amos opinion recognized that the verbatim transcripts of the constitutional convention debates indicated that neither LSA-Const. art. I, § 11 nor LSA-Const. art. I, § 20 were ever intended to preclude the type of legislation disputed herein. We are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms, for a limited period of time, by citizens who have committed certain specified serious felonies. Courts of other states having statutes and constitutional provisions comparable to our own have similarly concluded that such regulation is constitutionally permissible as a reasonable and legitimate exercise of police power. See State v. Amos, 343 So.2d at 168. We conclude that the precepts set forth in State v. Amos continue to be valid and applicable today.

We also note that in District of Columbia v. Heller the Supreme Court, in evaluating the analogous Second Amendment right to bear arms, stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, |iaor laws imposing conditions and qualifications on the commercial sale of arms.” District of Columbia v. Heller, 554 U.S. at 626-27, 128 S.Ct. at 2816-17. See also in McDonald v. City of Chicago, 561 U.S. at—, 130 S.Ct. at 3047; U.S. v. Yancey, 621 F.3d 681, 685 (7th Cir.2010) (“[S]omeone with a felony conviction on his record is more likely than a nonfelon to engage in illegal and violent gun use.”).

We conclude that LSA-R.S. 14:95.1 serves a compelling governmental interest that has long been jurisprudentially recognized and is grounded in the legislature’s intent to protect the safety of the general public from felons convicted of specified serious crimes, who have demonstrated a dangerous disregard for the law and the safety of others and who present a potential threat of further or future criminal activity. See State v. Amos, 343 So.2d at 168. Further, the law is narrowly tailored in its application to the possession of firearms or the carrying of concealed weapons for a period of only ten years from the date of completion of sentence, probation, parole, or suspension of sentence, and to only those convicted of the enumerated felonies determined by the legislature to be offenses having the actual or potential danger of harm to other members of the general public. Under these circumstances, we find “a long history, a substantial consensus, and simple common sense” to be sufficient evidence for even a strict scrutiny review.' State in the Interest of J.M., 144 So.3d at 861 (quoting Burson v. Freeman, 504 U.S. 191, 211, 112 S.Ct. 1846,1858,119 L.Ed.2d 5 (1992)).

Furthermore, to challenge a legislative act as unconstitutional on its face is the most difficult challenge to mount successfully, since the challenger must | ^establish that no set of circumstances exists under which the statute would be valid. Prejean v. Barousse, 2012-1177 (La.1/29/13), 107 So.3d 569, 571-72; City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 2005-2548 (La.10/1/07), 986 So.2d 1, 19; State v. Brown, 94-1290 (La.1/17/95), 648 So.2d 872, 875 (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)). Generally, the legislature may do anything that the constitution does not prohibit. The task is to determine whether the challenged statute is so inconsistent with our constitution that there exists no set of circumstances under which the statute would be valid. See Prejean v. Barousse, 107 So.3d at 572. See also Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (“[A] plaintiff can only succeed in a facial challenge by ‘establishing] that no set of circumstances exists under which the Act would be valid,’ i.e., that the law is unconstitutional in all of its applications.”). No such showing can be made in the instant case; as seen in State v. Draughter, circumstances clearly exist where LSA-R.S. 14:95.1 is valid. Therefore, we find no merit in the defendants’ facial challenge to LSA-R.S. 14:95.1.

We also reject the defendants’ argument that LSA-R.S. 14:95.1 is unconstitutional as applied to their individual circumstances.

Each of the three defendants reoffended within a relatively short period of time following the completion of previously imposed State supervision. Stevens was released from State supervision on his prior conviction for possession of marijuana on May 18, 2011, and he was charged with committing a violation of LSA-R.S. 14:95.1 on June 8, 2011, only three weeks later. Eberhardt was released from State supervision on his prior conviction of unauthorized entry of an inhabited dwelling on May 30, 2010, and he was charged with committing a violation of LSA-R.S. 14:95.1 on June 27, 2012, approximately two years later |14(though we note that the third count of the indictment against Eberhardt charged him with cyberstalking, which had allegedly commenced on or about November 7, 2010, only twenty-three weeks after completion of his prior State supervision). Taylor completed his prior federal sentence for possession of cocaine and was released from federal supervision on June 1, 2007, and he was charged with committing a violation of LSA-R.S. 14:95.1 on June 21, 2011, approximately four years later.

These three defendants illustrate, rather than show exceptions to, the principles underlying felon-in-possession laws such as LSA-R.S. 14:95.1, i.e., that certain convicted felons have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity and are more likely than nonfelons to engage in illegal and violent gun use. These cases demonstrate that convicted felons are not only at risk to reoffend, but are at risk to reoffend using firearms.

In the case of Taylor and Stevens, a firearm was used in the second degree murder for which they are charged as co-defendants in this case. This is exactly the type of offense LSA-R.S. 14:95.1 was enacted to prevent.

