text:
    PENSACOLA BEACH, LLC, Appellant, v. AMERICAN FIDELITY LIFE INSURANCE COMPANY, et al., Appellees.
    No. 1D17-2439
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Robert O. Beasley, Phillip A. Pugh, and Dewitt D. Clark of Litvak Beasley Wilson & Ball, LLP, Pensacola, for Appellant.
    Linda A. Hoffman and Robert S. Rushing of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, Pensacola, for Appellee American Fidelity Life Insurance Company. No appearance for Appellee Pensacola Beach, Inc.
   Per Curiam.

DISMISSED . See Jensen v. Whetstine , 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) ("An order is not an appealable partial final order where there is a factual overlap between the pending claims and the claims resolved by the order.").

Wetherell, Rowe, and Jay, JJ., concur.


source: Caselaw Access Project

author: COHEN, C.J.

license: Public Domain

text:
    Michael PITCHER, Appellant, v. Susan SCHNEIDER, Appellee.
    Case No. 5D17-1937
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018
    Eduardo J. Mejias, of AAA Family Law, LLC, Altamonte Springs, for Appellant.
    Harley I. Gutin, Cocoa, for Appellee.
   COHEN, C.J.

Susan Schneider and Michael Pitcher are the unmarried parents of two minor children. Pitcher appeals a final judgment establishing paternity, raising several issues that all pertain to the trial court's determination of the time-sharing schedule for the parties' children. Pitcher acknowledges that there is no trial transcript or other recreation of the testimony and evidence presented below. However, he maintains that the trial court's legal errors are evident on the face of the final judgment and thus a transcript is unnecessary.

Pitcher's argument lacks merit. Without a transcript, "we cannot resolve the underlying factual issues in order to determine whether the trial court's judgment ... is without evidentiary support." See McQuade v. Holroyd, 208 So.3d 848 (Fla. 5th DCA 2017) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ). Indeed, having reviewed the record, as well as the extensive final judgment and parenting plan, we conclude that Pitcher has failed to carry his burden of demonstrating any error. See Applegate, 377 So.2d at 1152.

Nonetheless, we write to acknowledge the excellence of the trial court's final judgment of paternity entered in this case. The judgment is thorough, applies the correct legal standards, and is replete with fact-finding and analysis. Appellate courts are error correcting courts, and while Pitcher may not agree with the trial court's findings, "it is not the role of an appellate court ... to substitute its judgment for that of the trial court." See G.C. v. Dep't of Child. & Fams., 791 So.2d 17, 21 (Fla. 5th DCA 2001). Accordingly, the final judgment is affirmed in all respects.

AFFIRMED.

SAWAYA and EDWARDS, JJ., concur.


author: Per Curiam.

text:
    Sam T. SCHIFFMAN, Sr., Appellant, v. William SCHIFFMAN, Sr., Personal Representative, Estate of Morris E. Schiffman, Sr., Appellee.
    No. 1D17-5366
    District Court of Appeal of Florida, First District.
    March 1, 2018
    Sam T. Schiffman, Sr., pro se, Appellant.
    Jeffrey P. Whitton, Panama City, for Appellee.
   Per Curiam.

Appellant seeks review of an order denying a motion to compel and take depositions. The order is not a final order or an appealable, non-final order. Accordingly, Appellee's motion to dismiss the appeal is granted, and the appeal is dismissed for lack of jurisdiction.

Wetherell, Rowe, and Jay, JJ., concur.


author: PER CURIAM

text:
    STATE of Louisiana v. Calvin LEWIS
    No. 2017-OK-0081
    Supreme Court of Louisiana.
    October 18, 2017
    JEFFERSON PARISH DISTRICT ATTORNEY'S OFFICE, Hon. Paul D. Connick, Jr., District Attorney, Terry Michael Boudreaux, Charles Thomas Carr, III, Darren Anthony Allemand, For Applicant.
    Jesse Thomas Beasley, For Respondent.
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIFTH CIRCUIT, PARISH OF JEFFERSON
   PER CURIAM

On March 27, 2015, a Jefferson Parish Sheriff's deputy encountered a truck stopped in the middle of the roadway late at night. He found defendant inside attempting to restart the truck. Defendant, who smelled of alcohol and whose speech was slurred, explained that the truck had just stalled and would not restart. The deputy noticed that the truck's engine was still quite warm when he attempted to restart it with jumper cables. The truck could not be restarted, however, and was eventually towed away. There were no alcohol containers in or around the vehicle.

When defendant got out of the truck, he leaned on it to steady himself. Defendant was arrested after he failed field sobriety tests. At the Westwego Police Department, defendant registered a blood alcohol level of 0.19. After he was Mirandized , defendant claimed he drank one beer several hours earlier in the afternoon.

Defendant was charged with misdemeanor first-offense driving while intoxicated, La.R.S. 14:98. At trial, defendant denied he was in the truck attempting to restart it when the deputy arrived. Defendant claimed that he drank a half pint bottle of Wild Irish Rose after the vehicle stalled, threw the empty bottle into the grass, and he was just leaving to walk to his cousin's house for assistance when the deputy arrived. The trial court found him guilty as charged and sentenced him to serve 60 days in parish jail, suspended, 48 hours of in-home incarceration, and 11 months of probation.

In a split decision, the court of appeal reversed defendant's conviction and sentence. State v. Lewis , 16-0614 (La. App. 5 Cir. 12/19/16) (unpub'd). While recognizing that the State presented sufficient evidence that defendant was intoxicated, the majority of the panel found the circumstantial evidence insufficient to exclude the reasonable hypothesis of innocence advanced by defendant at trial, i.e., that he became intoxicated by drinking Wild Irish Rose after the vehicle stalled. In addition, the majority of the panel found that, although defendant was intoxicated when he repeatedly turned the key in the ignition, this did not constitute operation of the vehicle within the meaning of La.R.S. 14:98. In reaching that conclusion, the majority relied on jurisprudence from other jurisdictions where courts have found that when a vehicle is incapable of immediately being placed into motion, due to mechanical problems, a lack of gas, or other problems that cannot be easily overcome, the accused cannot be found to have operated the vehicle even if he attempts to start it.

Judge Gravois dissented, finding that defendant operated the vehicle within the meaning of La.R.S. 14:98 the moment he attempted to start the vehicle as the deputy approached. Moreover, Judge Gravois found that the trial court reasonably discounted defendant's testimony that he became intoxicated after the car stalled by drinking a small bottle of wine under the circumstances here because the vehicle's engine remained very warm and the deputies did not find an empty bottle of Wild Irish Rose in or near defendant's truck. We agree with the latter contention and find it unnecessary to address the former.

Under the due process standard of Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." When reviewing a conviction based upon circumstantial evidence, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded. See State v. Morris , 414 So.2d 320, 321-22 (La. 1982) (citation omitted); see also State v. Captville , 448 So.2d 676, 680 (La. 1984) ("When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt."). The reviewing court "does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion[; rather, the reviewing court] evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational factfinder could not 'have found proof of guilt beyond a reasonable doubt.' " Captville , 448 So.2d at 680 (emphasis in original; citation omitted).

Here, the court of appeal correctly found the evidence of defendant's intoxication to be clear. Although defendant could have consumed a half pint of Wild Irish Rose after his vehicle stalled, that hypothesis, after viewing all of the evidence in the light most favorable to the prosecution-including the deputy's observation of the warm engine, defendant's level of intoxication in comparison to the quantity of alcohol he claimed to consume, and his changed version of events between the night of the arrest and trial-is not so reasonable that a rational factfinder could not have found proof of guilt beyond a reasonable doubt that defendant operated his vehicle while intoxicated until it stalled.

