author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. David LEGER
    NO. 2017 KA 0461
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 15, 2017
    Hillar C. Moore, III, District Attorney, Cristopher J. M. Casler, Assistant District Attorney, Baton Rouge, LA, Attorneys for Plaintiff-Appellee, State of Louisiana
    Rachel I. Conner, New Orleans, LA, Attorney for Defendant-Appellant, David Leger
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

The defendant, David Leger, was charged by grand jury indictment with five counts of vehicular homicide, a violation of La. R.S. 14:32.1, and pled not guilty. Following a jury trial, he was found guilty as charged. Subsequently, the defendant filed motions for post-verdict judgment of acquittal and new trial and filed a motion to recuse the trial judge, who initially denied the motion to recuse. This court vacated that ruling and ordered that the motion to recuse be randomly allotted to another judge for disposition. State v. Leger, 2014-1518 (La. App. 1st Cir. 10/16/14), 2014 WL 12570083 (unpublished), writ denied, 2014-2200 (La. 11/5/14), 152 So.3d 161. Following the random allotment for purposes of that motion, the motion to recuse was granted by Judge Donald Johnson and the case was ordered to be randomly allotted for further proceedings. Following reallotment to Judge Richard "Chip" Moore, the trial court denied the defendant's motion for post-verdict judgment of acquittal, but granted his motion for new trial. The Louisiana Supreme Court reversed the grant of the new trial and remanded for reconsideration.

State v. Leger, 2015-1720 (La. 2/19/16), 184 So.3d 685 (per curiam). Following that remand, the defendant filed a renewed motion for new trial, which was denied by the trial court. Thereafter, the defendant was sentenced on count six to a fine of two thousand dollars, and five years imprisonment at hard labor, three years to be served without benefit of probation, parole or suspension of sentence, to run consecutively to the sentences imposed on counts seven through ten; on count seven to a fine of two thousand dollars, and five years imprisonment at hard labor, three years to be served without benefit of probation, parole or suspension of sentence and three years of that sentence to be served consecutively to the sentences imposed on counts six and eight through ten; on count eight to a fine of two thousand dollars, and five years imprisonment at hard labor, three years to be served without benefit of probation, parole or suspension of sentence, to run concurrently with the sentences imposed on counts six, seven, nine and ten; on count nine to a fine of two thousand dollars, and five years imprisonment at hard labor, three years to be served without benefit of probation, parole or suspension of sentence, to run concurrently with the sentences imposed on counts six through eight and ten; and on count ten to a fine of two thousand dollars, and five years imprisonment at hard labor, three years to be served without benefit of probation, parole or suspension of sentence, to run concurrently with the sentences imposed on counts six through nine.

The defendant appeals, asserting the evidence at trial was insufficient to convict him of vehicular homicide, his rights to a fair trial and due process were violated when the trial judge failed to preside impartially over the trial, the trial court erred when it denied the defendant's motion to challenge a potential juror for cause, the trial court erred when it allowed the prosecution to introduce highly prejudicial evidence, the trial court erred when it denied the defendant's requested jury instructions, the trial court erred when it denied the defendant's motion for new trial, and the trial court erred in disproportionately sentencing the defendant when compared to his co-defendant.

FACTS

On March 13, 2011, at approximately 8:30 p.m., five people, Effie Fontenot, her three sons, Austin Fontenot, Hunter Johnson and Keagan Fontenot, and her friend and co-worker, Kimberly Stagg, died in a motor vehicle collision in the eastbound lanes of Interstate 10 in East Baton Rouge Parish. The defendant's vehicle, originally traveling in the westbound lanes of Interstate 10, crossed the median, first striking an eighteen-wheeler trailer, then colliding with the victims' vehicle, which burst into flames, killing the victims.

Several minutes prior to this collision, the defendant was driving a white pickup truck westbound on Interstate 10. At the same time, Kelsye Hall ("Hall") was also driving a green Mercedes SUV westbound on Interstate 10. Several eyewitnesses, who were also driving in the westbound lanes of Interstate 10, testified at trial. According to Dara Soulier ("Soulier"), when she looked in her mirror she saw two vehicles approaching from behind her, and she noticed flashing lights on the defendant's vehicle. Soulier testified that Hall's vehicle was swerving back and forth, and the defendant's vehicle was trying to pass it. Soulier was in the right lane, and both vehicles passed her at a speed in excess of the speed limit of seventy miles-per-hour. It appeared to her that Hall was not allowing the defendant to pass. Soulier said that the defendant would get over to pass, and then Hall would get over, ride the center line back and forth and not allow the defendant to pass. She described the vehicles as playing "cat and mouse." According to Soulier, the defendant did not disengage from playing, did not slow or try to fall back, continued at a high rate of speed, and continued to try to pass Hall. After the vehicles passed her, Soulier observed taillights on the shoulder of the roadway, then saw the defendant's vehicle "shoot" across the interstate and the median, striking an eighteen-wheeler and vehicle.

Kevin Patton ("Patton"), also traveling westbound, testified that Hall's vehicle passed him at a very high rate of speed and rapidly pulled in front of him, almost clipping his bumper. Very shortly after, the defendant passed him at a similar speed and appeared to be following Hall very closely. At the time, Patton thought the vehicles were following each other, like "cat and mouse," chasing each other, or were engaged in "road rage," and he observed that both vehicles were darting in and out of traffic. Patton testified that the defendant did not appear to slow down or disengage. After these two vehicles were approximately ten to fifteen car lengths ahead of him, Patton observed the defendant's vehicle go to the shoulder, then veer back across, through the median, hitting vehicles traveling eastbound. Several other witnesses who were traveling eastbound on Interstate 10 at the time, including the driver of the eighteen-wheeler, testified at trial that they observed the defendant's vehicle cross the median, hit the eighteen-wheeler, then collide with the victims' vehicle.

Hall, who was charged and convicted of five counts of negligent homicide in this case, testified at the defendant's trial. According to Hall, while she was driving that night on Interstate 10, she noticed a white pickup truck following her closely, and the truck engaged its bright lights, then flashed the lights. When she got into the right lane, the truck followed her, and although she tried to let the truck pass her several times, the truck continued to follow her, and this happened multiple times over an approximately ten mile distance. Hall testified that, as she was in the right lane, the truck came around on the shoulder of the roadway, swerved and cut back in front of her vehicle, clipping the front of her vehicle. The truck then went to the right, and Hall went to the left, the truck turned perpendicular and went into the median, hitting vehicles in oncoming traffic. Hall exited at the next exit and returned to the scene on the eastbound side of the interstate. Hall denied that she tried to cut off the defendant or that she swerved between both lanes to prevent him from passing her. Hall admitted that she was straddling both lanes of the interstate, but asserted she did this because the defendant continued following her with bright lights flashing, and she had already allowed him the opportunity to pass multiple times, but he would not pass her. Hall testified that she did not believe she did anything wrong that night and described herself as a "victim."

Louisiana State Police Trooper James Summerford ("Trooper Summerford") arrived at the scene, as the fire department was extinguishing the vehicle fire. The defendant's vehicle was in three pieces, the defendant had been ejected from the vehicle, and his passenger was still being cut out of the vehicle. Both were transported to the hospital. Trooper Summerford documented damage to the front headlight and adjacent area of Hall's vehicle and damage to the left rear trailer of the eighteen-wheeler, where a tire was missing from one rim and the rim was bent. A partially empty bottle of "Captain Morgan," intact and with the cap on, was found inside the defendant's vehicle. Although Trooper Summerford was able to determine there was a collision between the defendant and Hall on the westbound side of the interstate, he was unable to determine the exact location of that collision. Louisiana State Troopers marked and tracked the path of the defendant's vehicle through the median, and assisted with the scene and the investigation. Trooper Burnell Thompson ("Trooper Thompson"), after assisting with traffic and the accident scene, went to the hospital to meet with the defendant. He read the defendant his rights and obtained his consent in providing a blood sample, which was drawn by a nurse at 11:06 p.m. and maintained in the chain of custody. At trial, the parties stipulated to the admission of the results of this test, which showed a blood alcohol concentration of 0.10 grams percent. After returning to the scene, Trooper Thompson subsequently took Hall to the troop headquarters for a breath intoxilyzer test, to which she voluntarily submitted at 12:16 a.m., and which showed no trace of alcohol.

Trooper Darryl Davis ("Trooper Davis") was accepted by the court as an expert in accident reconstruction. Trooper Davis assisted in the investigation at the scene, taking photographs and using a mapping device to take measurements. According to Trooper Davis, there were no skid marks or debris in the westbound lanes to indicate the exact location of the collision between Hall and the defendant. Trooper Davis noted that there was contact between the two vehicles, then the defendant's vehicle rotated and was out of control where he crossed the center median. Trooper Davis testified that after crossing into the eastbound lanes, the defendant struck the eighteen-wheeler, then struck the victims' vehicle, likely stopping it in its tracks, and that shortly thereafter, the victims' vehicle caught on fire. Trooper Davis noted an imprint of the defendant's front tire in the radiator of the victims' vehicle, further opining that these collisions all occurred very violently. Trooper Davis was unable to determine the cause of the collision between Hall and the defendant.