In Eberhardt’s case, his weapon possession offense does not appear to be connected to his other charged offenses of cyberstalking and theft. Eberhardt further suggests that his prior offense of unauthorized entry of an inhabited dwelling had no connection to possession of a firearm and that, therefore, as applied to his circumstances, LSA-R.S. 14:95.1 is not narrowly tailored to ensure public safety. We find no merit in Eberhardt’s argument. While Eberhardt might not have armed himself before committing unauthorized entry of an inhabited dwelling, the entry by an unauthorized person into the residence of another presents a situation of potential harm to the occupant who may resist the intrusion, in that the offender may nevertheless acquire a weapon on the premises and use it |iato cause harm to others. Moreover, some inhabited dwelling offenders go on to reoffend with a weapon. See State v. Wiggins, 2013-0649 (La.App. 1 Cir. 1/31/14), 139 So.3d 1 (wherein the defendant was previously convicted of simple burglary of an inhabited dwelling and subsequently reoffended with a firearm and attempted to kill his victim); State v. Shepherd, 2008-1556 (La.App. 3 Cir. 6/3/09), 11 So.3d 729 (wherein the defendant entered the residence of the victim, without authorization, and then armed himself with the victim’s weapon and shot the victim in the chest). We do not find as applied over-inclusiveness in Eberhardt’s case. The offense of unauthorized entry of an inhabited dwelling carries such a high potential for harm to innocent bystanders that its inclusion by the legislature within the ambit of LSA-R.S. 14:95.1 is clearly warranted. Furthermore, it is impossible for the legislature to predict with complete certainty which offenders will reoffend with a firearm, and including those offenses that demonstrate a serious disregard for the safety of others within LSA-R.S. 14:95.1’s felon-in-possession prohibition is appropriate given the compelling state interest in protecting the public.

hfiWe find no merit in the as applied challenges asserted by these defendants.

CONCLUSION

We conclude that LSA-R.S. 14:95.1 is not unconstitutional as violative of LSA-Const. art. I, § 11.

DECREE

For the reasons assigned, we reverse the judgment of the Jefferson Parish district court, rendered in favor of the defendants, Jamal C. Taylor and Kelin A. Stevens, which declared LSA-R.S. 14:95.1 unconstitutional and granted these defendants’ motions to quash. We further affirm the judgment of the St. Tammany Parish district court, rendered in favor of the State of Louisiana, which upheld the constitutionality of LSA-R.S. 14:95.1 and denied the motion to quash filed by Christopher Eberhardt.

TWENTY-FOURTH JUDICIAL DISTRICT COURT JUDGMENT REVERSED; TWENTY-SECOND JUDICIAL DISTRICT COURT JUDGMENT AFFIRMED.

      . On July 12, 2012, a third co-defendant, Brandon J. Smith, was joined, along with Taylor and Stevens, in the second degree murder charge; however, Smith was not charged with LSA-R.S. 14:95.1 and did not join in contesting the constitutionality of LSA-R.S. 14:95.1.

      . These consolidated cases present no factual issues, as the rulings under review were made following hearings, in the respective district court proceedings, on the defendants' motions to quash. A motion to quash is essentially a mechanism whereby pre-trial pleas, which do not go to the merits of the charge, are urged. See State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, 411, cert. denied sub nom., Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998).

      . State v. Draughter further recognized that the 2012 amendment to LSA-Const. art. I, § 11 was prompted in part by the slim 5-to-4 Supreme Court majority decisions in the recent cases of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (holding that the Second Amendment’s right to keep and bear arms extended beyond participation in a citizen militia to "law-abiding, responsible citizens to use arms in defense of hearth and home” and invalidating the District of Columbia’s total ban on the possession of handguns and the requirement that citizens keep their firearms inoperative, as the requirement made it impossible for citizens to use firearms for the core lawful purpose of self-defense), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (holding that the Second Amendment’s individual right to bear arms, recognized in Heller, is a right fundamental to our scheme of ordered liberty and fully applicable to the states through the Due Process Clause of the Fourteenth Amendment). Partly in response to Heller and McDonald, Louisiana legislators introduced legislation that ultimately resulted in the 2012 amendment of the State constitution, with the stated intention being to secure and protect Louisiana citizens' right to bear arms under the Louisiana Constitution from possible future judicial or legislative erosion.

      . The recorded April 9, 2012 Senate discussion is archived on the Louisiana Senate website (http://senate.la.gov/sessioninfo/Archives/ 2012/rs.htm at 01:57:44).

      . Article I, Section 20 provides, in pertinent part: "Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.” Nevertheless, this court held in State v. Adams, 355 So.2d 917, 922 (La.1978), that LSA-Const. art. 1, § 20 restores only the basic rights of citizenship, such as the right to vote, work, or hold public office. See State v.

        Selmon, 343 So.2d 720, 721-22 (La.1977). See also U.S. v. Dupaquier, 907 F.Supp. 951, 953-57 (M.D.La.1995).

      . We note that Louisiana’s LSA-R.S. 14:95.1 felon-in-possession law is less restrictive than the comparable federal law, which encompasses nearly all felonies and has no ten-year cleansing period. Pursuant to 18 U.S.C.A. § 922(g): "It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

      . Eberhardt also cites the first offender pardon he received from the Department of Public Safety and Corrections ("DPSC") after completing his probation; the June 24, 2010 DPSC notice stated that Eberhardt had completed his sentence for unauthorized entry of an inhabited dwelling and had met all of the requirements for an automatic first offender pardon, under LSA-R.S. 15:572(D), and further stated: "[A]s provided by Article 1, Section 20, and Article 4, Section 5(E)(1), of the Louisiana Constitution, this will certify that effective May 30, 2010, CHRISTOPHER EBERHARDT has discharged his/her sentence for the above stated offense(s) and that all rights of citizenship and franchise are restored in Louisiana.” However, the “verification of first offender pardon” received by Eberhardt also notified him that ”[t]he right to receive, possess or transport a firearm may not be restored unless all legal provisions are met and should be determined through the local law enforcement agency.” At the time the June 24, 2010 notice was sent to Eber-hardt, LSA-R.S. 14:95.1(C) provided that, in addition to the ten-year cleansing period, a convicted felon who had completed his sentence, probation, parole, or suspension of sentence could apply to the sheriff of the parish in which he resided for a permit to possess a firearm; this discretionary sheriff's permit procedure was repealed by the Louisiana Legislature by 2010 La. Acts, No. 942, § 1, effective August 1, 2010. There is no indication that Eberhardt applied for a sheriff’s permit to possess a firearm between his date of eligibility, May 30, 2010, and the date that the repeal of the sheriffs permit provision became effective, August 1, 2010. In the absence of such a permit, the restoration of citizenship rights accorded by an LSA-R.S. 15:572(D) automatic pardon to first offenders does not exempt such an offender from the application of LSA-R.S. 14:95.1. See State v. Wiggins, 432 So.2d 234, 236-37 (La.1983); State v. Riser, 30,201 (La.App. 2 Cir. 12/12/97), 704 So.2d 946, 949-50.