To "operate" a vehicle in Louisiana, a person must exercise or have exercised "some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion." State v. Rossi , 98-1253, p. 1 (La. App. 5 Cir. 4/14/99), 734 So.2d 102, 102-03. It is not necessary that the actions have any effect or cause the vehicle to move. See State v. Jones , 97-1687, pp. 3-4 (La. App. 1 Cir. 5/15/98), 714 So.2d 819, 821 ("operating" shown when deputy awoke a drunken driver, asleep at the wheel of a car parked in a convenience store parking lot with its engine running, and the driver revved the motor and tried to shift); State v. Brister , 514 So.2d 205, 207 (La. App. 3 Cir. 1987) ("The term 'operate' includes merely controlling the vehicle. Doing anything with regard to the mechanism of a motor vehicle, whether it has any effect on the engine or not, is also included in the term 'operate.' ").

While the question of whether defendant's attempts to start a vehicle that could not be started while he was intoxicated constituted operating the vehicle in the context of La.R.S. 14:98 presents an interesting question of law, the trial court found defendant guilty after making a credibility determination and on the basis of the State's evidence that defendant actually drove the car while intoxicated before it stalled. As discussed above, that determination appears reasonable, and therefore the legal question need not be addressed at this juncture. Finding the evidence sufficient, when viewed in the light most favorable to the prosecution under the due process standard of Jackson v. Virginia , for the trial court to reasonably conclude defendant operated his vehicle while intoxicated until it stalled, we reverse the court of appeal and reinstate defendant's conviction and sentence.

REVERSED

      The popularity of cheap fortified wines evidently began during the Great Depression. See Kevin Zraly, Kevin Zraly's American Wine Guide (2006) p. 38 ("Prohibition produced the Roaring Twenties and fostered more beer and distilled-spirit drinkers than wine drinkers, because the raw materials were easier to come by. But fortified wine, or medicinal wine tonic-containing about 20 percent alcohol, which made it more like a distilled spirit than regular wine-was still available and became America's number one wine. Thunderbird and Wild Irish Rose, to name two examples, are fortified wines. American wine was soon more popular for its effect than its taste; in fact, the word wino came into use during the Depression to describe those unfortunate souls who turned to fortified wine to forget their troubles."). Like other flavored fortified wines in its niche-Night Train and Thunderbird-Wild Irish Rose is memorialized in song.


text:
    STATE of Louisiana v. Keith C. KISACK
    No. 2016-K-0797
    Supreme Court of Louisiana.
    October 18, 2017
    Christopher Albert Aberle ; For Applicant
    ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, Hon. Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Kyle C. Daly; For Respondent
   PER CURIAM

This case presents the questions of whether defense counsel waived the sentencing delay required by La.C.Cr.P. art. 873, and whether the State proved that less than ten years elapsed between defendant's most recent predicate offense and the present offense as required by La.R.S. 15:529.1(C). Finding that the State carried its burden of proof here, we nonetheless emphasize La.R.S. 15:529.1(C) imposes a requirement on the State to prove beyond a reasonable doubt that the 10-year period has not elapsed in a habitual offender adjudication in the district court. In addition, we direct the Fourth Circuit to join the other courts of appeal in recognizing that the State's failure to carry that burden is an error patent on appeal. However, we also find that the court of appeal disregarded the plain language of Article 873, which requires an explicit waiver of the statutory sentencing delay, by surmising defense counsel "implicitly waived" the delay by participating in the sentencing hearing. Therefore, we vacate the habitual offender adjudication and remand for further proceedings.

The facts of this case are straightforward. An employee of the Orleans Parish Sheriff's Office, while conducting a search of Tier C2 of Orleans Parish Prison, discovered a cell phone secreted in a crevice of the wall of the day room. An investigation, including a warrantless search of the phone's contents, revealed that defendant used the phone to send text messages and take "selfies" while housed on that tier.

Defendant was charged by bill of information with possession of contraband while in a penal institution, La.R.S. 14:402(E)(7). An Orleans Parish jury found defendant guilty as charged. The State filed a habitual offender bill of information, alleging defendant to be a fourth-felony offender. Defendant moved for a new trial and to quash the habitual offender bill, which the trial court denied before commencing the hearing on the habitual offender bill of information. The trial court found defendant to be a fourth-felony offender and sentenced him to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

The Fourth Circuit affirmed defendant's conviction and affirmed the sentence as amended. State v. Kisack , 15-0083 (La. App. 4 Cir. 3/30/16), 190 So.3d 806. The panel noted that defendant was sentenced on the same date that his motion for new trial was denied. The panel found, however, that the 24-hour statutory sentencing delay was implicitly waived when defense counsel participated in the sentencing hearing. See Kisack , 15-0083, p. 3, 190 So.3d at 809 ("[D]efense counsel's argument at the sentencing hearing constituted an implicit waiver of the delay.").

The panel rejected two additional assignments of error pertinent to the present application. First, the panel found that no warrant was required to search the contents of the cell phone. The panel distinguished Riley v. California , 573 U.S. ----, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), in which the Supreme Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional, on the basis that defendant was incarcerated and therefore had a reduced expectation of privacy. See Kisack , 15-0083, p. 5, 190 So.3d at 810 ("[Defendant] had no reasonable expectation of privacy as to a cell phone hidden in a crevice in the day room wall."). Second, the panel found that 10 years had not elapsed between defendant's most recent predicate offense (i.e., a federal conviction for being a felon in possession of a firearm) and the present offense. While acknowledging that it is the State's burden at a habitual offender adjudication to prove the predicate offenses qualify in accordance with La.R.S. 15:529.1(C), and further recognizing that the State did not establish in the district court when defendant was released from federal prison or supervision, the court of appeal inferred from the limited information available that the 10-year period could not have expired when defendant committed the present offense. See Kisack , 15-0083, p. 7, 190 So.3d at 811-12 ("Accordingly, even if [defendant] was released from federal prison immediately after the sentence was imposed, he would have been on supervised release for three years ..., and the ten year cleansing period would not have been expired when the present offense was committed ....").

Although defendant argues Riley v. California , which involved the warrantless search of a cell phone seized during an arrest that flowed from a traffic stop, applies here such that the trial court should have suppressed the results of the warrantless search of the contraband cell phone, it is generally recognized that prisoners have a reduced expectation of privacy. See, e.g. , Hudson v. Palmer , 468 U.S. 517, 525-26, 104 S.Ct. 3194, 3199-3200, 82 L.Ed.2d 393 (1984) ("[S]ociety is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell."); see also State v. Williams , 490 So.2d 255, 260 (La. 1986) (reaffirming State v. Patrick , 381 So.2d 501 (La. 1980), which rejected the notion that a "work-release inmate, while out of prison during the day, has a reasonable expectation of privacy that would require probable cause before deputies can conduct a pat down search of the inmate"). The federal courts have also declined to extend Riley v. California to prisoners. See, e.g. , United States v. Boyce , Criminal Action No. 2014-00029 (D.V.I. 2015), 2015 WL 856943 *6 n.16 ("Accordingly, the Court will not expand the scope of Riley v. California to warrantless searches of cell phones confiscated as prison contraband."). Defendant here offers no convincing reason why this court should do so.

The Fourth Circuit also scrutinized the record in an effort to ascertain whether too much time had elapsed between the commission of the present offense and the expiration of correctional supervision for the previous conviction. We note that the Fourth Circuit is an outlier with regard to the State's obligation to prove in the district court that too much time has not elapsed, in accordance with La.R.S. 15:529.1(C), before a defendant can be adjudicated as a habitual offender. Because the Fourth Circuit does not view the State's failure to carry its burden of proof as an error patent, the question of whether too much time elapsed is often not addressed unless assigned as error on appeal when the record may be inadequate to answer it.