The defense expert, Michael Gillen ("Gillen"), was accepted by the court as an expert in accident reconstruction. Gillen testified that the dent to Hall's vehicle near the headlight had a rounded cup profile consistent with the left rear corner of the defendant's vehicle's bumper. Gillen opined that the sudden redirection of the defendant's vehicle, from the eyewitness statements and the physical evidence of the tire marks and damage to Hall's vehicle, was consistent with the front of Hall's vehicle making contact with the left rear corner of the bumper of the defendant's vehicle. This resulted in a shifting of the rear of the defendant's vehicle to the right which, in turn, redirected the front of the defendant's vehicle to the left, resulting in an unexpected redirection of the defendant's vehicle that sent him projecting across the travel lanes of the westbound interstate in the center median. Gillen's opinion was that Hall moved into the rear of the defendant's vehicle, based upon the fact that Hall did not lose control, i.e., she was expecting it and able to maintain control through the collision. Gillen opined that this collision caused such a significant redirection of the defendant's vehicle that no person, drunk or sober, could avoid this change in direction, and the defendant's intoxication did not have anything to do with the redirection because there was no evidence of any loss of control until this contact. The defendant's vehicle was rotating counter-clockwise as he left the westbound lanes. Gillen opined that, as the defendant was coming out of the median, he was no longer rotating, which indicated steering input by the defendant, which suggested perception and reaction to the event and did not indicate the actions of an impaired driver. The distance across the median was approximately 170 feet, and at seventy miles-per-hour, the reaction time would be one-and-one-half seconds, which is within a normal range of perception. Gillen testified that, without steering input, grass would have been piling up on the right side of the defendant's vehicle against the wheels, and would have caused the defendant's vehicle to roll over. The defendant's vehicle struck the left rear tandem axles of the eighteen-wheeler, knocking off one tire and causing heavy damage to the steel wheel, which corresponded to heavy damage and black smudging on the left rear side of the defendant's vehicle. This collision caused another redirection of the defendant's vehicle, rotating it to the left, and the defendant's vehicle then impacted the victims' vehicle. The tire mark in the front grill of the victims' vehicle corresponded with the front tire of the defendant's vehicle. Relying on the overall travel distance documented by the investigating officers and speeds of seventy miles-per-hour, Gillen opined that the post-impact distance from the collision with Hall's vehicle to the final resting place of the defendant's vehicle was 306 feet and occurred in a three second time frame. Gillen further opined that he did not think this accident would have happened if both vehicles had behaved reasonably.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the defendant challenges the sufficiency of the evidence to support the convictions for vehicular homicide. In his brief, the defendant acknowledges that there was no question at trial that this collision caused the deaths of the five victims. However, the defendant contends that the jury erred in finding that his blood alcohol concentration was a proximate cause of the collision.

A conviction based on insufficient evidence cannot stand, as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B) ; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660 ; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in La. Code Crim. P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.

An appellate court is constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact. State v. Thomas, 2005-2210 (La. App. 1st Cir. 6/9/06), 938 So.2d 168, 174-75, writ denied, 2006-2403 (La. 4/27/07), 955 So.2d 683. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness, including an expert. State v. Ducksworth, 496 So.2d 624, 634 (La. App. 1st Cir. 1986). The fact that the record contains evidence that conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985).

At the time of the collision at issue herein, La. R.S. 14:32.1 provided in pertinent part:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle ... whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exist and such condition was a contributing factor to the killing:
1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
* * *
(4) The operator is under the influence of alcoholic beverages.

Under the vehicular homicide statute, the state, "in order to convict, must prove that an offender's unlawful blood alcohol concentration combined with his operation of a vehicle to cause the death of a human being." State v. Taylor, 463 So.2d 1274, 1275 (La. 1985). The statute should be construed to require proof of a causal relationship between an operator's unlawful blood alcohol concentration and the death of the victim in order to convict. Id. The evident purpose of the vehicular homicide statute is to curb traffic fatalities caused by the consumption of alcohol. It is not aimed at persons involved in vehicular fatalities whose alcohol consumption does not cause but merely coincides with such an accident. Id. The defendant's intoxication need not constitute the sole cause of the killing, but rather, need only be a contributing factor. See La. R.S. 14:32.1 ; State v. Dock, 49,784 (La. App. 2d Cir. 6/3/15), 167 So.3d 1097, 1103. Causation is a question of fact which has to be considered in light of the totality of circumstances surrounding the ultimate harm and its relation to the actor's conduct. State v. Kalathakis, 563 So.2d 228, 231 (La. 1990).

The defendant argues, as he did at trial, that Hall was driving recklessly, deliberately preventing him from safely passing, and the initial impact occurred when Hall's vehicle struck the defendant's vehicle from behind, causing it to careen across the median into oncoming traffic. The defendant further argues that the defense expert concluded that no driver in the defendant's position, drunk or sober, would have been able to avoid the subsequent collisions after the impact from Hall. The defendant also references a post-verdict meeting between Judge White, the trial attorneys and the jurors, relying on the representation that none of the jurors could answer the question of how they determined that the defendant's blood alcohol level was a proximate cause of the collision. However, this court finds it would be improper to consider a summary of alleged comments from jurors. Louisiana Code of Evidence article 606(B) prohibits a juror's testimony as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or concerning his mental processes in connection therewith, except as to outside influences, not at issue herein. This information was provided through an affidavit of the defendant's trial counsel in connection with post-trial defense motions. The "indirect circumvention" of such rule by the use of trial counsel's affidavit to attest to such statements is equally improper. See State v. Pegues, 2010-1626 (La. 2/18/11), 56 So.3d 223, 227 (per curiam), writ denied, 2010-2058 (La. 2/18/11), 57 So.3d 330, in which the supreme court found that the court of appeal indirectly circumvented this provision when it seized upon the trial judge's summary of the post-trial jury interview as a basis for invalidating the jury verdict.

In this case, there is no doubt that the defendant was intoxicated as his blood alcohol concentration was above the legal limit. However, a thorough review of the record discloses that the evidence failed to prove, beyond a reasonable doubt, that the defendant's intoxication was a contributing factor to the deaths of the five victims herein. Courts have recognized that intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La. 1983). In other cases in which this court has affirmed convictions for vehicular homicide, finding it reasonable for the jury to infer that a defendant's blood alcohol concentration contributed to the death, there was evidence of observable manifestations of the intoxication, in addition to the laboratory results. See State v. Watts, 2014-0429 (La. App. 1st Cir. 11/21/14), 168 So.3d 441, 445-46 writ denied, 2015-0146 (La. 11/20/15), 180 So.3d 315, in which the defendant's blood alcohol concentration was .09 percent two hours after the collision, there was additional evidence documenting his speed at 95 miles per hour two seconds prior to impact, and an investigating officer testified he could smell alcohol on the defendant's breath and the defendant had red, bloodshot and glossy eyes; State v. Melerine, 2012-1565 (La. App. 1st Cir. 5/2/13), 2013 WL 1843379 (unpublished), in which the defendant's blood alcohol concentration was .101 percent, and there was additional evidence from an investigating officer that he could smell alcohol on the defendant's breath, his eyes were glassy and bloodshot, and he swayed as he stood and appeared unsteady on his feet. The defendant therein performed poorly on all field sobriety tests, and according to the officer, his level of impairment was obvious; State v. Williams, 2009-0283 (La. App. 1st Cir. 9/14/09), 2009 WL 3011212 (unpublished), writ denied, 2009-2229 (La. 4/16/10), 31 So.3d 1052, in which the defendant's blood alcohol concentration was .07 percent approximately three hours after the collision, and the investigating officer testified that the defendant had a strong odor of alcohol on his breath, bloodshot and glassy eyes and his speech was slurred; State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 117 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277, in which, in addition to the report which showed the defendant's blood alcohol concentration was .25 percent, there was evidence regarding the defendant's acts of doing "doughnuts" and "brake talking" in the parking lot shortly before driving down the highway, that the victim told her friend that the defendant was "driving messed up," and that the investigating officer detected a strong odor of alcohol on the defendant's breath and noted that the defendant's speech was a little slurred.