source: Caselaw Access Project

author: PER CURIAM. HUGHES, J.,

license: Public Domain

text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-8920.
    No. 2011-OB-1973.
    Supreme Court of Louisiana.
    July 1, 2014.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| ¶ This court previously denied petitioner’s application for admission to the practice of law based on character and fitness concerns. In the instant application, petitioner has again sought admission.

We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E). In particular, we find petitioner has not produced clear and convincing evidence that his character has been rehabilitated from the long record of serious misconduct which prompted us to deny his first application for admission. Based upon this finding, we conclude petitioner does not possess the requisite good moral character to practice law in Louisiana.

Accordingly, it is ordered that the application for admission be and hereby is denied.

ADMISSION DENIED.

HUGHES, J.,

dissenting.

hi respectfully dissent and would grant admission.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. Vincent JORDAN.
    No. 2013-KA-0807.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 23, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).

      . Mr. Jordan sought supervisory review, but this court denied his writ application, noting he would have an adequate remedy on appeal if he was convicted. State v. Jordan, unpub., 2012-0811 (La.App. 4 Cir. 6/11/12), writ denied 2012-1458 (La.6/25/12), 92 So.3d 341.

   MADELEINE M. LANDRIEU, Judge.

_JjThe defendant, Vincent Jordan, appeals his conviction of possession of cocaine and his sentence of four years imprisonment at hard labor. For the reasons that follow, we affirm.

STATEMENT OF CASE

On February 14, 2012, the State filed a bill of information charging Mr. Jordan with one count of possession of cocaine, a violation of La. R.S. 40:967(0(2). He pled not guilty. The trial court denied his motions to suppress and found probable cause to substantiate the charge. At the conclusion of trial on June 25, 2012, the jury found Mr. Jordan guilty as charged.

On July 27, 2012, the trial court denied Mr. Jordan’s motion for new trial, sentenced him to four years at hard labor with credit for time served, and granted his motion for appeal. This timely appeal followed.

UFACTS

A confidential informant advised the police that Mr. Jordan was selling drugs and delivering them in a white car. On December 22, 2011, Mr. Jordan was the seller in a controlled buy set up by the Major Narcotics Unit of the New Orleans Police Department (“NOPD”). After the buy, Det. Derrick Burke and other officers conducted surveillance of Mr. Jordan. The detective observed Mr. Jordan driving a white Lincoln town car and being followed by someone in a tan Mercedes-Benz. Mr. Jordan drove to 1753 N. Dupre Street and parked in the driveway. He exited his vehicle carrying a Kool cigarette package in his right hand and entered the rear of the house, which appeared abandoned.

After remaining in the house a few moments, Mr. Jordan came out and was no longer carrying the Kool cigarette package. He then got behind the wheel of the Mercedes-Benz and drove away with a female passenger.

Detectives Burke and Ricky Jackson went inside and searched the house. With the assistance of a police canine, Det. Jackson found a Kool cigarette package that contained powdered cocaine in a plastic bag hidden in a roll of roofing material. Det. Jackson photographed the interior and exterior of the house, and he noted that one of the photos depicted a 2009 New Orleans Department of Safety and Permits placard mounted on an interior window pane. He stated that the house was abandoned. Leaves and debris littered the floor of the house and an unhinged door was propped against the building. Clear plastic bags were also recovered from the house. After the cocaine was discovered, Det. Jackson radioed other officers to alert them.

| oSgt. Jeff Sislo testified that he had set up the surveillance of Mr. Jordan based upon the information received from the confidential informant. After Mr. Jordan exited the house on N. Dupre Street, Sgt. Sislo followed him to an apartment complex in New Orleans East. Mr. Jordan parked inside the apartment complex gate and engaged in a brief conversation with another male. Meanwhile, Det. Jackson notified Sgt. Sislo of the cocaine discovery. When Mr. Jordan left the apartment complex, Sgt. Sislo stopped him, advised him of his rights and placed him under arrest for possession of cocaine. A search of Mr. Jordan’s pants pocket produced $324.00. Thereafter, Sgt. Sislo relocated Mr. Jordan to 1753 N. Dupre Street for processing by Detectives Burke and Jackson.

Det. Jackson also Mirandized Mr. Jordan. After executing a waiver of rights form, which was introduced into evidence, Mr. Jordan admitted to the detective that the cocaine found in the abandoned house belonged to him.

Mr. Leroy Smith testified that he was the owner of 1753 N. Dupre Street, and that he had known Mr. Jordan for a number of years. Mr. Smith testified that he had given Mr. Jordan permission to work on his car at the property. On the night of Mr. Jordan’s arrest, Mr. Smith saw the police walking on his property but did not speak to them.

ERRORS PATENT

A review for errors patent on the face of the record reveals one. The record indicates that the trial judge sentenced Mr. Jordan immediately after denying his motions for post-verdict judgment of acquittal and new trial. La.C.Cr.P. art. 873 states that if a motion for new trial or motion in arrest of judgment is filed, sentence shall not be imposed until at least twenty-four hours after the motion is denied, unless the defendant waives the delay or pleads guilty. A defendant may | ¿implicitly waive the twenty-four hour delay by announcing his readiness for sentencing. State v. Foster, 2002-0910, p. 2 (La.App. 4 Cir. 12/11/02), 834 So.2d 1188, 1191.