In contrast with the Fourth Circuit, the First, Second, and Fifth Circuits review the State's proof with regard to the requirements of La.R.S. 15:529.1(C) as an error patent on the face of the record. See, e.g. , State v. Robinson , 47,427, p. 7 (La. App. 2 Cir. 10/3/12), 105 So.3d 751, 755 (State's failure to prove that the cleansing period has not expired is error patent on the face of the record); State v. Abdul , 11-0863, pp. 28-29 (La. App. 5 Cir. 4/24/12), 94 So.3d 801, 820-21 (since the sufficiency of the proof of the cleansing period bears on defendant's due process rights, courts can review the issue on appeal as an error patent); State v. Baker , 452 So.2d 737, 745-46 (La. App. 1 Cir. 1984) (reviewing defendant's claim that second felony offender sentence was improper without demonstrating the cleansing period; "Since this allegation, if proved, would be error patent on the face of the record under La.C.Cr.P. art. 920, we find it necessary to review this additional allegation.").

We find the approach of the First, Second, and Fifth Circuits more sound. In the Fourth Circuit, prosecutors have less incentive to devote finite resources to proving that the time has not elapsed under La.R.S. 15:529.1(C), and defendants assert less often as a defense that time has run out under La.R.S. 15:529.1(C) until on appeal, when there is no longer an opportunity for the State to present evidence. To remedy this unfortunate situation, we adopt the views of the First, Second, and Fifth Circuits and require the State to prove as an element of the habitual offender adjudication that the time afforded by La.R.S. 15:529.1(C) has not elapsed, and we further find that the absence of such proof in the district court must be recognized as an error patent on appeal.

However, we also find that the State carried its burden of proof in the district court here. Defendant was convicted of possessing contraband in a penal institution between October 11, 2011 and December 26, 2011. The State established at the habitual offender adjudication that defendant pleaded guilty on February 7, 2001, in federal court to the charge of felon in possession of a firearm and was sentenced to 96 months imprisonment in a federal facility plus three years of supervised release. The potential that defendant could have received an early release before October 11, 2001, and also been relieved of his probation obligation by receiving an executive pardon does not suffice to establish a reasonable doubt.

In addition, the Fourth Circuit found that the district court did not observe the sentencing delay required by La.C.Cr.P. art. 873 before sentencing defendant to the maximum term of life imprisonment as a fourth-felony offender for possession of a contraband cell phone while in a penal institution. See La.R.S. 14:402(E)(7) ; La.R.S. 15:529.1(A)(4)(a). Sentencing occurred almost immediately after the denial of defendant's motion for new trial. Article 873 provides (emphasis added):

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

The court of appeal, however, found that "defense counsel's argument at the sentencing hearing constituted an implicit waiver of the delay." Kisack , 15-0083, p. 3, 190 So.3d at 809.

While some circuits courts, predominantly the Fourth Circuit, have found that the statutory delay may be "implicitly waived" when a defendant announces he is ready for sentencing, see, e.g. , State v. Foster , 02-0910, p. 2 (La. App. 4 Cir. 12/11/02), 834 So.2d 1188 ("A defendant may implicitly waive the twenty-four hour delay by announcing his readiness for sentencing."), the waivers under the circumstances presented in those decisions are typically not so much implicit as expressly made (by announcing that defendant is ready to be sentenced) without being as fully articulated as they should perhaps have been. See, e.g. , State v. Celestain , 13-1262, pp. 11-13 (La. App. 4 Cir. 7/30/14), 146 So.3d 874, 881-82 (finding no error "because Ms. Banks implicitly waived the twenty-four hour delay in her acknowledgment that she was ready for sentencing."). Here, however, it appears that defense counsel simply participated in the sentencing hearing, which would truly be an implicit waiver if such a waiver were authorized by the Criminal Code. An implicit waiver, however, runs afoul of the plain language of Art. 873 that requires that the waiver be expressly made.

Nonetheless, an error in failing to observe the statutory sentencing delay may still be found harmless. Under the circumstances presented here, in which a defendant who faced a sentencing range of 20 years to life and received the maximum sentence authorized for a fourth-felony offender for possession of a contraband cell phone, it is difficult to conclude the error is harmless.

Accordingly, we reverse the court of appeal in part to vacate the habitual offender adjudication that immediately followed the failure to observe the statutory sentencing delay and remand this matter to the district court for further proceedings consistent with the views expressed here.

REVERSED IN PART AND REMANDED

      The court of appeal found as an error patent that the trial court erred in denying parole eligibility. Therefore, the court of appeal amended the sentence to delete the prohibition of parole.

      The applicable version of La.R.S. 15:592.1(C) provided:
      The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.
      In State v. Anderson , 349 So.2d 311, 313-314 (La. 1977), this court interpreted "expiration of the maximum sentence" as including the date a prisoner is actually discharged from custody. This provision has been amended to specify that the pertinent interval now extends between "the commission of the current offense or offenses and the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for the previous conviction or convictions, or between the expiration of the correctional supervision, or term of imprisonment if the offender is not placed on supervision following imprisonment, for each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses." La.R.S. 15:529.1(C)(1) (as amended by 2017 La. Acts 257 and 2017 La. Acts 282, eff. Nov. 1, 2017).

      While not viewing the State's failure to prove that the cleansing period has not expired as an error patent, the Third Circuit has nonetheless found that the State's failure to carry its burden may be considered on appeal in the interests of justice despite the lack of any contemporaneous objection. See State v. McKithern , 11-1402, pp. 8-10 (La. App. 3 Cir. 5/2/12), 93 So.3d 684, 692-93.

      We need not consider defendant's claim that the sentence is excessive given that we vacate the habitual offender adjudication and remand for further proceedings.


text:
    STATE of Louisiana v. Fahim A. SHAIKH
    No. 2016-K-0750
    Supreme Court of Louisiana.
    October 18, 2017
    BEAUREGARD PARISH DISTRICT ATTORNEY'S OFFICE, Hon. James R. Lestage, District Attorney, Richard Alan Morton ; For Applicant.
    ROACH & ROACH, APLC, Annette Fuller Roach; For Respondent.
    ON WRIT OF CERTIORARI TO THE COUT OF APPEAL, THIRD CIRCUIT, PARISH OF BEAUREGARD
   PER CURIAM

The State charged defendant with simple kidnapping, La.R.S. 14:45, and indecent behavior with a juvenile, La.R.S. 14:81. The charges arose from an incident involving 13-year-old A.G. on April 17, 2014, after she ran away from home while her mother was out. A.G. left the house on foot with a suitcase and began walking along Highway 171 in Beauregard Parish toward a friend's house. Defendant approached A.G. in his car and offered her a ride. He took her to Dairy Queen and bought food for her. Then he took her to his apartment.

According to A.G., defendant rubbed her thigh as they sat on his couch. After A.G. complained that her mother would not let her dye her hair, defendant took her to Wal-Mart where he purchased hair dye for her and then returned to his apartment where he helped her apply it. They sat on the couch again where defendant hugged A.G., kissed her on the cheek, and tickled her. He later slapped her rear end when she stood up. Defendant also told A.G. that he loved her and offered to let her spend the night. Eventually, defendant delivered A.G. to her friend's house, where her friend's mother made the distraught child call the Beauregard Parish Sheriff's Department. Deputies, posing as A.G., arranged through text messages to meet defendant and arrested him after he initially tried to flee from them.