Although one of the investigating officers herein testified that he suspected the defendant had been drinking, he did not further detail any observable manifestations underlying that suspicion. Therefore, there was no evidence as to the defendant's behavior or demeanor specifically associated with alcohol consumption, and the defense accident reconstruction expert opined that he did not think the defendant's intoxication caused the redirection of the defendant's vehicle from the westbound lanes of the interstate. Accordingly, the jury had before it the report confirming the defendant's blood alcohol concentration, but it did not have further evidence as to the defendant's appearance, observable signs of impairment, the effect of such a blood alcohol level upon a reasonable person, or other evidence from which to reasonably infer beyond a reasonable doubt that the defendant's intoxication was a contributing factor to this collision, an element of the crime of vehicular homicide. In fact, the jury had before it evidence of the actions and omission of the co-defendant Hall, which showed equally bad behavior without intoxication, and there was insufficient evidence to differentiate their criminal behaviors, so as to reasonably infer intoxication as a contributing factor to the defendant's conduct. Although this court is mindful of the horrific loss of five innocent victims herein, we are constrained to find the evidence was insufficient to prove that the defendant's unlawful blood alcohol concentration was a contributing factor to those deaths beyond a reasonable doubt.

Pursuant to La. Code Crim. P. art. 821(E) and State v. Byrd, 385 So.2d 248, 251 (La. 1980), if an appellate court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post-verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense. Negligent homicide is a lesser included responsive offense to the crime of vehicular homicide. La. Code Crim. P. art. 814(7.1). Negligent homicide is the killing of a human being by criminal negligence. La. R.S. 14:32(A)(1). Criminal negligence exists when, although neither specific nor general intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. La. R.S. 14:12. See State v. Martin, 539 So.2d 1235, 1238 (La. 1989) (The Court affirmed the defendant's convictions as principal to negligent homicide, finding ample evidence supported the jury's finding that the defendant's conduct, i.e., driving at high speed on a busy highway, weaving in and out of the right lane, and following another car very closely, was a "gross deviation below the standard of care" expected of him under the circumstances.); State v. Hammontree, 363 So.2d 1364, 1372 (La. 1978) ("Reasonably careful men are expected to obey safety laws, and it is within the province of the legislature to permit the inference that one who violates a safety law and thereby injures another is guilty of criminal negligence; and if it is proved beyond a reasonable doubt that the criminal negligence was the cause of death, the perpetrator may be guilty of criminal homicide.") The evidence did prove, beyond a reasonable doubt, that the defendant herein was guilty of five counts of negligent homicide, and accordingly, we modify each of the convictions herein to negligent homicide. Accordingly, the sentences are vacated, and this matter is remanded to the trial court for sentencing on the modified convictions.

As a result of this court's entry of the modified convictions herein, we find it unnecessary to consider the defendant's assignments of error five, six and seven addressing the alleged improper denial of jury instructions regarding causation, the denial of a motion for new trial based upon the alleged error in the jury instructions, and the alleged excessiveness of the defendant's sentence. However, the court will further address the other alleged trial errors, which the defendant argues entitle him to a new trial.

RIGHT TO FAIR TRIAL AND DUE PROCESS

In his second assignment of error, the defendant asserts that his rights to a fair trial and due process were violated because he did not have an impartial judge presiding over his trial.

After this trial, the defendant filed a motion to recuse Judge Trudy White, who had presided over the trial. At the hearing on this motion before Judge Donald Johnson, Alfred Williams ("Williams"), the attorney who represented Hall in her criminal proceeding and who ran against Judge White in her re-election for district judge, testified that, immediately after the Hall trial, Judge White asked he and the assistant district attorney why the Hall case was tried before the defendant's case because she could have "gotten a piece of flesh." Williams also described another private conversation between him and Judge White, in which Judge White told him he proved reasonable doubt, but she could not find Hall not guilty after seeing photographs of the deceased children and their families in court.

The defendant's trial attorney, Thomas D'Amico ("D'Amico"), testified at this recusal hearing that he was unaware of Judge White's conversation with Williams until after new counsel enrolled for the defendant. He further described a bench conference with Judge White which occurred when the defendant sought to substitute new counsel for post-trial motions and sentencing and obtain a continuance of the sentencing date, in which Judge White expressed concern over the sentencing date for the defendant. According to D'Amico, Judge White wanted to have the sentencing done prior to the election date for her judicial seat, noting her opponent was involved in the case and she seemed to think this case was an issue in the election. Ronald Gathe ("Gathe"), the assistant district attorney who handled the trial of this case, also testified at the hearing. With regard to the discussion in chambers with Judge White and Williams following the Hall trial, Gathe testified that Judge White pointed at them and said she was mad at each of them. When they asked what she was talking about, she responded that she was mad at Gathe because he took the Hall case to trial first and was mad at Williams because he made it a bench trial. According to Gathe, nothing was said to suggest a bias toward the defendant. Although Gathe did recall Judge White asking why the Hall case was tried first, he did not recall a statement by her that she could have "gotten a piece of flesh." With regard to the defendant's sentencing, Gathe objected to a continuance because the victims' families had already had it continued once. He and the defendant's new counsel spoke to Judge White about the requested continuance. He recalled that Judge White was leaning toward a denial of the continuance, because she was involved in an election and her opponent was Hall's attorney. Judge White commented that, because Williams was involved in the Hall case, if she lost the election, Williams would have to be recused, which would be unfair to the families. Gathe did not recall Judge White stating that she wanted the sentencing to occur before the election because it was a political issue.

The motion to recuse Judge White was granted. Judge Johnson recognized that there was testimony that Judge White was interested in the sentencing date and political reasons were expressed, although there was no express finding that Judge White was interested in the sentence. The court further found that if Judge White was not recused, there would be an inference that she was interested in the sentence itself. The state sought supervisory review with this court of the granting of the motion to recuse. This court denied that writ application. State v. Leger, 2014-1704 (La. App. 1st Cir. 11/26/14), 2014 WL 12579660.

The defendant argues that these comments and actions of Judge White manifested a serious bias, or at least the appearance of bias, which requires that the defendant's convictions herein be set aside and a new trial be ordered. The defendant argues that the bias was evident in the trial court's rulings against the defendant at trial, including the denial of the cause challenges, denial of a justified request for jury instructions, and the summary denial of post-verdict motions without reviewing them. The motion to recuse alleged that Judge White was biased, prejudiced, or personally interested in the case to such an extent that she would be unable to conduct fair and impartial proceedings, which constituted sufficient grounds for recusal pursuant to La. Code Crim. P. art. 671(A)(1).

Due process guarantees "an absence of actual bias" on the part of a judge. Williams v. Pennsylvania, --- U.S. ----, 136 S.Ct. 1899, 1905, 195 L.Ed.2d 132 (2016). In ruling on the motion to recuse Judge White herein, there was no finding of actual bias, but the trial court found that there would be an inference that Judge White was interested in the sentence if she was not recused. The Supreme Court has recognized that "most matters relating to judicial qualification do not rise to a constitutional level." Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 1584, 89 L.Ed.2d 823 (1986). The Supreme Court has identified actual bias and presumptive bias as requiring recusal under the Due Process Clause. Richardson v. Quarterman, 537 F.3d 466, 475 (5th Cir. 2008), cert. denied, 555 U.S. 1173, 129 S.Ct. 1355, 173 L.Ed.2d 589 (2009). "Presumptive bias occurs when a judge may not actually be biased, but has the appearance of bias such that 'the probability of actual bias ... is too high to be constitutionally tolerable.' " Id. The Supreme Court has only found that a judge's failure to recuse constitutes presumptive bias in three situations: (1) when the judge has a direct personal, substantial, and pecuniary interest in the outcome of the case; (2) when the judge has been the target of personal abuse or criticism from the party before him; and (3) when the judge has the dual role of investigating and adjudicating disputes and complaints. Id. "[B]ias by an adjudicator is not lightly established." Id. at 474.

Although the trial court herein granted the motion to recuse such that no inference of bias or prejudice would be present at sentencing, the defendant argues that the comments allegedly made by Judge White, i.e., for a "pound of flesh" or that sentencing be set prior to the election, and the rulings by Judge White demonstrate her bias or prejudice. Adverse rulings alone do not show bias or prejudice. Earles v. Ahlstedt, 591 So.2d 741, 746 (La. App. 1st Cir. 1991). Moreover, judicial opinions will support an actual bias claim if they reveal favoritism or antagonism such that fair judgment is impossible. Buntion v. Quarterman, 524 F.3d 664, 673 (5th Cir. 2008), cert. denied, 555 U.S. 1176, 129 S.Ct. 1306, 173 L.Ed.2d 593 (2009). Even if a judge is disqualified under state law, the disqualification is not always required by the Due Process Clause. Richardson, 537 F.3d at 474-75. Moreover, the defendant herein was convicted by a jury, not by Judge White, and subsequently, after the recusal, another judge handled and ruled on post-trial motions and sentencing. The purpose of trial by jury is to prevent oppression by the government by providing a safeguard against a biased or eccentric judge. Apodaca v. Oregon, 406 U.S. 404, 410, 92 S.Ct. 1628, 1632, 32 L.Ed.2d 184 (1972). After Judge White's recusal, in ruling on the defendant's motion for new trial, Judge Johnson noted that he read nothing in the record where Judge White made any statement or took any action which indicated that personal bias, prejudice, or interest affected or played a role in the outcome of this trial. Likewise, this court has thoroughly reviewed this record and found no evidence of bias on the part of Judge White during the trial. While the defendant points to adverse rulings by Judge White, the record reflects that Judge White ruled in favor of the defendant on a number of occasions with regard to a state challenge for cause, evidentiary matters, and a requested change to the jury instructions. Following a thorough review of the record of this proceeding, this court finds no due process violation. Accordingly, this assignment of error lacks merit.