In this case, after denying the motions but before imposing sentence, the trial judge asked defense counsel if there was anything further prior to sentencing. Defense counsel responded negatively, indicating that his client was ready for sentencing. Thus, defense counsel waived the delay. See State v. Harrison, 2008-1110, p. 10 (La.App. 4 Cir. 6/25/09), 16 So.3d 447, 455. Accordingly, this error is harmless.

DENIAL OF MOTION TO SUPPRESS

Mr. Jordan assigns error to the trial court’s denial of his motion to suppress the evidence. He argues the evidence was tainted by the warrantless search conducted at 1753 N. Dupre Street, and that the State failed to produce evidence to support its contention that he had no right to be in the N. Dupre Street house.

The Fourth Amendment protects persons against unreasonable searches and seizures. See Vemonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 2390, 132 L.Ed.2d 564 (1995) (“As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is reasonableness’.”). For the police to violate a defendant’s Fourth Amendment rights, the defendant must have had a “reasonable expectation of privacy,” which involves both a person’s subjective expectation of privacy and an expectation that society is prepared to recognize as “reasonable.” See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, the pertinent inquiry is: “the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which |flhe seeks to challenge.” Raleas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). To obtain the remedial benefits of a Fourth Amendment violation through the suppression or exclusion of evidence, the defendant must establish not only that the search was illegal, but also that he had “a legitimate expectation of privacy” in the premises searched. See Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980) (citing Raleas, 439 U.S. at 131, n. 1, 99 S.Ct. at 423, n. 1).

When a district court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 280-81.

Initially, because Mr. Jordan did not own the N. Dupre Street property, there is a question as to whether he has standing under either state or federal law to contest the admissibility of the evidence seized by the NOPD. The State denies that Mr. Jordan has standing because he neither owned nor had permission to enter the house, and he therefore had no objectively reasonable expectation of privacy in the contraband hidden in the house. Mr. Jordan, on the other hand, denies that the property was abandoned, maintaining instead that it was undergoing renovation. Further, he maintains that the owner gave him permission to enter the house, and consequently, that he had an expectation of privacy in the premises searched.

The facts established in the suppression hearing do not support Mr. Jordan’s argument. Mr. Jordan did not offer any evidence to prove that he resided in the house in which the drugs were seized or that he had the owner’s permission to enter the house. In fact, in his writ application seeking reversal of the denial of his motion to suppress the evidence, the defendant conceded “that he presented no | fievidence at the motions hearing to directly support [his] position.” Moreover, the transcript of the trial testimony of Mr. Leroy Smith, the property owner, does not support Mr. Jordan’s contention that he had a reasonable expectation of privacy in the dwelling:

Q .... did you give [the defendant] any permissions regarding the use of your property on Dupre Street?
A. Yes. He and others in the neighborhood — the fellow that does — he’s a mechanic and he works on my vehicle, as well as a few other tenants in the neighborhood, like specifically the one right behind me, so it’s convenient for him to work in my yard.
Q. Did you give [the defendant] permission to store cocaine in your house on North Dupre?
A. No.
Q. Did you know that he was keeping cocaine in your house on North Dupre? A. Of course not.
Q.... The Kool pack of cigarettes that was located in your house that is behind the one you actually live in, was that cocaine yours?
A. No, ma’am.

As the record demonstrates, Mr. Jordan failed to establish that he had an expectation of privacy in the premises searched. There is no evidence that Mr. Jordan either lived there or that Mr. Smith gave him permission to enter the house. Mr. Smith’s testimony establishes that he gave Mr. Jordan permission to work on his car on the property, not to enter the house. Moreover, a defendant’s expectation of privacy, namely, that he is entitled to place illegal contraband onto the property |7of another without government intrusion, is not recognized by society as reasonable. See State v. Robertson, 557 So.2d 315 (La.App. 4th Cir.1990) (no expectation of privacy inside an abandoned house).

Accordingly, the trial court did not abuse its discretion by denying the motion to suppress. The defendant did not show that he had permission to be inside the house nor that he had an expectation of privacy in storing contraband in the house.

This assignment of error has no merit.

ADMISSIBILITY OF EVIDENCE

Mr. Jordan contends that the trial court erred by refusing to allow him to introduce evidence that would have discredited Detectives Burke’s and Jackson’s testimony that Mr. Jordan had confessed to owning the cocaine recovered from the abandoned house. The evidence Mr. Jordan sought to have admitted was the anticipated testimony of Mr. Leroy Smith that he had heard Mr. Jordan deny ownership of the cocaine and demand that the police test the cigarette pack for fingerprints. The State objected to Mr. Smith’s anticipated testimony on the basis of hearsay, and the trial court sustained the objection.

Generally, any out-of-court statement of the accused constitutes hearsay unless subject to an exception. Such a statement may be admissible as an exception to the hearsay rule if it qualifies as an admission against interest. However, a defendant’s own self-serving, exculpatory statements are inadmissible hearsay. State v. Taylor, 31,227, p. 7 (La.App. 2 Cir. 10/28/98), 720 So.2d 447, 451; State v. Freeman, 521 So.2d 788, 786 (La.App. 2d Cir.1988).

|sIn the trial court, the defense argued that Mr. Smith’s testimony was not hearsay because it was not being offered to prove the truth of the matter asserted. Defense counsel further argued that the testimony was admissible impeachment evidence against Det. Burke’s and Det. Jackson’s testimony that Mr. Jordan had admitted the cocaine belonged to him. The trial court decided that Mr. Smith’s anticipated testimony was an inadmissible self-serving exculpatory statement and prohibited its introduction into evidence at trial.