A Beauregard Parish jury found defendant guilty as charged. The trial court sentenced defendant to five years imprisonment at hard labor, with two years suspended, for simple kidnapping, and to seven years imprisonment at hard labor, with three years suspended, for indecent behavior. The court of appeal vacated the conviction for indecent behavior and found that the five-year sentence for simple kidnapping was excessive. State v. Shaikh , 15-0687 (La. App. 3 Cir. 3/23/16), 188 So.3d 409. The appellate panel determined that there was no evidence "Shaikh attempted to get A.G. to touch him in a sexual way or that he tried to touch her breast or genitals, [no evidence] indicating that Shaikh made sexual remarks or inappropriate suggestions, [and no evidence] that he tried to take off her clothes." Shaikh , 15-0687, p. 16, 188 So.3d at 421. Therefore, the panel concluded that the State failed to present sufficient evidence defendant committed any "lewd or lascivious" act upon A.G. for the purpose of arousing or gratifying his sexual desires.

The court of appeal also found that the imposition of the maximum (albeit partially suspended) sentence for defendant's simple kidnapping conviction was excessive. The panel observed that "there was no evidence showing that Shaikh denied A.G. the opportunity to leave," and "no evidence that Shaikh possessed a criminal history during the fifteen years he resided in the United States." Shaikh , 15-0687, p. 26, 188 So.3d at 426. Thus, the panel opined that the "five-year sentence is also out of line with other sentences imposed in factually similar cases." Id.

We find that the court of appeal erred in both determinations. To prove defendant guilty of indecent behavior with a juvenile, the State was required to prove defendant committed any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen with the intention of arousing or gratifying the sexual desires of either person. R.S. 14:81(A), (A)(1). The ages of defendant and the victim are not in dispute. In dispute is whether the evidence, when viewed in the light most favor to the State under the due process standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), supports the jury's determination that defendant acted in a manner that was lewd or lascivious and intended to arouse his or A.G.'s sexual desires.

"The word 'lewd' means lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner." State v. Prejean , 216 La. 1072, 1078, 45 So.2d 627, 629 (1950). "The word 'lascivious' means tending to excite lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals in respect to sexual relations." Id. All manner of obnoxious behavior has been held to constitute "lewd and lascivious conduct." See, e.g., State v. Robinson , 43,063, p. 8 (La. App. 2 Cir. 2/13/08), 975 So.2d 853, 858 (defendant groped the victim, called her "baby", and commented that he could not help himself); State v. Guillory , 07-0422, pp. 1-2 (La. App. 3 Cir. 10/31/07), 970 So.2d 670, 672 (teacher brushed a student's legs with papers and asked her if it tingled and how it made her feel "below"); State v. Forbes , 97-1839, pp. 3-4, 6-7 (La. App. 1 Cir. 6/29/98), 716 So.2d 424, 427 (finding a rational trier of fact can conclude defendant committed a lewd and lascivious act by reaching under the victim's t-shirt to touch her breasts and reaching into her underpants to touch the area below her naval near her vagina); State v. Sturdivant , 27,680, pp. 1-2 (La. App. 2 Cir. 2/28/96), 669 So.2d 654, 656 (a parent, while receiving a school tour, made sexual comments to a 13-year-old and then groped her); State v. Kohl , 524 So.2d 781, 784 (La. App. 3 Cir. 1988)defendant's rubbing of his beard on crotch of sleeping victims sufficient to prove violation of R.S. 14:81 ).

Here, defendant hugged the victim and kissed her on the cheek, but did not touch her genitals. Although courts have found that mere kissing or hugging alone does not rise to the level of lewd or lascivious, see, e.g., State v. Louviere , 602 So.2d 1042 (La. App. 4 Cir.1992), writ denied , 610 So.2d 796 (La. 1993), defendant engaged in a subtle but panoply of acts from which a jury, when viewing his conduct as a whole, could rationally find his behavior was lewd or lascivious. Notably, defendant also rubbed A.G.'s thigh, slapped her on her rear end, professed his love for her, and invited her to spend the night with him. While defendant argues that the State failed to rule out the reasonable hypothesis of innocence that by touching the girl he was merely trying to comfort an upset runaway, his verbal expression of his romantic feelings and his invitation to spend the night with him are at odds with that hypothesis. A reasonable alternative hypothesis is not one that merely "could explain the events in an exculpatory fashion," but one that, after viewing all of the evidence in a light most favorable to the prosecution, "is sufficiently reasonable that a rational juror could not 'have found proof of guilt beyond a reasonable doubt.' " State v. Captville , 448 So.2d 676, 680 (La. 1984) (quoting Jackson v. Virginia ). Finding that the court of appeal erred in substituting its appreciation for the totality of defendant's actions and statements in their context for that of the jury, we reinstate the conviction for indecent behavior with a juvenile. See generally State v. Bugbee , 34,524, pp. 7-8 (La. App. 2 Cir. 2/28/01), 781 So.2d 748, 755 ("Finding that an act is lewd or lascivious depends upon the time, the place and all of the circumstances surrounding its commission, including the actual or implied intention of the actor.") (further citation omitted).

The State also contends that the court of appeal erred by finding defendant's simple kidnapping sentence excessive. It argues that the court of appeal substituted its own judgment of an appropriate sentence for that of the trial court without explaining what made the sentence excessive. As such, it infringed on the trial court's broad discretion. We agree. Under established Louisiana jurisprudence, a sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno , 384 So.2d 355, 357 (La. 1980) (further citation omitted). The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Cann , 471 So.2d 701, 703 (La. 1985).

In its ruling finding the sentence excessive, the court of appeal did not find the sentence to be grossly disproportionate to the severity of the offense. It only found that the sentence was longer than sentences imposed in cases it found to be factually similar. It provided no other reason for vacating the sentence and remanded the case with a suggestion that a two-year sentence was more appropriate.

While it may be true that the sentence is longer than those imposed in other cases, this fact alone does not demonstrate a manifest abuse of discretion on the part of the trial court. Moreover, it is important to note that while defendant received the maximum sentence, the trial court suspended 40% of that sentence. Thus, defendant will likely serve far less than the five years imposed. Under the circumstances, the sentence is an acceptable exercise of the trial court's broad discretion. Therefore, we reinstate the sentence for simple kidnapping as originally imposed. Because defendant argued on appeal that his sentence for indecent behavior is excessive, which issue the court of appeal did not reach because it vacated the underlying conviction, see Shaikh , 15-0687, p. 24, 188 So.3d at 425 ("Shaikh's assignment of error with respect to the sentence imposed for indecent behavior of a juvenile is moot given our reversal and vacating of same."), we remand this matter to the court of appeal for consideration of this pretermitted claim.

REVERSED AND REMANDED


text:
    STATE IN the INTEREST OF C.T.
    No. 2016-CK-0939
    Supreme Court of Louisiana.
    October 18, 2017
    LA APPELLATE PROJECT, Katherine M. Franks, For Applicant;
    EAST BATON ROUGE PARISH DISTRICT ATTORNEY'S OFFICE Hon. Hillar Clement Moore, III, District Attorney, Allison Miller Rutzen; For Respondent.
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM

Baton Rouge police officers found two juveniles, who appeared to have passed out, at 1 a.m. in a truck that was parked at a McDonald's restaurant. A strong odor of marijuana emanated from the open windows. Fifteen-year-old C.T. was seated in the front passenger seat with a pistol in his lap. A search revealed a bag of marijuana in the driver's possession as well as a burnt marijuana cigarette in the center console. Crystal Etue had reported the truck stolen several weeks earlier. She did not know either juvenile or authorize them to use the truck.