JUROR CHALLENGE FOR CAUSE

In his third assignment of error, the defendant asserts the trial court erred when it denied his challenge for cause as to prospective juror, Deborah Magee ("Magee"), who expressed sympathy toward the victims.

A review of the record of this proceeding does not support the underlying premise of the defendant's claim. Although the trial court initially denied the defendant's challenge for cause as to Magee, following further voir dire by both the prosecution and defense, both sides agreed to excuse Magee for cause, which is further evidenced by the written challenge sheets signed by both counsel. Contrary to the defendant's assertion, Magee was excused for cause. Accordingly, this assignment of error lacks merit.

INTRODUCTION OF PREJUDICIAL EVIDENCE

In his fourth assignment of error, the defendant asserts the trial court erred in admitting highly prejudicial evidence, consisting of photographs of the victims' bodies and testimony of John Robie ("Robie"), a witness at the scene of the collision.

The defendant argues that he moved pretrial to exclude two photographs, which depicted the burned remains of the victims, from evidence at this trial, and renewed that objection at trial. The defendant fails to specifically identify the two photographs to which he objects. The objection at trial was lodged in response to the offer of the photographs marked as exhibits S-36 through S-40. A review of these photographs reveals photographs of the victims' vehicle, and two of these photographs depict the victims' bodies in the vehicle. The defendant asserts that, following publication of these photographs to the jury, defense counsel noted for the record that one of the jurors made the sign of the cross and began praying. The defendant also argues that, pursuant to an affidavit from his trial counsel introduced in connection with his motion for new trial, a post-trial discussion with jurors supports his argument regarding the prejudicial effect of such photographs. However, as noted above, this court finds it would be improper to consider a summary of alleged comments from jurors. La. Code Evid. art. 606(B) ; Pegues, 56 So.3d at 227.

Generally, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. La. Code Evid. art. 403 ; State v. Small, 2011-2796 (La. 10/16/12), 100 So.3d 797, 813. Photographs are not inadmissible merely because they bring vividly to jurors the details of a shocking crime or tend to arouse passion or prejudice, but rather the test of admissibility is whether the probative value of the photographs outweighs their prejudicial effect. State v. Maiden, 258 La. 417, 426, 246 So.2d 810, 813 (1971). Specifically, photographs which illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, are generally admissible, provided their probative value outweighs any prejudicial effect. State v. Lindsey, 404 So.2d 466, 475 (La. 1981). Even when the cause of death is not at issue, "[t]he state is entitled to the moral force of its evidence and postmortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, location, placement of wounds, as well as to provide positive identification of the victim." State v. Letulier, 97-1360 (La. 7/8/98), 750 So.2d 784, 795 ;

State v. Robertson, 97-0177 (La. 3/4/98), 712 So.2d 8, 32, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998). Photographic evidence will be admitted unless it is so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient evidence (i.e., when the prejudicial effect of the photographs substantially outweighs their probative value). State v. Broaden, 99-2124, (La. 2/21/01), 780 So.2d 349, 364, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001) ; State v. Perry, 502 So.2d 543, 558-59 (La. 1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987). Although the defendant argues that he could have stipulated to the condition of the victims, the state cannot be robbed of the moral force of its case merely because a stipulation is offered. State v. Ball, 99-0428 (La. 11/30/99), 756 So.2d 275, 280. Moreover, it is well-settled that a trial court's ruling with respect to the admissibility of allegedly gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the evidence outweighs its probative value. State v. Maxie, 93-2158 (La. 4/10/95), 653 So.2d 526, 532 n.8. The trial court has considerable discretion in the admission of photographs, and its ruling will not be disturbed in the absence of an abuse of that discretion. State v. Gallow, 338 So.2d 920, 923 (La. 1976).

This court has reviewed the photographs and finds no abuse of discretion in the admission of such photographs. The photographs depicting the victims in the vehicle were limited and were not so gruesome as to overwhelm the jurors and lead them to convict the defendant without sufficient evidence.

The defendant also argues that the testimony of Robie was irrelevant and prejudicial. Robie was traveling on Interstate 10 in the eastbound lanes behind the victims' vehicle and witnessed the impact between the defendant's vehicle and the victims' vehicle. The testimony to which the defendant objected at trial was Robie's observations in the aftermath of the collision, which included the fact that he could see the victims in the vehicle and, after the vehicle burst into flames, he could hear screams from the vehicle and, at some point, the screams stopped. As with the photographic evidence discussed above, the state is entitled to the moral force of its evidence, including testimony of eyewitnesses. State v. Letulier, 750 So.2d at 795. Robie was the only witness to testify that he heard the screams of the victims, and the state did not unduly focus on this testimony. This court finds no abuse of discretion in the ruling of the trial court admitting this testimony.

For the foregoing reasons, this assignment of error lacks merit.

CONCLUSION

The judgment of conviction of five counts of vehicular homicide is modified to a judgment of conviction of five counts of the lesser included offense of negligent homicide; the defendant's sentences are vacated; and the case is remanded to the trial court for resentencing on the modified judgment of conviction.

CONVICTIONS MODIFIED; SENTENCES VACATED; REMANDED TO THE TRIAL COURT FOR RESENTENCING ON THE MODIFIED JUDGMENT OF CONVICTIONS.

      In the motion for new trial, the defendant asserted error in the trial court's denial of his requested jury instructions and further asserted that the trial transcript was incomplete and missing the defendant's objections to the failure to include the requested jury instructions, thereby prejudicing him in the preparation of his appeal. In orally ruling on this motion for new trial, the trial court was "unswayed that the requested jury instruction should not have been included," and therefore, found that "the failure to record the charge conference amounted to a material, not inconsequential, omission". The trial court continued, stating that "the requested charges should have been added, or, if not added, a record of his objection recorded for appellate review." As a result, the trial court granted the motion for new trial. After this court denied the state's related supervisory writ application, State v. Leger, 2015-0724 (La. App. 1st Cir. 8/21/15), the supreme court granted the state's writ, noting that the trial court's grant of the motion for new trial was based, at least in part, on the absence in the record of the defendant's objection to the failure of the trial court to instruct the jury with the defendant's proposed jury instructions. However, at the time the writ application was filed with the supreme court, it had been determined that the defendant's objection was in the record, but there remained uncertainty whether the defendant's proposed jury instructions were in the record. Accordingly, the supreme court remanded the matter to the trial court to determine whether the proposed jury instructions were in the record, or alternatively, whether these documents were inadvertently left out of the record. Thereafter, the trial court was ordered to further determine whether the defendant was entitled to a new trial. State v. Leger, 2015-1720 (La. 2/19/16), 184 So.3d 685 (per curiam). Upon remand, the trial court denied the motion for new trial, finding that the inclusion of the defendant's proposed jury instructions resulted in a full and complete record, which extinguished the court's concern as to the defendant's right of review, and further finding that the jury instructions covered the proper law regarding causation.

      The co-defendant, Kelsye Hall, was charged in the indictment with counts one through five, and the defendant herein was charged with counts six through ten.

      If the person had a blood alcohol concentration at that time of 0.08 percent or more by weight, it shall be presumed that the person was under the influence of alcoholic beverages. La. R.S. 32.662(A)(1)(c).


source: Caselaw Access Project

author: CRAIN, J.

license: Public Domain

text:
    LOUISIANA BOARD OF ETHICS
    In the Matter of Walter C. Dumas and Walter C. Dumas & Associates, Inc.
    NO. 2017 CA 0313
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 16, 2017 Rehearing Denied December 11, 2017
    Travis J. Turner, Gonzales, Louisiana, and, Ta-Tanisha T. Youngblood, Baton Rouge, Louisiana, Attorneys for Appellants, Walter C. Dumas and, Walter C. Dumas & Associates, Inc.
    Tracy M. Barker, Kathleen M. Allen, Baton Rouge, Louisiana, Attorneys for Appellee, The Louisiana Board of Ethics
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

Walter C. Dumas and Walter C. Dumas & Associates, Inc., appeal a decision of the Louisiana Ethics Adjudicatory Board (Adjudicatory Board) finding they violated the Louisiana Code of Governmental Ethics (Ethics Code) and ordering them to pay $138,000.00 to the Louisiana Board of Ethics (Ethics Board). We affirm.