Mr. Jordan clearly intended to use the out-of-court statement for its exculpatory value. Therefore, the statement was offered to prove the truth of the matter asserted and clearly is hearsay. See La. C.E. arts. 801A(1) and 801C.

Mr. Jordan alternatively argues that his Sixth Amendment right to present a defense supersedes Louisiana’s hearsay rules. He cites Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), in support of this position.

We reject this argument. Chambers is not applicable to the instant situation. Chambers involved a particular set of factual circumstances based upon which the U.S. Supreme Court found that the combined effect of the Mississippi’s voucher rule and hearsay rule denied the defendant a trial “in accord with traditional and fundamental standards of due process.” Id., 410 U.S. at 302, 93 S.Ct. at 1049. The Court noted that “where constitutional rights directly affecting |sthe ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. However, the Chambers Court expressly limited its holding to the facts and circumstances presented in that case. Id., 410 U.S. at 303, 93 S.Ct. at 1050.

The facts in the present case are completely distinguishable from those in Chambers. A hearsay statement is neither critical nor even necessary to a defendant’s defense where the defendant is the declarant of the statement and is available to testify in his own behalf. Moreover, for the hearsay to be admissible under Chambers, it must be not only critical but also reliable. Id., 410 U.S. at 298, 93 S.Ct. at 1047. In this case, Mr. Jordan’s unverified, uncross-examined, self-serving statement would not meet the Chambers standard of reliability. See Gacy v. Welbom, 994 F.2d 305, 316 (7th Cir.1993) (“No court has extended [Chambers v. Mississippi ] ... to require a state to admit defendant’s own out of court words ... ”). The trial court therefore did not abuse its discretion by precluding Mr. Smith from testifying about the statement.

This assignment of error lacks merit.

DENYING THE RIGHT TO BACK-STRIKE

By a third assignment, Mr. Jordan complains that the trial court erred by not allowing him to backstrike prospective jurors during the jury selection process.

Mr. Jordan asserts that after peremptory challenges were exercised and a panel of six jurors was chosen, defense counsel noted for the record that the trial judge had previously denied the defendant’s request to backstrike potential jurors. “Counsel then added: These are not the jurors that we would have picked.” The hftCourt responded, “Very well. And I would note Defense objection.” Based upon this colloquy, Mr. Jordan argues on appeal that the trial judge denied his request to reserve two peremptory strikes to use as baekstrikes.

In opposition, the State submits that the defense failed to preserve this issue for appellate review because at the time it objected to the jury composition, it did not identify any juror whom it wished to back strike. The State emphasizes that only after the jury’s verdict, in his motion for new trial, did Mr. Jordan first identify two jurors whom he said he would have back-struck but for the trial court’s error.

To the extent the trial court refused to allow the defendant to backstrike, it erred. The statutory right to exercise peremptory challenges at any time before the jury panel is sworn has long been recognized. See State v. Watts, 579 So.2d 931 (La.1991); see also La.C.Cr.P. arts. 788, 790, and 795 B(l). Moreover, Louisiana Code of Criminal Procedure article 799.1, added in 2006, codifies the Watts holding.

However, this issue has not been preserved for appellate review. In State v. Hailey, 2002-1738 (La.App. 4 Cir. 9/17/03), 863 So.2d 564, the defendant did not identify any juror whom he wished to backstrike until the hearing on his motion for new trial. Id., p. 6, 863 So.2d at 567. This court concluded that a contemporaneous identification of an objected-to juror upon asserting the right to backstrike was essential to preserve the backstrike claim for review because [, ¶ otherwise the defense could “gamble upon receiving a favorable jury verdict, and then, upon the return of an unfavorable verdict, scour the voir dire transcript for jurors whom he can claim he would have baekstruck.” Id., p. 8, 863 So.2d at 569. See also State v. Lewis, 2012-1021 (La.3/19/13), 112 So.3d 796.

This assignment of error has no merit.

EVIDENCE OF PRIOR CRIMINAL CONDUCT

In his final assignment, Mr. Jordan complains that the trial court imper-missibly allowed the State to introduce evidence of narcotics transactions conducted by him prior to his arrest, in violation of La. C.E. art. 404 B(l). Mr. Jordan maintains that the evidence was unduly prejudicial because the State’s sole purpose in introducing it was to lure the jury into believing that the cocaine in the cigarette pack must belong to Mr. Jordan because of his prior involvement with drugs. Mr. Jordan specifically points to Det. Jackson’s testimony explaining that the defendant had been under surveillance prior to his arrest because police had twice purchased drugs from him out of the 1753 N. Dupre Street house, and to Sgt. Sislo’s testimony that the police had been investigating the defendant for selling heroin in New Orleans.

Mr. Jordan filed a pre-trial motion in limine seeking to bar the State from introducing evidence of his other uncharged drug activity. The trial court granted the motion; the State sought supervisory writs; and this court denied the State’s application. At trial, when the State attempted to elicit the information from its witnesses, the defense objected. After a sidebar discussion, the judge allowed the State to introduce the other crimes evidence pursuant to the State’s urging that the |12defense had “open[ed] the door.” On appeal, the defendant argues that this ruling was improper. We disagree.

Mr. Jordan maintains on appeal that the law prohibits the introduction of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. La. C.E. art. 404 B(l); see also, State v. Henderson, 2012-2422 (La.1/4/13), 107 So.3d 566. Alternatively, he contends that even if the prior bad acts evidence is otherwise relevant, it is inadmissible because its prejudicial effect outweighs its probative value. The State counters with the “open door” argument, and additionally argues that the evidence was admissible under the res gestae exception to article 404.