C.T. was adjudicated delinquent for illegally carrying a weapon while in possession of a controlled dangerous substance, La.R.S. 14:95(E), and unauthorized use of a motor vehicle, La.R.S. 14:68.4. The juvenile court committed him to the custody of the Department of Public Safety & Corrections until his twenty-first birthday. The court of appeal affirmed the adjudication and commitment. State in the Interest of C.T. , 15-1864 (La. App. 1 Cir. 4/15/16), 195 So.3d 70. While unanimously finding that there is sufficient evidence to support the adjudication for illegal carrying, the panel was split over the sufficiency of the evidence establishing unauthorized use. The majority of the panel found the evidence sufficient to prove C.T. intentionally used the truck without the owner's permission. The majority found it significant that "[b]y admitting to Officer Wilson that they did not know whether the truck was stolen, the juveniles implicitly admitted that they did not know who owned the truck, ...." C.T. , 15-1864, p. 6, 195 So.3d at 76. In contrast, the dissent found the evidence insufficient to establish that C.T. had the requisite criminal intent. C.T. , 15-1864, p. 1, 195 So.3d at 78 (McClendon, J., dissenting) ("C.T. was not the vehicle's driver and the state presented no evidence that C.T. was connected to, or knew of, its theft. Moreover, the vehicle did not show any apparent signs of having been tampered with or any other indicia that it had been stolen. Further, there was no evidence of the defendant fleeing the scene nor did he make any incriminating statements as to the unauthorized use of the vehicle.").

In a juvenile delinquency proceeding, the State's burden of proof is the same as in a criminal proceeding against an adult-to prove beyond a reasonable doubt every element of the delinquent act alleged in the petition. La.Ch.C. art. 883. To prove a violation of R.S. 14:68.4, the State must show that the juvenile intentionally took or used a motor vehicle belonging to another without that person's consent. Cf. State in the Interest of Batiste , 367 So.2d 784, 789 (La. 1979) ("[B]oth theft and unauthorized use of movables require a misappropriation or taking by the culprit."). Further, R.S. 14:68.4 must reasonably be construed to require the existence of fraudulent intent. State v. Bias , 400 So.2d 650, 652-53 (La. 1981) ("[W]e construe the present statute proscribing unauthorized use of a movable as requiring a showing of mens rea or criminal intent ..."). Mere presence inside a vehicle is insufficient. See, e.g., State in the Interest of O.B. , 559 So.2d 31, 33 (La. App. 4 Cir. 1990) (evidence that defendant was merely a backseat passenger in a stolen vehicle who saw keys in the ignition but not the broken steering column and who fled after the driver crashed following a chase initiated by the police conducting a routine traffic stop did not support his conviction for unauthorized use of the vehicle).

There is some disagreement among the circuits as to whether a perpetrator must have knowledge that the vehicle is stolen or only that he does not have authorization to use it. Compare State ex rel. J.J. , 16-0193 (La. App. 1 Cir. 6/3/16), 196 So.3d 110, 114 (State "only required to prove that the [juvenile] intentionally utilized the vehicle without the permission of the vehicle's owner") with O.B. , 559 So.2d at 33 ("the state provided insufficient evidence to prove that [the juvenile] took or used the vehicle with the knowledge that it was stolen."); State ex rel. H.N. , 97-0982 (La. App. 4 Cir. 7/8/98), 717 So.2d 666 (adjudications reversed based on evidence that juvenile passengers were unaware vehicle was stolen). The statute defining the offense, however, does not require knowledge that the vehicle is stolen (or that it have been stolen at all) as an element of the offense. Instead, the statute defines the offense as follows: "Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently." La.R.S. 14:68.4(A). Therefore, courts have erred to the extent they have engrafted a requirement onto the law that the state prove a defendant is aware a vehicle is stolen.

In the instant case, the State presented evidence that C.T. was passed out in the passenger seat of a stationary vehicle that was later determined to have been stolen several weeks earlier. The vehicle's owner had not given the juveniles, whom she did not know, permission to use her vehicle. The other juvenile was in the driver's seat and possessed the keys. There was no damage to the doors, steering column, or ignition. The vehicle reeked of marijuana, however, and C.T. had a firearm on his lap. It was also 1 a.m. and C.T. was in violation of a court order by being out of his home and in violation of the local curfew ordinance. Both juveniles denied knowing the vehicle was stolen but neither evinced any knowledge as to who owned the vehicle either. This evidence may be insufficient to prove C.T. knew the vehicle was stolen but it sufficed to prove C.T. intentionally used a motor vehicle which belonged to another without the other's consent, which is all the language of the statute requires. The totality of the circumstances here, when viewed in the light most favorable to the State under the due process standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), sufficed to exclude every reasonable hypothesis of innocence regarding C.T.'s criminal intent. See generally R.S. 15:438 ; see State v. Jacobs , 504 So.2d 817, 820 (La. 1987) (all direct and circumstantial evidence must meet the Jackson test). Finding no error in the court of appeal's ruling, we affirm.

AFFIRMED

GENOVESE, J., dissents and assigns reasons.

JOHNSON, Chief Justice, dissents for the reasons assigned by Justice Genovese.

GENOVESE, J., dissents and assigns reasons:

I respectfully dissent from the majority opinion and would reverse the adjudication of unauthorized use of a motor vehicle. La.R.S. 14:68.4. C.T., a minor and guest passenger in the vehicle, denied knowing that the truck was stolen. The record reflects that there was no contrary evidence presented to establish that C.T. knew or should have known that the driver of the vehicle did not have the owner's permission to use the vehicle. There was no physical damage to suggest that it had been broken into, and the driver possessed keys to the vehicle.

Mere presence inside a vehicle is insufficient to prove unauthorized use of a motor vehicle. A passenger in a vehicle cannot be found guilty of unauthorized use of a motor vehicle without proof that he had knowledge that the operator of that vehicle was operating it without the consent or authority of the owner. An essential element of the offense is proof of mens rea or criminal intent. State v. Bias , 400 So.2d 650, 652-53 (La.1981).

To prove a violation of La.R.S. 14:68.4, the State was required to prove beyond a reasonable doubt that C.T. intentionally took or used the vehicle belonging to another without that person's consent. With no evidence to suggest that C.T. knew or should have known that the use of the vehicle was without the owner's permission, or proof beyond a reasonable doubt that C.T. intentionally took or used the vehicle belonging to another without that person's consent, C.T.'s mere presence in the passenger's seat of the vehicle is insufficient to support the conviction. I agree with Judge McClendon's dissent wherein she concluded that the State failed to establish C.T. "possessed the requisite guilty mind."

For these reasons, I would vacate C.T.'s adjudication for unauthorized use of a motor vehicle.

      The court of appeal also rejected the juvenile's claim that his disposition is an excessive punishment and not the least restrictive disposition appropriate under the circumstances. C.T. , 15-1884, pp. 7-8, 195 So.3d at 76-77. The court of appeal noted that the juvenile court had the benefit of a detailed pre-disposition report, the juvenile's history (which included two prior delinquency adjudications and 13 arrests already by age 15), and the testimony of the juvenile's mother. The court of appeal also noted that the juvenile's criminal behavior was escalating with a potential for gun violence. Although the juvenile asserts that the disposition is excessive, he shows no error in the court of appeal's analysis or abuse of the juvenile court's discretion.

      "Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations." La.R.S. 14:67(A). In contrast with unauthorized use, which requires no "intention to deprive the other of the motor vehicle permanently", La.R.S. 14:68.4(A), for theft "[a]n intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential." La.R.S. 14:67(A).