FACTS

Southern University is a public university managed by its Board of Supervisors (Board of Supervisors). See La. Const. art. 8, § 7. The Southern University System Foundation (Foundation) is a non-profit corporation established to support and promote Southern University and is a party to multiple contracts with the university. In an effort to generate revenue for Southern University's athletic department, the Foundation and Southern University entered a contract authorizing the Foundation to sublease suites at A.W. Mumford Stadium for Southern University's home football games and other athletic events. The Foundation then subleased the suites through a bidding process.

Pursuant to the stadium contract, from 2001 through 2009 the Foundation subleased 50-yard-line stadium suites to Walter Dumas and Associates, Inc., a law firm owned solely by Dumas and in which he was its senior attorney. In April 2006, Dumas became a member of the Board of Directors of the Foundation, and in January 2009, he was appointed to the Board of Supervisors.

Rental payments were made through 2005, then Dumas and the law firm made no payments during the 2006, 2007, and 2008 football seasons. The terms of the sublease covered those seasons beginning July 1, 2007, and ending June 30, 2009, and required a yearly rental payment of $13,800.00, plus a $96,600.00 donation to the Foundation, payable over three years. Dumas alleged that in 2006, for the millions of dollars in donations to the university for which Dumas was responsible, Dr. Ralph Slaughter, the then president of Southern University, advised Dumas that he did not have to make the remaining payments under the sublease.

In March 2009, as a member of the Board of Supervisors, Dumas voted to terminate Dr. Slaughter. In April 2009, Dr. Slaughter notified the Foundation that the amounts owed under Dumas' sublease were due and not paid. In June 2009, an invoice was sent to Dumas and the law firm demanding payment of $138,000.00 for the suite. The dispute was resolved in August 2009, when the Foundation voted to forgive any debt for suite rentals owed by Dumas or his law firm for 2006, 2007, and 2008.

These events were disclosed to the Ethics Board by a confidential source. In December 2010, charges were filed alleging violations of the Ethics Code: (1) against Dumas, for accepting forgiveness of a debt owed by the law firm to the Foundation, while Dumas was a member of the Board of Supervisors; and (2) against Dumas and the law firm, because by subleasing a stadium suite, the law firm had an interest in the stadium contract between Southern University and the Foundation, while Dumas, the law firm's sole owner, was a member of the Board of Supervisors. After a public hearing, the Adjudicatory Board affirmed the charges and ordered Dumas and the law firm to pay $138,000.00 to the Ethics Board as recovery of an improper economic advantage gained by using the stadium suite for three years without payment.

Dumas and the law firm appeal, urging nineteen assignments of error:

1) It was error ... [for] the [Adjudicatory Board] to conclude Appellants fell under the definition of a public employee when the charges as set forth by the [Ethics Board] occurred;
2) It was error ... [for] the ... Adjudicatory Board to conclude Appellant, Walter C. Dumas, during the years 2006, 2007, and 2008 was a public servant within the meaning of the [Ethics] Code;
3) It was error ... [for] the ... Adjudicatory Board denied [sic ] Appellants, Walter C. Dumas & Associates, Inc., and Walter C. Dumas', Motion to Dismiss;
4) It was error ... [for] the ... Adjudicatory Board to dismiss Appellants' Motion for Summary Judgment;
5) It was error ... [for] the ... Adjudicatory Board to conclude there was a contract for a football suite between the Foundation and Walter C. Dumas & Associates, Inc., on August 20, 2009;
6) It was error ... [for] the ... Adjudicatory Board to conclude the action of Foundation board, former President of the Southern University System Dr. Slaughter did not tacitly or by action ratified [sic ] the use of the football suite by Appellants for the years 2006, 2007, and 2008 without paying the rental charges;
7) It was error ... [for] the ... Adjudicatory Board to conclude that Appellants who were not subject to the Louisiana Ethics Code until January 9, 2009, received as an economic value for using the football suite for the years 2006, 2007, and 2008 without having to pay for the suite [sic ];
8) It was error ... [for] the ... Adjudicatory Board to conclude Appellant, Walter C. Dumas & Associates, Inc., received a thing of economic value when Appellant did not have a contractual and financial relationship with Southern University System Foundation;
9) It was error ... [for] the ... Adjudicatory Board to conclude Appellants receiving [sic ] a thing of economic value when respondent had a contractual and financial relationship with Southern University System Foundation;
10) It was error ... [for] the .... Adjudicatory Board to conclude that on August 20, 2009, there was a contract between the Foundation and Southern University in which Appellant, Walter C. Dumas, had an economic interest;
11) It was error ... [for] the .... Adjudicatory Board to conclude as a matter of law, that Appellants, Walter C. Dumas and Associates, Inc., and Walter C. Dumas, received a thing of value and/or was interested in a contract between the period of January 9, 2009 to June 30, 2009;
12) It was error ... [for] the ... Adjudicatory Board to conclude that a legal entity, Walter C. Dumas & Associates, Inc. owned by Walter C. Dumas had a contract for a football suite with the Southern University Foundation between January 9, 2009, to June 30, 2009;
13) It was error ... [for] the ... Adjudicatory Board not to apply [Louisiana Revised Statute] 42:1113B and [Louisiana Revised Statute] 42:1115A as adopted and passed by the legislature;
14) It was error ... [for] the ... Adjudicatory Board to conclude as a matter of law, Walter C. Dumas & Associates, Inc., violated the [Ethics Code];
15) It was error ... [for] the ... Adjudicatory Board to conclude as a matter of law, Walter C. Dumas violated the [Ethics Code];
16) It was error ... [for] the ... Adjudicatory Board to assess a fine of $138,000 on Walter C. Dumas & Associates, Inc.;
17) It was error ... [for] the ... Adjudicatory Board to assess a fine of $138,000 on Walter C. Dumas;
18) It was error ... [for] the ... Adjudicatory Board to give an economic value to a written-off debt on behalf of Appellants before Appellants were subject to the ... Ethics Code; and
19) It was error ... [for] the ... Adjudicatory Board to conclude that the contract covering the period July 1, 2007, to June 30, 2009 was a valid contract.

DISCUSSION

The Ethics Code was enacted to establish ethical standards to protect against conflicts of interest between the private interests of public servants and the duties of their public positions. See La. R.S. 42:1101B; Louisiana Bd. of Ethics in re Great S. Dredging, Inc. , 15-0870 (La. App. 1 Cir. 5/27/16), 195 So.3d 631, 634, writ denied, 16-1208 (La. 10/17/16), 207 So.3d 1063. The Ethics Code prohibits not only actual conflicts of interest, but also the appearance of impropriety by preventing situations that create the perception of conflicts of interest. Villanueva v. Comm'n on Ethics for Pub. Employees, 98-0980 (La. App. 1 Cir. 5/18/99), 812 So.2d 1, 5. The Ethics Board is responsible for investigating and issuing charges for violations of the Ethics Code. See La. R.S. 42:1141C. The Adjudicatory Board then conducts a hearing to determine whether any violations have occurred. See La. R.S. 42:1141C.

Proceedings before the Adjudicatory Board and judicial review of its decisions are governed by the Louisiana Administrative Procedure Act. See La. R.S. 42:1143 ; La. R.S. 49:950 et seq. ; Louisiana Bd. of Ethics in re Great S. Dredging, Inc. , 195 So.3d at 634. Thus, judicial review is confined to the record developed in the administrative proceeding, and the Adjudicatory Board's decision may be reversed or modified only if substantial rights of the appellant are prejudiced because the findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. La. R.S. 49:964G. Owing no deference to the legal findings of the Adjudicatory Board, the reviewing court reviews questions of law de novo, then renders judgment on the record. Louisiana Bd. of Ethics in re Great S. Dredging, Inc. , 195 So.3d at 634.

La. R.S. 42:1115A

Dumas was charged with violating Louisiana Revised Statute 42:1115A, which provides:

No public servant shall solicit or accept, directly or indirectly, any thing of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public servant knows or reasonably should know that such person:
(1) Has or is seeking to obtain contractual or other business or financial relationships with the public servant's agency, or
(2) Is seeking, for compensation, to influence the passage or defeat of legislation by the public servant's agency.

The elements of a violation of Section 42:1115A are (1) a public servant, (2) accepting, directly or indirectly, a thing of economic value, (3) from a prohibited source. The Adjudicatory Board found that Section 42:1115A was violated on August 20, 2009, by Dumas accepting a gift of $138,000.00 from the Foundation when he knew or reasonably should have known the Foundation had a contractual relationship with Southern University.

Public Servant

Section 42:1102 of the Ethics Code defines a "public servant," in relevant part, as a "public employee," which is anyone, whether compensated or not, who is:

(i) An administrative officer or official of a governmental entity who is not filling an elective office.
(ii) Appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof.
(iii) Engaged in the performance of a governmental function.
(iv) Under the supervision or authority of an elected official or another employee of the governmental entity.

Dumas does not dispute that he became a public servant in January 2009, when he was appointed to the Southern University Board of Supervisors. Assignments of error numbered one and two are without merit.