During its cross-examination of the detectives, the defense questioned the evidence relied upon to support the defendant’s arrest, whether the police had a warrant to search 1753 N. Dupre Street, and whether the police had provided false information to make the arrest. On redirect examination, the State elicited information from the detectives explaining that Mr. Jordan had been under surveillance prior to his arrest; that the officers had not had a search warrant; and that the officers had not falsified their report indicating that Mr. Jordan had made a statement admitting his ownership of the eo-caine. Thus, the State merely clarified the facts after the defense had broached the subject.

Once the defense opens the door in cross examination on a subject, it becomes a proper subject for redirect. “The defense may not approach a prohibited area ... and then close the door to clarification by the State.” State v. Hugle, 2011-1121, p. 23 (La.App. 4 Cir. 11/7/12), 104 So.3d 598, 615 (quoting State v. Steward, 483 So.2d 155, 157 (La.App. 4th Cir.1986)). Thus, defense counsel’s questions on cross-examination opened the door for the other crimes evidence.

11sMoreover, the evidence was admissible under the res gestae exception. In State v. Taylor, 2001-1638, pp. 10-11 (La.1/14/03), 838 So.2d 729, 741-42, the Louisiana Supreme Court explained this exception:

Generally, courts may not admit evidence of other crimes to show defendant is a man of bad character who has acted in conformity with his bad character. However, under La. C.E. art. 404(B)(1) evidence of other crimes, wrongs or acts may be introduced when it relates to conduct, formerly referred to as res ges-tae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

Other crimes evidence is admissible when it is related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. State v. Boyd, 359 So.2d 931, 942 (La.1978). In the present case, because Mr. Jordan’s prior bad acts occurred in close temporal proximity to his arrest and, in fact, triggered the surveillance that led to the arrest, this evidence was admissible pursuant to the res gestae exception. The | MState did not introduce the evidence to show the defendant was a bad person but to explain the sequence of events leading up to Mr. Jordan’s arrest.

Accordingly, the trial court did not err by admitting this evidence. Even if the other crimes evidence had been erroneously admitted however, the error would be harmless given the substantial evidence of Mr. Jordan’s guilt.

This assignment of error has no merit.

CONCLUSION

For the reasons stated, Mr. Jordan’s conviction and sentence are affirmed.

AFFIRMED.

      . Det. Burke identified the Kool package at trial and also identified the defendant in court.

      . State v. Jordan, unpub., 2012-0811, p. 7 (La.App. 4 Cir. 6/11/12).

      . La. C.E. art. 607 provides that a defendant may attack the credibility of a witness through the use of extrinsic evidence that contradicts the witness' testimony, provided that a proper foundation is laid for such evidence.

      . Although the defendant's statement to the police contradicts the detectives' rendition of fact, the statement is not a prior inconsistent statement by either of the detectives and therefore not impeachment evidence. La. C.E. art. 607 D(2).

      .In Chambers, a murder defendant called a witness who had previously confessed to the murder. When the witness repudiated the confession, the defendant was prohibited from impeaching the witness’s testimony with the prior confession because of the State's voucher rule, which barred parties from impeaching their own witnesses. The defendant also was prohibited from presenting the testimony of three other witnesses who had heard the first witness make self-incriminating statements because the State’s hearsay rules did not include an exception for statements against penal interest.

      . Backstriking of jurors is authorized by La. C.Cr.P. art. 799.1, which provides:
      Notwithstanding any other provision of law to the contrary, and specifically notwithstanding the provisions of Article 788, in the jury selection process, the state and the defendant may exercise all peremptory challenges available to each side, respectively, prior to the full complement of jurors being seated and before being sworn in by the court, and the state or the defendant may exercise any remaining peremptory challenge to one or more of the jurors previously accepted. No juror shall be sworn in until both parties agree on the jury composition or have exercised all challenges available to them, unless otherwise agreed to by the parties.

      . State v. Jordan, unpub., 2012-0952 (La.App. 4 Cir. 6/25/12).


author: PETTIGREW, J. McCLENDON, J.,

text:
    LOUISIANA BOARD OF ETHICS In the Matter of EMPOWER PAC.
    No. 2013 CA 1841.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.
    Aneatra P. Boykin, Baton Rouge, LA, for Appellant, Louisiana Board of Ethics.
    John W. Perry, Jr., Daniel J. Balhoff, Baton Rouge, LA, Frank X. Neuner, Jr., Lafayette, LA, for Appellee, Empower PAC.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   PETTIGREW, J.

| ¡/This is an appeal by the Louisiana Board of Ethics (the Board) of a final decision of the Ethics Adjudicatory Board (EAB) that reversed an automatic late fee of $1200.00 that was assessed against Empower PAC (E-PAC) for the untimely filing of its campaign finance report, in an alleged violation of the Campaign Finance Disclosure Act (CFDA). We find that the EAB’s action — reversing the fine assessed by the Board — was based on a factual finding that E-PAC’s failure to timely file its financial report was not knowingly done. Because the Board is only entitled to seek appeals on alleged errors of law, no appeal lies from the EAB’s decision. Accordingly, the appeal is dismissed.

BACKGROUND FACTS, PROCEDURAL HISTORY AND APPLICABLE LAW

E-PAC is a political action committee affiliated with the Greater Lafayette Chamber of Commerce. A political committee is required, by La. R.S. 18:1491.6(A) to file campaign finance disclosure reports; E-PAC elected to file such reports on a monthly basis. Pursuant to La. R.S. 18:1505.4, the treasurer or chairman of a political committee who knowingly fails to file or who knowingly fails to timely file any such reports as required may be assessed a civil penalty for each day until such report is filed. | ^Further, pursuant to La. R.S. 18:1505.1 , failure to submit the required reports shall constitute a violation of the CFDA, and failure to submit the report within three days after the final date for filing shall be presumptive evidence of intent to not file the report.