      Obviously, the unauthorized taking of a vehicle would suffice to establish an element of La.R.S. 14:68.4. However, the conjunctive "or" within this statute indicates, alternatively, it can be sufficient for the State to show that the use was unauthorized. The use of a vehicle for "joy riding" is an example of such an unauthorized use. While knowledge that the vehicle is stolen is sufficient to establish unauthorized use, proof of such knowledge is not absolutely necessary to establish an element of the crime. In sum, it can be sufficient that the State prove the vehicle was knowingly used without the consent of the owner. Proving that a defendant knew the vehicle was stolen is simply one alternative method of making that showing.

      Baton Rouge Code of Ordinances § 13:1056.2.


author: PER CURIAM Guidry, J., dissenting

text:
    IN RE: C. Mignonne GRIFFING
    NO. 2017-B-0874
    Supreme Court of Louisiana.
    October 18, 2017
    OFFICE OF DISCIPLINARY COUNSEL, Charles Bennett Plattsmier ; For Applicant
    SCHIFF, SCHECKMAN & WHlTE, Leslie J. Schiff ; C. Mignonne Griffing ; For Respondent.
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, C. Mignonne Griffing, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Since 1990, respondent has been employed as an Assistant United States Attorney ("AUSA") for the Western District of Louisiana, Shreveport Division. At all times relevant herein, respondent was primarily assigned to prosecute white collar and public corruption cases.

During the course of her employment as an AUSA, respondent began and maintained what the formal charges describe as an "intimate, romantic relationship" with a Special Agent of the Federal Bureau of Investigation ("FBI"). The FBI agent was typically the lead investigating law enforcement agent on many of the criminal prosecutions advanced by respondent. While his testimony at trial was not consistently required, the FBI agent was often the principal witness in grand jury presentations and at various hearings where respondent sponsored his testimony on behalf of the prosecution. Respondent and the FBI agent worked to keep their relationship confidential.

Counts I & II

Respondent, on behalf of her client the United States Department of Justice ("DOJ"), initiated the prosecution of Monroe councilmen Robert "Red" Stevens and Arthur Gilmore (Count I) and Ouachita Parish Sheriff Royce Toney (Count II). The FBI agent was the lead investigative agent in both matters. At no time during either prosecution did respondent disclose to the United States Attorney or the defendants that the investigations were performed by the FBI agent, whose testimony she sponsored. Respondent's relationship with the FBI agent created a conflict or potential conflict of interest which she was ethically bound to disclose to the United States Attorney, but which she failed to do. Because the relationship with the FBI agent could reasonably give rise to a basis for questioning the interest and/or credibility of the witness by the defense, the existence of the relationship should have been disclosed to the defendants, but respondent failed to do so.

The ODC alleged that respondent's conduct violated Rules 1.7 (a lawyer shall not represent a client if the representation involves a concurrent conflict of interest), 3.8(d) (the prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

Count III

In connection with respondent's prosecution of Sheriff Toney, as set forth in Count II, the defendant's attorney, A.M. "Marty" Stroud, III, was assured by respondent that his client would not be indicted during the month of February, and held the belief that his client, if indicted, would be allowed to self-surrender. Mr. Stroud related respondent's assurances to his client. Nevertheless, when respondent learned that Sheriff Toney was believed to be "spreading rumors" regarding her relationship with the FBI agent she called Mr. Stroud and threatened to have Sheriff Toney arrested, handcuffed, and "perp walked" out of the Sheriff's Office if he did not refrain from spreading such rumors. Subsequently, Sheriff Toney was indicted in February and was arrested, handcuffed, and led out of his office by law enforcement, resulting in his termination of Mr. Stroud's representation.

The ODC alleged that respondent's conduct violated Rules 8.4(a) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count IV

During the course of the prosecutions described in Counts I and II, the United States Attorney for the Western District of Louisiana was informed of the allegations regarding respondent's relationship with the FBI agent. Upon questioning by the United States Attorney, respondent falsely denied and/or misled the United States Attorney regarding the relationship.

The ODC alleged that respondent's conduct violated Rules 8.4(a) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In March 2013, Sheriff Toney filed a complaint against respondent with the ODC. In March 2016, the ODC filed formal charges against respondent as set forth above. Respondent answered the formal charges and admitted she had a personal relationship with the FBI agent. She further admitted she had an obligation to disclose the relationship to the United States Attorney and to the defendants; however, she denied the relationship created a conflict of interest. Respondent denied any misconduct relating to the allegations in Count III of the formal charges.

Formal Hearing

This matter proceeded to a formal hearing conducted by the hearing committee on July 7-8 and September 27, 2016. The ODC called Mr. Stroud, Sheriff Toney, and First Assistant United States Attorney Alexander Van Hook to testify before the committee. Respondent called numerous character witnesses to testify before the committee. She also testified on her own behalf and on cross-examination by the ODC.

Prior to the hearing, the parties entered into factual stipulations, including the following:

1. While employed as an AUSA, respondent and the FBI agent commenced and maintained a personal, intimate relationship. There is no evidence to indicate that the FBI agent's testimony was anything other than truthful and supported by the evidence, nor any evidence that it was influenced or colored in any way by their personal relationship. Respondent and the FBI agent made an effort to keep their relationship confidential because the FBI agent was married.
2. On behalf of the United States Attorney's Office, respondent initiated the prosecution of two Monroe city councilmen, Robert "Red" Stevens and Arthur Gilmore. The FBI agent was the lead investigative agent. Although the FBI agent was a witness before the grand jury and at trial, respondent did not disclose the existence of the relationship to either her supervisors or the defendants. Respondent acknowledges that the relationship could reasonably have given rise to a basis for questioning the interest and/or credibility of the FBI agent by the defendants and should have been disclosed.
3. On behalf of the United States Attorney's Office, respondent initiated the prosecution of Ouachita Parish Sheriff Royce Toney. The FBI agent was the lead investigative agent. Although the FBI agent was a witness before the grand jury and at a pre-trial hearing, respondent did not disclose the existence of the relationship to either her supervisors or the defendant. Respondent acknowledges that the relationship could reasonably have given rise to a basis for questioning the interest and/or credibility of the FBI agent by the defendant and should have been disclosed.
4. In connection with the prosecution of Sheriff Toney, respondent advised the sheriff's counsel, Mr. Stroud, that the sheriff would not be indicted in February 2012 because that is what she had been told by her supervisors. The next day, respondent was advised by her supervisors to present the Toney case to the February grand jury. Though respondent told her supervisors of the assurances she had given Mr. Stroud, respondent was instructed to proceed with the case to the February grand jury. She was instructed that she was not to tell Mr. Stroud until Sheriff Toney was arrested. To that end, respondent wrote a letter to Mr. Stroud that she had hand delivered to him following Sheriff Toney's arrest. Sheriff Toney's arrest was authorized by management of the United States Attorney's Office and executed by the FBI. Sheriff Toney was arrested in the same place and in the same manner as his co-defendant and subordinate who had been arrested several months earlier.
5. In June 2012, four months after Sheriff Toney's indictment, Mr. Stroud advised the United States Attorney's Office that he believed respondent and the FBI agent had an inappropriate relationship. When questioned by the United States Attorney, respondent was not immediately and fully forthcoming. Shortly thereafter, respondent advised the First Assistant of the exact nature of the relationship.
6. The DOJ has completed its investigation into respondent's conduct. In accordance with DOJ policies, respondent was suspended without pay for nineteen days. Respondent has already served this suspension. Respondent has returned to her employment and is actively engaged as an appellate attorney.