A Thing of Economic Value

Section 42:1102(22) of the Ethics Code generally defines a "thing of economic value" as "money or any thing having economic value." The Adjudicatory Board determined that Dumas indirectly received a thing of economic value when, in August 2009, the Foundation forgave the suite rental debt owed by the law firm. Dumas does not dispute that forgiveness of a debt is a thing of economic value. Rather, he argues that the debt forgiveness had no economic value because in August 2009, no suite rentals were owed for 2006 through 2008, so there was nothing to forgive. This argument is premised upon the contention that in 2006, Dr. Slaughter relieved Dumas of any responsibility for those suite rentals.

As proof of the debt, the Ethics Board presented a contract that obligated the law firm to pay $138,000.00 to sublease the suites for the 2006, 2007, and 2008 football seasons. The contract was signed by Dumas on behalf of the law firm. In defense, Dumas testified that in 2006, Dr. Slaughter, while president of Southern University, told Dumas that he did not have to pay the stadium suite rentals.

Dr. Slaughter denied telling Dumas he did not have to pay the the amounts required by the sublease. He testified that he had no authority to unilaterally relieve anyone of an obligation due to either Southern University or the Foundation. To support this testimony, the Ethics Board presented the Foundation's by-laws, which require a quorum of the Board of Directors of the Foundation to conduct business. Thus, even if Dr. Slaughter told Dumas he did not have to pay the amounts under the sublease, the Ethics Board established that only the Foundation board could waive any amounts due.

As further evidence that the suite rentals were not forgiven during Dr. Slaughter's tenure as president of Southern University, the Ethics Board presented the Foundation's financial audit dated December 31, 2009, after Dr. Slaughter was terminated as president, which still referenced a $138,000.00 receivable due from "a board member." The Ethics Board also introduced the June 2009 invoice sent to Dumas demanding payment of the amounts under the sublease.

Finally, the Ethics Board presented minutes from the August 20, 2009 Foundation board meeting. Therein, the Foundation acknowledged not billing Dumas for amounts under the sublease at the direction of Dr. Slaughter, but clarified that "[t]his decision was not ratified by the Board at that time. " (Emphasis added.) At the same meeting, a motion authorizing a resolution to be drafted to release and forgive any debt owed by Dumas or the law firm for suite rentals for 2006 through 2008, was seconded and carried. Another excerpt from the minutes of the August 20, 2009 meeting establishes that a motion was made to "ratify the 2006 decision to forgive any debt owed" by Dumas and the law firm, and states:

NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF SOUTHERN UNIVERSITY SYSTEM FOUNDATION AS FOLLOWS:
That Walter C. Dumas, Dumas and Associates Law Corporation, and Dumas & Associates Law Firm, LLC be and are hereby released and forgiven any debt to Southern University for the rental of a Jaguar suite for the years 2006, 2007 and 2008.
This Resolution was declared to be adopted on this 20th day of August, 2009.

Dumas argues that because the Foundation ratified Dr. Slaughter's 2006 decision to allow Dumas to use the suites without payment, the debt was already forgiven and did not exist as of August 20, 2009. "Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority." La. Civ. Code art. 1843. We find that the Foundation board's ratification of Dr. Slaughter's 2006 decision confirms that Dr. Slaughter did not have the authority to forgive the suite debt. The debt remained due and owing until the Foundation ratified the debt forgiveness decision on August 20, 2009. There is no merit to the argument that the August 20, 2009 ratification extinguished the debt effective in 2006, making the debt forgiveness of no economic value in 2009.

Similarly, Dumas argues the debt forgiveness in 2009 had no economic value because the debt was "written off" as of December 31, 2008, before Dumas' appointment to the Board of Supervisors. This court has previously recognized that the accounting procedure of writing off a debt effective on an earlier date does not, without more, constitute a remission of the debt on that earlier date. See Brown v. Adolph , 96-1257 (La. App. 1 Cir. 3/27/97), 691 So.2d 1321, 1326-27. Assignment of error number eighteen is without merit.

Dumas also contends that the Ethics Board, in a brief filed early in these proceedings, judicially confessed that the debt was forgiven as of December 31, 2008, making the August 20, 2009 ratification resolution of no economic value. A judicial confession is a declaration made by a party in a judicial proceeding and constitutes full proof against the party who made it. La. Civ. Code art. 1853 ; C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La. 12/3/03), 861 So.2d 156, 159.

The brief relied upon by Dumas quotes the following from a Legislative Auditor's report dated May 19, 2010:

During the year ended December 31, 2008, the Foundation recorded a receivable from a Foundation board member in the amount of $138,000. The receivable consisted of amounts due from a contract for the rental of a stadium suite in Mumford Football Stadium for the 2006, 2007, and 2008 football seasons. The board member indicated that in light of other contributions made to the System, the receivable was actually forgiven simultaneously as the contract was signed, resulting in no amounts being due from the board member. However, there was no supporting documentation to support the forgiveness. At a board meeting subsequent to year-end, the Foundation board voted to ratify the forgiveness of the debt, and as such, the debt was written off as of December 31, 2008.

The brief further explained:

Dumas argues that the debt was written-off as of December 31, 2008 ... However, this is not an accurate or complete description of the actions that occurred.
...
On August 20, 2009 [Walter Dumas was a member of both the SU Foundation and the SU Board of Supervisors at this time], the SU Foundation Board of Directors met and voted to forgive the debt owed by Dumas. As such, Dumas received a gift from a prohibited source on August 20, 2009. Although for financial purposes the debt was forgiven as of December 31, 2008, the actual granting of the forgiveness -the gift-occurred at a prohibited time. [Footnotes omitted and italics added.]

The brief clearly distinguishes between the effect of a write-off for accounting purposes as opposed to legal purposes. We agree with that distinction. Dumas' argument that the brief contains a judicial confession that the debt was not due at the time of the ratification resolution is without merit.

The evidence presented by the Ethics Board established that until the Foundation board voted to forgive the debt on August 20, 2009, the debt was due and owing. When the Foundation board acted, Dumas, a member of the Board of Supervisors, indirectly accepted a thing of economic value-he forgiveness of the $138,000.00 debt owed by the law firm.

Prohibited Source

Section 42:1115A defines a prohibited source as an entity that the public servant knows or reasonably should know has a contractual or financial relationship with the public servant's agency. Dumas does not dispute that on August 20, 2009, as a member of the Board of Supervisors, he was a public servant and his agency was Southern University. Dumas also does not dispute that as a member of both the Board of Supervisors and the Foundation board, he knew or reasonably should have known that Southern University and the Foundation had contractual and financial relationships with each other. Therefore, for purposes of the Ethics Code, the Foundation was a prohibited source for Dumas.

The Adjudicatory Board did not err in finding Dumas violated Section 42:1115A. The evidence establishes that on August 20, 2009, Dumas (a public servant) received a thing of economic value (the debt forgiveness) from the Foundation (a prohibited source), which he knew or reasonably should have known had a contractual and financial relationship with Dumas' agency (Southern University). Assignments of error numbered six, seven, eight, and nine are without merit.

La. R.S. 42:1113B

Dumas and the law firm were charged with violating Louisiana Revised Statute 42:1113B, which provides:

Other than a legislator, no appointed member of any board or commission, member of his immediate family, or legal entity in which he has a substantial economic interest shall ... be in any way interested in any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such appointed member.

The elements of a violation of Section 42:1113B are (1) a board member or legal entity in which he has a substantial economic interest, (2) in any way interested in a contract, (3) under the supervision or jurisdiction of the board member's agency.

It is undisputed that Dumas was appointed to the Board of Supervisors in January 2009, Southern University was Dumas' agency, and the law firm was a legal entity in which Dumas, its sole member, had a substantial economic interest. The Adjudicatory Board found that the stadium contract between Southern University and the Foundation was incorporated into the sublease by reference, and the sublease expressly provided that it was not binding until approved by the landlord/lessor, identified as Southern University. The sublease was signed by Edward R. Jackson as chancellor and representative of Southern University. Upon these facts, the Adjudicatory Board concluded that, for purposes of Section 42:1113B, the sublease was under the supervision of Southern University.

The Adjudicatory Board's conclusion that through the sublease Dumas had an interest in a contract under the supervision or jurisdiction of Southern University is reasonably supported by the record. What Dumas now challenges is the finding that he and the law firm had an interest in a contract under Southern University's supervision after Dumas' January 2009 appointment to the Board of Supervisors.

The sublease was entered before Dumas was a member of the Board of Supervisors. However, in contrast to other provisions of the Ethics Code prohibiting actions by public servants, Section 42:1113B does not except contracts that do not violate Section 42:1113B when they are entered. Compare La. R.S. 42:1113D(2)(d) (specifying that the prohibition against particular persons entering contacts with state government does not extend to the completion of a contract which, at the time it was entered, was not prohibited by that subsection). Therefore, a violation of Section 42:1113D simply requires proof that the sublease remained in effect after Dumas was appointed to the Board of Supervisors.