Pursuant to La. R.S. 18:1491.6(1)0.), E-PAC’s financial disclosure reports are due no later than the tenth day of the month. E-PAC asserts that since its inception in 2012, it has filed all monthly reports on a timely basis, with the exception of the August 2012 report. E-PAC asserts that it has always filed its reports pursuant to La. R.S. 18:1485 by fax, and has been successful in doing so, until the August 2012 incident that forms the basis of this appeal. E-PAC further asserts that the task of fax-filing the report fell to Samantha Leone, the Information Coordinator at the Greater Lafayette Chamber of Commerce, at the direction the Chairman of E-PAC, Mr. Trey Hill, and its treasurer, Ms. Jan Swift.

On August 7, 2012, Mr. Hill and Ms. Swift signed E-PAC’s monthly report, which was due to be filed three days later, on August 10, 2012. They then gave the report to Ms. Leone to file. According to Ms. Leone, she attempted to fax-file the report as she customarily did, but for unknown reasons, the fax never reached its intended destination.

|4On August 14, 2012, the Board issued a notice of delinquency to E-PAC informing it that its August report, which was due by August 10, 2012, had not been received, E-PAC responded in an attempt to remedy the situation by filing its report on August 16, 2012.

On August 24, 2012, the Board issued a Late Fee Assessment Order to E-PAC, noting that E-PAC’s report, filed August 16, 2012, was six days late, and assessed an “automatic” late fee of $200.00 per day, or $1200.00, against E-PAC, its Chairperson, Mr. Hill, and its treasurer, Ms. Swift. E-PAC sought a waiver of the assessment from the Board, attempting to explain the unknown reason that the fax-filing attempt on August 10, 2012 was unsuccessful; however, the Board denied its request for a waiver, asserting it had no power in equity and that once a violation of the CFDA was established, the Board was required to assess the full penalty provided by law.

On November 1, 2012, E-PAC appealed the assessment, and a hearing on the matter was scheduled before the EAB on February 8, 2013.

Following that hearing, the EAB rendered a Decision and Order on March 6, 2018, finding that “[t]he Board of Ethics proved that Empower PAC failed to timely file the report, but no civil penalty may be assessed because Empower PAC did not knowingly fail to timely file the report,” as required by La. R.S. 18:1505.4(A)(1). Under the section entitled “Findings of Fact,” the EAB noted that prior to being notified by the Board that the report had not been filed, the chairperson, Mr. Hill, and the treasurer, Ms. Swift, believed that the report had been filed as required. It also noted that since the report had been dated and approved by Mr. Hill and Ms. Swift on August 7, 2012, and given to Ms. Leone, the employee whose task it was to fax the report, they were all unaware that the faxed report had not been received by the Board. Thus, the EAB reversed the late fee of $1200.00 that had been assessed against E-PAC.

On March 18, 2013, the Board filed a request for rehearing with the EAB. In denying the rehearing, the EAB noted that E-PAC filed an affidavit from an employee (Ms. Leone) who contends she transmitted the report by fax, and significantly, she was not one of the persons responsible for filing the report under the CFDA. According to the LEAR, this was sufficient to establish that E-PAC did not knowingly fail to file the report. The EAB further noted that it was irrelevant whether the report was actually transmitted by Ms. Leone, or even whether the affiant was truthful that she had transmitted the report, but rather, what was relevant was whether the responsible parties in E-PAC knowingly failed to file the report.

This appeal by the Board followed.

THE APPEAL

The Board asserts that it has taken this appeal pursuant to the authority set forth in La. R.S. 42:1142(A)(2)(a). That statute, which governs appeals falling under the Code of Governmental Ethics provides:

Upon the unanimous vote of its members present and voting, the Board of Ethics may appeal a final decision of the Ethics Adjudicatory Board to the Court of Appeal, First Circuit, within thirty days after the signing and transmission of the notice of the final decision, or if a rehearing is requested, within thirty days after the transmission of the notice of the decision of the Ethics Adjudicatory Board on the rehearing. Only questions of law In a final decision may be appealed pursuant to this Paragraph, and the appeal shall be limited to the record created at the hearing before the adjudicatory panel of the Ethics Adjudicatory Board. For purposes of this Paragraph, “final decision” means the decision and order of the adjudicatory panel of the Ethics Adjudicatory Board on the final disposition of the entire matter the Ethics Adjudicatory Board was required to hear. (Emphasis added.)

On appeal, the Board argues that the EAB erred as a matter of law in conelud-ing that the evidence presented at the hearing established that E-PAC did not knowingly fail to file their campaign finance report in accordance with La. R.S. 18:1505.4(A)(1). However, we disagree with the Board’s characterization of the EAB’s conclusion as being a matter of law, because the conclusion that E-PACs failure to file its report timely was not knowingly done is actually a finding of fact. We also disagree with the Board’s implication that the term “knowingly” requires a legal determination since the term is not | ^defined by statute, “Knowingly” is a common word that has basic and universal meaning. It need not be defined by the statute, nor does it require a conclusion as a matter of law. It is hardly disputable that the term “knowingly” means with knowledge about something. In this matter, E-PAC presented evidence concerning the manner in which the report was signed, approved, and given to a staff employee by the chairperson and treasurer of the committee, with directions to fax-file it, as E-PAC had customarily done in the past. But for reasons unknown, but presumably as a result of a computer or fax machine glitch, and unknown to those persons, the report did not reach its intended destination. The EAB concluded, based on the evidence, that E-PAC’s failure to timely file its report was not knowingly done. The finding that the chairperson and treasurer believed that their directions had been carried out by the staff member to whom the report and directions had been given, and who had previously accomplished the filing in the same manner, using the same procedure — as well as the ultimate conclusion that the failure to timely file the report was not knowingly done — is a factual determination, based on the evidence presented. Neither legal analysis nor statutory definition is necessary to reach or support such a finding.