Hearing Committee Report

After considering the testimony and the other evidence in the record, the committee made the following findings:

Sheriff Toney's original defense counsel, Mr. Stroud, testified that when he was retained by Toney, he had a telephone conference with respondent in which he stated that he wanted Sheriff Toney to be able to appear by citation versus being arrested. Mr. Stroud testified that he received assurances from respondent that Sheriff Toney would be able to surrender by citation. Mr. Stroud further testified that he had had similar conversations with respondent in the past and that those assurances in those prior matters had been honored. The committee found Mr. Stroud's testimony credible despite the fact that respondent testified she never committed to self-surrender and would not have done so because she knew she would not be the person making the decision as to self-surrender versus arrest.

There was another exchange between respondent and Mr. Stroud, via e-mail, in which respondent committed to Mr. Stroud that Sheriff Toney would not be indicted in February 2012. Respondent admits that commitment. The committee concluded that respondent did not voluntarily break her commitment. According to the testimony of Mr. Van Hook, the decision was made to proceed with a February indictment based on certain acts by Sheriff Toney which were intended to intimidate witnesses or otherwise obstruct the government's investigation. Respondent was ordered not to communicate to Mr. Stroud that, in fact, the indictment would be occurring in February.

There was yet another telephone conversation that occurred between respondent and Mr. Stroud. A call was made by respondent to Mr. Stroud during which respondent advised Mr. Stroud that if Sheriff Toney did not stop spreading rumors about her relationship with the FBI agent, she was going to have Sheriff Toney arrested. Respondent testified that she was trying to deliver the message that Sheriff Toney must stop trying to intimidate witnesses and obstruct the government's investigation. In her sworn statement, respondent testified that when she had this telephone conversation with Mr. Stroud, she already knew that Sheriff Toney was endeavoring to affect the outcome of the investigation by threats and harassment. She further stated that she used her relationship with the FBI agent as an "example" of Sheriff Toney's misconduct. She stated that she was trying to protect her witness (an employee of Sheriff Toney) and her witness' husband and therefore did not mention their names or the specific actions of Sheriff Toney because he was not aware the witness was cooperating. However, the fact remains that the only topic that respondent mentioned in her telephone conference with Mr. Stroud was the issue of Sheriff Toney's spreading rumors about her relationship with the FBI agent. Respondent admits that she should not have made the call to Mr. Stroud.

Mr. Stroud testified that respondent further told him that if Sheriff Toney did not stop spreading rumors about her and the FBI agent, she would not only have Sheriff Toney arrested, but that he would be "handcuffed and perp walked out of the Sheriff's Office." Respondent denies that she made such threats, stating that it is totally up to the FBI as to the method of arrest employed. The committee found Mr. Stroud's version of the conversation credible. The committee agreed with Mr. Van Hook that respondent's call to Mr. Stroud was an abuse of prosecutorial power and involved conduct that was prejudicial to the administration of justice.

The committee further found clear and convincing evidence that respondent's actions caused the respect and confidence due the office of the United States Attorney for the Western District to suffer in the Monroe, Louisiana area.

Finally, the committee found that the decision to indict Sheriff Toney in February 2012 and to arrest him resulted in loss of business and damage to the professional reputation of Mr. Stroud.

Based on these findings, the committee determined that respondent violated Rules 1.7(a)(2), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. The committee did not mention any of the other rule violations alleged in the formal charges.

The committee found the following aggravating factors present: a dishonest or selfish motive, multiple offenses, and substantial experience in the practice of law (admitted 1989). The committee found the following mitigating factors present: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and imposition of other penalties or sanctions.

The committee did not specifically discuss the duties violated by respondent, her mental state, or the harm caused by her misconduct, nor did it identify the applicable baseline discipline. However, the committee did cite Standards 4.32 and 6.32 of the ABA's Standards for Imposing Lawyer Sanctions . Standard 4.32 provides suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client. Standard 6.32 provides that suspension is generally appropriate when a lawyer engages in communication with an individual in the legal system when the lawyer knows that such communication is improper, and causes interference or potential interference with the outcome of the legal proceeding. The committee also cited In re: Jordan , 04-2397 (La. 6/29/05), 913 So.2d 775, in which this court held that a prosecutor is "charged with a high ethical standard [and] entrusted with upholding the integrity of the criminal justice system by ensuring that justice is served for both the victims of crimes and the accused.... Any intentional deviation from the principle of the fair administration of justice will be dealt with harshly by this Court."

Considering the foregoing, the committee recommended that respondent be suspended from the practice of law for six months, followed by a one-year period of probation during which she should be required to obtain twenty hours of continuing legal education ("CLE") in ethics and twenty hours in professionalism, for a total of forty hours, by the end of 2017.

Post-Hearing

Following the issuance of the hearing committee's report, the ODC filed an objection to the committee's failure to address the applicability of Rule 3.8(d) of the Rules of Professional Conduct. The ODC also urged that the board revisit the sanction recommended by the committee. Respondent likewise objected to the report, contending that the committee failed to apply a clear and convincing standard in weighing the evidence, erred in its factual conclusions in two instances, and recommended a sanction that was too harsh.

On February 7, 2016, prior to any consideration of this matter by the disciplinary board, the ODC and respondent filed a pleading captioned "Joint Stipulations and Memorandum by the Office of Disciplinary Counsel and Respondent." In this pleading, the parties agreed that respondent violated the Rules of Professional Conduct as charged. The parties also agreed that the appropriate sanction in this matter is a suspension of one year and one day, with all but six months deferred, subject to a one-year period of unsupervised probation with conditions, including the CLE obligations proposed by the hearing committee.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's findings of fact are supported by the evidence and are not manifestly erroneous. The parties stipulated to many of the facts prior to the hearing. Effect must be given to these stipulations unless they are withdrawn. In re: Torry , 10-0837 (La. 10/19/10), 48 So.3d 1038. To the extent that additional facts, not stipulated, were found by the committee, the board adopted these facts as supported by the record. In addition to the factual allegations, after the hearing the parties stipulated that respondent violated Rules 1.7, 3.8(d), 8.4(a), 8.4(c), and 8.4(d). Likewise, these stipulations must be given effect. Id.

The board determined that respondent knowingly violated duties owed to her client, the public, and the legal system. Her assurances to Mr. Stroud relative to his client's indictment and arrest, and her phone call threatening the public arrest of Sheriff Toney, were improper. These communications harmed the relationship between Mr. Stroud and his client. Respondent's personal interest in keeping quiet her relationship with the FBI agent deprived her client, the United States through her superiors, of information they needed to make informed decisions relative to the representation of the government and disclosure obligations to defendants. Her misconduct led to the government's decision to relitigate the case against Councilmen Stevens and Gilmore, caused harm in the form of the additional expenditure of resources to retry the case, and adversely impacted the government's tendered plea bargain offered to Sheriff Toney. The potential for harm also exists, as it is possible that the issue of the relationship may be raised in other cases prosecuted by respondent in which the FBI agent testified. Furthermore, her actions are the type that cause unfavorable opinion by the public towards the legal system and especially, the United States Attorney's Office in the Western District of Louisiana. The applicable baseline sanction in this matter is suspension.

The board agreed with the aggravating and mitigating factors found by the committee. Additionally, the board found remorse to be a mitigating factor. The board found the mitigating factors in this case far outweigh the aggravating factors, particularly the factors of character and reputation, imposition of other penalties or sanctions, and remorse.