Dumas contends that because the 2008 football season had ended as of December 31, 2008, and a new season did not begin until after the debt forgiveness resolution on August 20, 2009, he was not interested in a prohibited contract while a member of the Board of Supervisors. The sublease for the 2006, 2007, and 2008 football seasons introduced by the Ethics Board and accepted by the Adjudicatory Board is not limited to the dates of a particular football season or to football seasons alone. Rather, the sublease is effective from July 1, 2007, to June 30, 2009, and covers football games and "other athletic events/activities, and other times as expressly agreed to by the parties in writing." The Adjudicatory Board correctly concluded that the sublease was in effect for six months after Dumas was appointed to the Board of Supervisors. Assignments of error numbered five, ten, eleven, and twelve are without merit.

On appeal, Dumas challenges the validity of the sublease introduced at the hearing, arguing he did not remember signing it, there was no testimony by either Chancellor Jackson or Curtis Lee (who signed the sublease for the Foundation), and the date Dumas and Lee purportedly signed the sublease is whited out. We find no merit to these arguments. In administrative hearings, although the usual rules of evidence do not apply, the findings of the agency must be supported by competent evidence. Board of Ethics Matter of Monsour , 16-1159 (La. App. 1 Cir. 6/21/17), 233 So.3d 625 (2017 WL 2692679). Dumas did not deny signing the sublease, but said he did not remember doing so. He admits the law firm entered a sublease for the 2006, 2007, and 2008 football seasons, and he produced no other contract signed by all parties and covering those years. The Adjudicatory Board did not err in finding the sublease contract to be competent evidence. Assignment of error number nineteen is without merit.

The record supports the Adjudicatory Board's determinations that Dumas violated Sections 42:1115 and 42:1113, and the law firm violated Section 42:1113 of the Ethics Code. Assignments of error numbered thirteen, fourteen, and fifteen are without merit. We find no merit in the numerous assignments of error urged by Dumas challenging the Adjudicatory Board's determinations.

THE PENALTY

The Adjudicatory Board assessed a penalty of $138,000.00 against Dumas and the law firm, in solido , as recovery of an improper economic advantage. Dumas first argues that because neither he nor the law firm violated the Ethics Code, they cannot be liable for or assessed a fine. For the reasons previously discussed, which support the Adjudicatory Board's determination that both Dumas and the law firm violated the Ethics Code, this argument is without merit.

Alternatively, Dumas contends that even if there was a violation, there cannot be solidary liability because only the law firm was a party to the sublease and the law firm is legally responsible for its own actions. An obligation is solidary when each obligor is liable for the whole performance. La. Civ. Code art. 1794. In his brief, Dumas devotes two sentences to this argument. We construe the argument to be that Dumas, individually, cannot be assessed the $138,000.00 penalty.

Violations of the Ethics Code are subject to fines of up to $10,000.00. See La. R.S. 42:1153. When a violation results in an economic advantage, additional penalties may include recovery of an amount equal to the economic advantage gained, plus penalties not to exceed one half of that amount, and forfeiture of any gifts or payments in violation of the Ethics Code. See La. R.S. 42:1155 ; Duplantis v. Louisiana Bd. of Ethics , 00-1956 (La. 3/23/01), 782 So.2d 582, 588. The Adjudicatory Board determined that Dumas, individually, violated the Ethics Code by indirectly accepting a thing of economic value, the forgiveness of a $138,000.00 debt owed by the law firm. The Adjudicatory Board determined the violation resulted in an economic advantage of $138,000.00 to Dumas. The determination of the Adjudicatory Board is reasonably supported by the record, and Dumas has presented no argument or evidence that compels this court to reverse or modify that determination. Assignment of error number seventeen is without merit. In accordance with Section 49:964G, we affirm the penalties assessed by the Adjudicatory Board.

CONCLUSION

After reviewing the record of the proceedings before the Adjudicatory Board in accordance with Section 49:964G, we find no basis for modification or reversal of the Adjudicatory Board's decision and that decision is affirmed. Costs of this appeal are assessed to Walter C. Dumas and Walter C. Dumas and Associates, Inc.

AFFIRMED.

Guidry, G. concurs in the result.

      Because Dumas and the law firm filed a single brief, and for ease of reference, we will refer to the arguments made on appeal as being made by Dumas.

      In his original appellate brief, Dumas did not dispute this finding. However, in his reply brief, Dumas' argument regarding the validity of the contract includes a statement to the effect that the contract was between the law firm and the Foundation, a private, non-profit corporation, and therefore was not subject to the supervision of the Board of Supervisors. To the extent that this statement can be considered a challenge to the Adjudicatory Board's finding, it has no merit. The Adjudicatory Board's finding on this issue is supported by the record.

      Considering these determinations, the issues identified in assignments of error numbered three (that the Adjudicatory Board erred in denying a motion to dismiss the charges filed early in these proceedings) and four (that the Adjudicatory Board erred in dismissing his motion for summary judgment) are moot. Further, these assignments of error were not briefed as required by Uniform Rules, Courts of Appeal, Rule 2-12.4B(4), and are considered abandoned.

      In the list of assignments of error set forth in the appellate brief, number sixteen is "It was error of Panel B of the Adjudicatory Board to assess a fine of $138,000 on [the law firm.]" Dumas did not brief the issue of the penalty being assessed to the law firm and, in fact, argues if there were violations, only the law firm should be assessed the penalty. We consider this issue abandoned. See Uniform Rules, Courts of Appeal, Rule 2-12.4B(4).


author: MCCLENDON, J.

text:
    STATE of Louisiana v. Aaron WILLIAMS
    2017 KA 0585
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 16, 2017
    Hillar Moore, District Attorney, Dylan C. Alge, Assistant District Attorney, Baton Rouge, LA, Counsel for Plaintiff/Appellee, State of Louisiana
    Bertha M. Hillman, Covington, LA, Counsel for Defendant/Appellant, Aaron Williams
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   MCCLENDON, J.

The defendant, Aaron Williams, was charged by bill of information with false imprisonment; offender armed with dangerous weapon, a violation of LSA-R.S. 14:46.1 (count 1); domestic abuse aggravated assault (minor child thirteen years age or younger present at residence), a violation of LSA-R.S. 14:37.7 (count 2); and aggravated assault with a firearm, a violation of LSA-R.S. 14:37.4 (count 3). The defendant pled not guilty to the charges and, following a jury trial, was found not guilty on count 1 (false imprisonment) and guilty as charged on counts 2 and 3. For the domestic abuse aggravated assault conviction, the defendant was sentenced to two years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; for the aggravated assault with a firearm conviction, the defendant was sentenced to three years imprisonment at hard labor. The sentences were ordered to run consecutively. The trial court suspended the sentence for the aggravated assault with a firearm conviction, and placed the defendant on supervised probation for four years with conditions. The defendant now appeals, designating two assignments of error. For the following reasons, we affirm the convictions and sentences.

FACTS

The defendant, his girlfriend Precious Kotte, and Precious' three-year-old son lived in an apartment in Tigerland on Alvin Dark Avenue in Baton Rouge, Louisiana. On August 2, 2012, at about 3:30 a.m., the defendant and Precious were arguing in their bedroom, while Precious's son was asleep in his bedroom. Precious had slept with another man a year prior, and the defendant sought information regarding that incident. Precious refused to tell the defendant anything about it. The defendant walked to the dresser and removed from the top drawer Precious's Glock 17 semi-automatic pistol. The defendant sat on the bed and insisted that Precious tell him about her past relationship with another man. When Precious still refused to tell him anything, the defendant straddled Precious and essentially sat on her torso, with his knees on either side of her. The defendant put the barrel of the gun against Precious's left temple and told her he was going to kill her with her own gun, throw her body in the river, and no one would ever know. The defendant then fired the gun just above Precious's head. The bullet traveled through a picture frame and metal sign on the nightstand and became lodged in the base of a lamp.

Shocked and angry, Precious berated the defendant for firing the gun. The defendant sat on the edge of the bed, still holding the gun. He continued to ask about her past relationship, and Precious told him everything he wanted to know. They talked for hours and, every once in a while, the defendant put the gun down and went to the bathroom or to the kitchen. During most of their conversing, however, the defendant held on to the gun and repeatedly beseeched Precious to give him one good reason why he should not shoot her for cheating on him. They finally came to terms, and Precious, to appease defendant, agreed to get off of birth control and to marry him within two weeks. The defendant then put the gun in his backpack on the dining room table and went to sleep. It was now approximately 11:30 a.m. Precious took the gun from the backpack, grabbed her child, and left the apartment.

Precious went to the Baton Rouge City Constable's Office on St. Louis Street because, in the past, she had seen police around that area. Frantic and crying, Precious gave her gun to two constables, who took her inside and called the Baton Rouge Police Department. Detective Walter Griffin, with the Baton Rouge Police Department, arrived at the constable's office a short time later and interviewed Precious. Police then went to the apartment and arrested the defendant. The defendant was brought to the police station and gave a recorded statement. The defendant admitted he had the gun and that he shot it, but told the detectives that it accidentally discharged.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues there is patent error on the face of the record.