Because the Board’s appeal is based solely on that factual finding, the appeal is impermissible, pursuant to La. R.S. 42:1142(A)(2)(a). Accordingly, the appeal must be dismissed.

ATTORNEY’S FEES AND COSTS

The aforementioned statute governing appeals of Code of Governmental Ethics matters, La. R.S. 42:1142(A)(2), also provides, in pertinent part:

(b) If the Board of Ethics does not prevail in the final disposition of its appeal, the Board of Ethics shall be responsible for the payment of reasonable attorney fees and court costs of the other party inclusive of all stages of litigation and appeal.
|7(c) The amount of attorney fees shall be determined by the court of appeal and shall be set forth in the court’s judgment.

LSA-R.S. 42:1142(A)(2)(b) and (c). In accordance therewith, since we dismiss the Board’s appeal, we hereby assess the Board with appeal costs in the amount of $203.75 and attorney’s fees in the amount of $1500.00.

APPEAL DISMISSED.

McCLENDON, J.,

dissents and assigns reasons.

|) While I recognize that the determination of whether one has acted with knowledge is a factual issue, what is required to establish said knowledge necessarily involves legal analysis and statutory interpretation. More specifically, the term “knowingly” in LSA-R.S. 18:1505.4A(1) is not defined by statute. Appellant argues that the term requires more than subjective knowledge and that a due diligence element should be read into the term. Regardless of whether one agrees or disagrees with this argument, it calls into question the proper application and interpretation of a statute, which is a question of law. See McKenzie v. Imperial Fire and Cas. Ins. Co., 12-1648 (LaApp. 1 Cir. 7/30/13), 122 So.3d 42, 46, writ denied, 13-2066 (La.12/6/13), 129 So.3d 534. Therefore, I am of the opinion that the Ethics Board has a right to appeal under LSA-R.S. 42:1142A(2)(a). Accordingly, I respectfully dissent.

      . That provision provides:
      A. The chairman of a political committee and the campaign treasurer of the committee, if any, shall be responsible for filing a report of all information required in this Section and R.S. 18:1491.7 with the supervisory committee at the times required in this Section. The political committee chairman and campaign treasurer of the committee, if any, shall certify, in each report, that the information contained in the report is true and correct to the best of their knowledge, information and belief, that no expenditures have been made and no contributions have been received that are not reported therein, and that no information required by this Part has been deliberately omitted.
      LA-R.S. 18:1491.6

      . In relevant part, La. R.S. 18:1505.4 provides:
      A. (1) Any candidate, the treasurer or chairman of a political committee, or any other person required to file any reports under this Chapter, who knowingly fails to file or who knowingly fails to timely file any such reports as are required by this Chapter may be assessed a civil penalty as provided in R.S. 18:1511.4.1 for each day until such report is filed.
      (2)(a) The amount of such penalty may be:

      (v) Two hundred dollars per day, not to exceed three thousand dollars, for the treasurer or chairman of any political committee supporting or opposing a candidate, other than a candidate’s principal or subsidiary campaign committee. ■

      .That provision provides:
      A. Failure to submit the reports required by this Chapter shall constitute a violation of this Chapter. Failure to submit any such report within three days after the final date for filing shall be presumptive evidence of intent not to file the report.
      La. R.S. 18:1505.1(A)

      . An affidavit of Ms. Leone dated February 5, 2013, which was submitted at the hearing in this matter and is included in the record before us, states that she attempted to fax-file the report on August 31, 2012. E-PAC asserts that the affidavit is incorrect in that Ms. Leone actually attempted to fax-file the report on August 10, 2012. We note that the date of the notice of delinquency was August 14, 2012, that E-PAC successfully filed its report on August 16, 2012, and the date of the Late Fee Assessment Order was August 24, 2012. In vacating the fine, the EAB noted that the actual filing date of the report was irrelevant to its determination at the conclusion of the hearing, because the operative factual finding underlying its ultimate determination was the knowing aspect of the untimely filing, and not the actual filing date. Notwithstanding, once E-PAC discovered die error in the affidavit that was made part of the record before this court, it filed a Motion to Supplement the record with a corrected affidavit dated February 4, 2014, wherein Ms. Leone attests that the actual date of her attempted fax-filing was August 10, 2012. Because we dismiss this appeal, because it impermissibly seeks review of a factual finding by the EAB, we deny the motion to supplement as moot. However, we do note that E-PAC actually filed its report on August 16, 2012, after receiving notice of delinquency and realizing the faxed report had not reached its intended destination. This fact gives credibility to E-PAC’s assertions that the date in the original affidavit was ip error, since it would be redundant and defy common sense for E-PAC to, again, file another untimely report on August 31, 2012.

      . The statute governing appeals of ethics matters was amended by Acts 2012, No. 607, § 1, effective June 7, 2012, and now allows appeals to this Court, but only as to questions of law.

      . We note that pursuant to La. R.S. 18:1505.1, the failure to submit the reports within three days after the final date for filing shall be presumptive evidence of the intent not to file the report. We also note the possibility that, if applicable, the question of whether the evidence presented was sufficient to rebut such presumption may be a legal question, and statutorily permissible for review on appeal. However, the Board did not raise the applicability of that presumption at the hearing before the EAB; thus, the legal question of whether the evidence was sufficient to rebut such presumption was never raised, nor determined. Therefore, it is not properly before us.