The board then turned to an analysis of this court's prior jurisprudence. The board acknowledged that there is no Louisiana case law which directly addresses an intimate relationship between a government prosecutor and a law enforcement agent called as a witness. Instead, the board relied upon cases involving assistant district attorneys who received fully deferred suspensions with probation for engaging in conflicts of interest and conduct prejudicial to the administration of justice in their civil practices. See In re: Caillouet , 01-2461 (La. 11/9/01), 800 So.2d 367, and In re: Toups , 00-0634 (La. 11/28/00), 773 So.2d 709. The board also cited In re: Ruffin , 10-2544 (La. 1/14/11), 54 So.3d 645, as an example of a prosecutor who used her position to threaten someone in order to further a personal interest. In that case, an individual had written a bad check to a friend of Ruffin's and owed the friend money. Ruffin threatened the individual with arrest and prosecution. For this misconduct, balanced by the mitigating factors present, the court imposed a six-month suspension, with all but thirty days deferred. Finally, the sole reported Louisiana case addressing a violation of Rule 3.8(d) is In re: Jordan , 04-2397 (La. 6/29/05), 913 So.2d 775, in which the prosecutor was suspended for three months, fully deferred, subject to a one-year period of probation for failing to disclose exculpatory evidence in violation of Rule 3.8(d).

Considering these cases, and the numerous mitigating factors present in this matter, the board concluded that the appropriate sanction is a six-month suspension, fully deferred subject to a one-year period of probation during which respondent must obtain an additional ten hours each of continuing legal education in the areas of ethics and professionalism. The board further recommended that respondent pay all costs and expenses of these proceedings.

The ODC filed an objection to the board's report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

The underlying facts of this case are largely undisputed. Essentially, respondent acknowledges that while employed as an AUSA, she commenced and maintained a personal, intimate relationship with an FBI agent. Although there is no indication that the agent's testimony was influenced or colored in any way by their personal relationship, respondent admits she failed to disclose the relationship during her prosecution of two Monroe city councilmen and the Ouachita Parish Sheriff. After the sheriff's counsel raised the possibility of the relationship, respondent was questioned by the United States Attorney and was not immediately and fully forthcoming. In addition, the disciplinary board found respondent made assurances to the sheriff's counsel relative to his client's indictment and arrest. This conduct, and her phone call threatening the sheriff's public arrest, were clearly improper. These communications harmed the relationship between the sheriff and his counsel. Based on these facts, the parties agree that respondent violated Rules 1.7, 3.8(d), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

We have not previously had the opportunity to address directly the misconduct of a government prosecutor who maintained an intimate or romantic relationship with a law enforcement agent called as a witness. However, we have repeatedly held that public officials-and prosecutors in particular-are held to a higher standard than ordinary attorneys. See In re: Bankston , 01-2780 (La. 3/8/02), 810 So.2d 1113 (an attorney occupying a position of public trust is held to even a higher standard of conduct than an ordinary attorney); In re: Toups , 00-0634 (La. 11/28/00), 773 So.2d 709 (because the prosecutor is entrusted with great power and discretion in our system of justice, he is also charged with a high ethical standard). In formulating a sanction for respondent's misconduct, some general guidance can be drawn from cases dealing with conflicts of interest involving romantic entanglements. For example, the case of In re: Ryland , 08-0273 (La. 6/6/08), 985 So.2d 71, is instructive. There the respondent entered into an intimate relationship with a client during the course of a domestic representation. The respondent was suspended for ninety days, fully deferred, considering that there was little or no actual harm. Furthermore, the respondent was not a prosecutor and did not commit any other violations of the Rules of Professional Conduct.

In a case involving both a conflict of interest as well as deception such as exists in this instance, the recent case of In re: Bullock , 16-0075 (La. 3/24/16), 187 So.3d 986, is highly persuasive. The respondent failed to file a petition for damages within the prescriptive period and then took steps to hide her malpractice from the client when the duty owed was full disclosure. We determined that this conduct warranted a suspension for one year and one day, with all but six months deferred. There are strong parallels here inasmuch as respondent has a clear conflict of interest under Rule 1.7 that should have been disclosed to the government and to opposing counsel in her pending cases. When the issue did arise, respondent was deceitful and falsely misrepresented the issue to her employer on not one, but two, separate occasions.

Respondent acknowledged in her prehearing stipulations that the relationship she had with the FBI agent could reasonably have given rise to a basis for questioning the interests and/or credibility of the agent by the defendants and should have been disclosed. Respondent stipulated prior to board panel argument that this conduct violated Rule 3.8(d). In In re: Jordan , 04-2397 (La. 6/29/05), 913 So.2d 775, we imposed a fully deferred three-month suspension upon a prosecutor who failed to turn over exculpatory evidence to the defense in violation of Rule 3.8(d).

Finally, respondent stipulated that she used her position as an AUSA to threaten a criminal defendant she was prosecuting with arrest within his own office if he did not refrain from spreading "rumors" regarding her relationship with the FBI agent. This abuse of her authority as a prosecutor is similar in some respects to In re: Ruffin , 10-2544 (La. 1/14/11), 54 So.3d 645. There, Assistant District Attorney Ruffin used her position to threaten with arrest and prosecution an individual who had written a bad check to her friend. We determined that the nature of the misconduct warranted a period of actual suspension and suspended Ruffin for six months, with all but thirty days deferred.

When taken cumulatively, including the multiple violations of the Rules of Professional Conduct and specifically considering respondent's dishonesty and misrepresentation to which she has stipulated, we find that the fully deferred suspension recommended by the board is not appropriate and that respondent must serve an actual period of suspension. We will impose a one year and one day suspension, deferring all but six months of the suspension in light of the substantial mitigating circumstances present. We further order that respondent serve a one-year period of unsupervised probation, during which she shall obtain an additional forty hours of continuing legal education, with twenty hours each in the areas of ethics and professionalism.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that C. Mignonne Griffing, Louisiana Bar Roll number 19601, be and she hereby is suspended from the practice of law for one year and one day. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for one year, subject to the conditions set forth in this opinion. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

JOHNSON, Chief Justice, concurs in the discipline assigned.

Guidry, J., dissenting

Guidry, J. , dissents and would suspend the respondent from the practice of law for a period of six months, fully deferred, subject to a one-year period of probation with conditions.

      Retired Judge Hillary Crain, assigned as Justice Ad Hoc, sitting for Clark, J., recused.

      The hearing committee and disciplinary board reports do not contain much detail about the nature of respondent's relationship with the agent, who was married at the time. The agent is referred to in the formal charges, and occasionally throughout the record, by his initials; however, in this opinion he is simply referred to as "the FBI agent."

      The board acknowledged that respondent and the ODC stipulated to a sanction which would require respondent to serve an actual period of suspension, but stated that a fully deferred suspension is consistent with the jurisprudence, and moreover, the board was not bound by the stipulation in making its sanction recommendation to the court.

      In the parties' briefs, there is considerable discussion as to whether respondent is bound by the stipulated sanction. While we have permitted the parties to enter into stipulations of fact and rule violations, we question the wisdom of allowing stipulations regarding sanctions in the context of a formal charge matter. The parties have an adequate procedure to propose sanctions to this court by filing a joint petition for consent discipline in this court. See Supreme Court Rule XIX, § 20. In any event, unlike the stipulations of fact and rule violations discussed in In re: Torry , 10-0837 (La. 10/19/10), 48 So.3d 1038, we now hold a stipulation by the parties as to sanctions is not binding on the hearing committee, the disciplinary board, or this court. Should the parties stipulate to a sanction in the course of a proceeding based on formal charges, the committee and the board may consider the stipulated sanction along with the other evidence but are in no way bound to accept it and remain free to formulate their own recommendation of discipline based on all relevant considerations.