The applicable law at the time of the incident is the amended version of LSA-R.S. 14:37.4, which provides that aggravated assault with a firearm is an assault committed with a firearm. Prior to the amendment, which took effect in May of 2012, LSA-R.S. 14:37.4 provided that aggravated assault with a firearm is an assault committed by the discharge of a firearm. The bill of information charged that the defendant committed the crime of aggravated assault with a firearm by "discharging a firearm." Following closing arguments, the trial court instructed the jury that this crime was an assault committed by the "discharge of a firearm." The defendant contends that the use of this language constituted patent error because the discharge of a firearm is no longer an element of the offense.

Patent error is an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. LSA-C.Cr.P. art. 920(2). We find no patent error on the face of the record. There is nothing erroneous about the language used in Count 3, wherein the State charged that on August 2, 2012, "the defendant assaulted Precious Kotte, by discharging a firearm[.]" While discharging a firearm is not an element of the offense of aggravated assault with a firearm that the State must prove, the defendant nevertheless assaulted Precious Kotte with a firearm when he armed himself with a gun, repeatedly pointed it at Precious, and threatened to kill her. See State v. Lafleur, 16-467 (La.App. 3 Cir. 1/4/17), 209 So.3d 927. That the defendant ultimately discharged the gun did not change the fact that he had committed the crime of aggravated assault with a firearm against Precious.

The defendant also notes in brief that in its jury instructions, the trial court provided the following charge to the jury: "An aggravated assault with a firearm is an assault committed by the discharge of a firearm." Jury charges are beyond the permissible scope of review under LSA-C.Cr.P. art. 920(2). See State v. Kelly, 15-0484 (La. 6/29/16), 195 So.3d 449, 453 ; State v. Oliveaux, 312 So.2d 337, 339 (La. 1975). Furthermore, defense counsel made no objection to this jury charge. The failure to make a contemporaneous objection to jury instructions waives review of those jury instructions on appeal. See LSA-C.Cr.P. arts. 801(C) and 841 ; State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 622, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Despite the lack of a contemporaneous objection, jury instructions may be reviewed on appeal when the alleged error violates a fundamental due process right. See State v. McCasland, 16-1178 (La.App. 1 Cir. 4/18/17), 218 So.3d 1119, 1129. While the actual discharge of the firearm is not an element of the offense of aggravated assault with a firearm, the defendant, as noted, clearly committed this offense against Precious. The jury in this case was instructed as to an offense that included the statutorily required underlying elements of assault with a firearm, with the additional element of discharge. While the jury charge was erroneous, it would appear the added element inured to the benefit of the defendant. In any event, the error was not structural and, as such, was not of such significance as to have violated fundamental requirements of due process. See State v. Hongo, 96-2060 (La. 12/2/97), 706 So.2d 419, 421-22 ; State v. Woods, 00-2147 (La.App. 1 Cir. 5/11/01), 787 So.2d 1083, 1096-97, writ denied, 01-2389 (La. 6/14/02), 817 So.2d 1153 ; see also McCasland, 218 So.3d at 1129.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant argues that two of the offenses he was charged with subject him to double jeopardy. Specifically, the defendant contends that he received multiple punishments for the same criminal conduct by being tried for both aggravated assault with a firearm and domestic abuse aggravated assault.

Double jeopardy is most properly raised in a motion to quash in the district court. The defendant did not raise the issue or file a motion to quash. Double jeopardy, however, can be raised at any time, but only once. See LSA-C.Cr.P. arts. 532(6) and 594 ; State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 149-50, writs denied, 02-0362 (La. 12/19/02), 833 So.2d 336 and 02-0209 (La. 2/14/03), 836 So.2d 134. The defendant's claim of double jeopardy, therefore, is properly before us.

Aggravated assault with a firearm is an assault committed with a firearm. LSA-R.S. 14:37.4(A). An assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. LSA-R.S. 14:36.

At the time of the incident, LSA-R.S. 14:37.7 provided, in pertinent part:

A. Domestic abuse aggravated assault is an assault with a dangerous weapon committed by one household member upon another household member.
B. For purposes of this Section, "household member" means any person of the opposite sex presently living in the same residence, or living in the same residence within five years of the occurrence of the domestic abuse aggravated assault, with the defendant as a spouse, whether married or not, or any child presently living in the same residence or living in the same residence within five years immediately prior to the occurrence of the domestic abuse aggravated assault, or any child of the offender regardless of where the child resides.
* * * * *
D .... When the state proves, in addition to the elements of the crime as set forth in Subsection A of this Section, that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence imposed by the court shall be two years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The double jeopardy clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense but also protect against multiple punishments for the same offense. When the same act or transaction constitutes a violation of two distinct statutory provisions, "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Under this test, the provisions of each statute are analyzed to determine whether each requires proof of a fact which the other does not. State v. Magee, 11-0574 (La. 9/28/12), 103 So.3d 285, 335, cert. denied, --- U.S. ----, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013).

While the defendant concedes in brief there is no violation under Blockburger, he argues that under the "same evidence test" adopted by Louisiana courts, the State violated his constitutional guarantee against double jeopardy. We recognize, however, that the Louisiana Supreme Court has recently dispensed with the "same evidence test," and indicated that Louisiana courts "are bound only to apply the standard established by the U.S. Supreme Court in Blockburger. " State v. Frank, 16-1160 (La. 10/18/17), 234 So.3d 27, 28, 2017 WL 4681941 at p 1. Even so, under either test, we conclude that the defendant was not subject to double jeopardy.

Under the "same evidence test" previously used by Louisiana courts, which is somewhat broader than the Blockburger additional fact test, a court considers the actual physical and testimonial evidence necessary to secure a conviction. State v. Williams, 07-0931 (La. 2/26/08), 978 So.2d 895, 897 (per curiam ). Under the "same evidence test," if the evidence required to support a finding of guilty of one crime would also support a conviction for another, the defendant can be placed in jeopardy for only one of the two. State v. Magee, 12-1084 (La. 8/25/14), 146 So.3d 193, 195 (per curiam ). The "same evidence test" depends upon the proof required to convict, not the evidence actually introduced at trial. State v. Knowles, 392 So.2d 651, 654 (La. 1980).

With domestic abuse aggravated assault, the assault must have been committed by a household member, whereas with aggravated assault with a firearm, there is no such status requirement of the person committing the assault. Accordingly, under Blockburger, there is no double jeopardy violation. However, the defendant argues that under the "same evidence test," the State violated his constitutional guarantee against double jeopardy. According to the defendant, all of the evidence required to support the conviction for domestic aggravated assault would support a conviction for aggravated assault with a firearm. The defendant contends the same evidence was used to convict him of both crimes; that is, for the domestic abuse aggravated assault charge, the State presented evidence that he "used a firearm to assault Ms. Kotte," and for the aggravated assault with a firearm charge, the State presented evidence that he "assaulted Ms. Kotte with a firearm." According to the defendant, such action constitutes double jeopardy.

The "same evidence test" considers the evidence necessary to secure a conviction, not the evidence actually introduced at trial. In other words, the determination is whether the evidence required to support the defendant's conviction for one crime would support his conviction for the other crime. See Magee, 146 So.3d at 195. Thus, for instance, the crime of aggravated assault with a firearm is completed when a defendant points a gun at a stranger. But the crime of domestic abuse aggravated assault has not yet been committed under the above scenario because the person being assaulted under LSA-R.S. 14:37.7 must be a household member. The gravamen of domestic abuse aggravated assault, unlike that of aggravated assault with a firearm, is an assault on a household member. See Magee, 146 So.3d at 195. Further, the crime of aggravated assault with a firearm requires that there be an assault with a gun. Domestic abuse aggravated assault, however, requires only that the assault be with a "dangerous weapon." See LSA-R.S. 14:2(3). As such, a knife used to assault a household member would constitute domestic abuse aggravated assault, but would not constitute aggravated assault with a firearm.

While it is true, as the defendant points out in brief, that the same conduct by the defendant-the use of a firearm to assault Precious Kotte-was proved by the State to establish two separate and distinct offenses, Louisiana's "same evidence" test has never been the equivalent of the "same conduct" test briefly adopted by the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990) ("[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.") (footnote omitted), and then discarded less than three years later. See United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling Corbin, reinstating Blockburger ); see also Magee, 146 So.3d at 195.

Accordingly, prosecution under the same bill of information or indictment for aggravated assault with a firearm and domestic abuse aggravated assault is not prohibited by the Double Jeopardy Clause, because the two offenses are not the same offenses for double jeopardy purposes under either the Blockburger test or the "same evidence test."

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant's convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      The defendant did not testify at trial.