author: B.L. Thomas, C.J.

text:
    Larry Michael THORNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4242
    District Court of Appeal of Florida, First District.
    May 13, 2019
    Michael Ufferman, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges his judgment and sentence for lewd and lascivious battery and sexual battery, arguing that the court erroneously excluded critical evidence under the Rape Shield statute, failed to order a competency evaluation before sentencing, and imposed a sentence based on an erroneous scoresheet.

Facts

In 2014, Appellant was charged by information with (Count One) lewd or lascivious battery (victim over 12 but under 16 years of age), and with (Count Two) sexual battery (slight force), in violation of sections 800.04(4) and 794.011(5), Florida Statutes. Before trial, the State filed a motion in limine, in which the State anticipated that Appellant would attempt to introduc e evidence of the victim's prior sexual relationships "or make some reference thereto," and argued that such evidence was inadmissible under section 794.022(2), Florida Statutes, commonly referred to as the "Rape Shield."

The court addressed the motion at a pre-trial hearing. The victim testified that she met Appellant through church when she was in fifth grade but didn't establish a relationship with him until she was a freshman in high school. She testified that Appellant helped her pay for things, including clothes and a cellphone, and helped her get a scholarship to a dance academy. The victim testified that Appellant would occasionally pay for her pedicures and give her gift cards, and she testified that Appellant stopped giving gifts to her when she stopped attending church.

The victim testified that on November 22, 2013, she was interviewed during a counseling session at the Children's Advocacy Center. Parts of a recording of this interview were played to refresh the victim's memory. In this interview, she reported that, when she was ten, her mother's boyfriend had put his fingers inside her vagina and had severely beaten her a few months earlier. During the interview, the victim also described being touched inappropriately by her great grandfather, and by someone she referred to as "the Dominican."

The victim stated in the interview that the three incidents she mentioned were the only times she had been touched inappropriately. The victim testified that she didn't mention Appellant during this interview because he asked her not to because his church "was on the line."

Appellant moved to admit evidence that the victim had reported during three prior instances of sexual battery this interview. Appellant argued that the victim was asked if she had been inappropriately touched by anyone, and the victim named three men but not Appellant. Appellant argued that the victim was being truthful in the meeting and that she had not been touched by Appellant at the time of the interview. He argued that, when considered along with evidence of a falling-out Appellant and the victim had in December 2013 or January 2014, soon after the interview, her naming of three assailants other than Appellant tended to prove the victim's motivation to fabricate the accusations. Appellant argued that after he stopped giving her gifts, the victim fabricated an allegation against him, and this defense was bolstered by evidence that she did not accuse Appellant, but did name three other men, in the interview less than a month earlier.

The court ruled that Appellant would not be allowed to introduce evidence that the victim had named three men but not Appellant in the November 22, 2013 interview. The court stated that the instances were "precluded by the Rape Shield Law" and were not relevant to Appellant's defense. The court allowed Appellant to ask the victim whether she had accused him during the interview, but not about her reporting of sexual batteries by three other men.

At trial, the victim testified before the jury about the November 22, 2013 interview. The victim testified that the interviewer asked her if anyone had touched her inappropriately, and that she did not name Appellant. The victim testified that she did not name Appellant during that interview because she was "terrified to tell" and that no one would believe her.

At sidebar, Appellant argued that, with this testimony, the victim had opened the door to the evidence of the three prior reports of sexual battery. He argued that, although she said she was terrified to name Appellant, she had named three other men in the same interview. The court denied Appellant's request to question the victim about her reporting the three prior sexual batteries.

The victim testified that she met Appellant through the church where she was a member and he was pastor; she was fourteen when she first began spending time with Appellant. She testified that she would spend the night at Appellant's house and share his bed. The victim testified that on several occasions Appellant massaged her body and inserted his fingers and tongue inside her "vaginal area." The victim testified that, once, Appellant inserted his penis partially inside her.

The victim testified that she decided to "cut off all ties" with Appellant in November 2014 after he showed her a box of condoms while they were shopping. She testified that this made her uncomfortable, and after Appellant dropped her off at her family's home that night, her "family could tell something had happened." She testified that she reported Appellant's actions.

At trial the State played a recording of a controlled phone call between Appellant and the victim. On the recording, the victim asked Appellant "why did you do that to me, though? That's the only thing that's bothering me right now." Appellant asked, "You mean us fooling around?" and stated "I don't know ... but when you get two people together ... done anything." The victim continued, "But you never answered my question. Why did you do that stuff?" Appellant responded "Yeah, it was wrong. I don't know." Appellant stated "Just know that my heart is pure. I'd never do anything to hurt you ever again. You have my word." Appellant then told the victim she "had a way of coming on to guys quickly."

Over Appellant's objections, two Williams rule witnesses testified regarding their relationships with Appellant. The first Williams rule witness was thirty-nine years old at the time of the trial. She testified she met Appellant when she was thirteen or fourteen, when she started attending the church where Appellant was a youth pastor. She testified that she and Appellant began spending time alone, and that eventually they developed a physically intimate relationship, during which Appellant penetrated her vagina with his penis. She testified that she was fourteen at the time of this relationship with Appellant, which lasted several months.

The second Williams rule witness, who was forty-three years old at the time of trial, testified that she was fourteen or fifteen when she began "hanging out" with Appellant when he became the youth pastor at her church. She testified that she would go over to Appellant's house alone, and that he would give her massages. She testified that she was sixteen and Appellant twenty-seven when they began a physically intimate relationship, involving sexual intercourse, that lasted "about a year." On cross examination, when asked about Appellant's inability to defend himself against her testimony twenty-seven years after the incident allegedly occurred, the witness replied, "Then he shouldn't have done it" and asked counsel "Did he say he didn't do it?"

A woman who worked in children's ministry for the church where Appellant was a pastor testified that she met the victim when the victim was fifteen. She testified that she continued to have contact with Appellant after he was arrested and charged in the present case, and that she would relay messages to the victim on behalf of Appellant. The witness testified that she provided gift cards to the victim and promised her a car and money for an apartment, if she dropped the charges against Appellant. This witness conceded that she had been charged with tampering with a witness related to her contact with the victim and had pleaded to the lesser included offense of tampering with evidence.

The jury found Appellant guilty as charged in the information.

In Appellant's pre-sentencing report, a probation/parole officer wrote the following:

[Appellant] stated he is suffering mentally now since being incarcerated. He stated he can hear his deceased father's voice at night. He kept crying while speaking to this Officer. He could not concentrate on what this Officer asked him. He feels his life is in danger due to other inmates.

Appellant's counsel filed an emergency motion to continue sentencing, stating that, while meeting with Appellant on August 21 and 22, 2017, "it became apparent to counsel that [Appellant] was unable to comprehend the issues with regard to sentencing or to assist his counsel in preparation for sentencing." Appellant's counsel stated that he had "reasonable grounds to believe that [Appellant] is not mentally competent to proceed." At a hearing, Appellant's counsel testified to reiterate the assertions in his motion to continue sentencing.

At the hearing, the State played recordings of jail calls between Appellant and his mother, which, according to the State, were made on August 18 and 22, 2017. In the recordings, Appellant and his mother discussed Appellant's mother meeting with an acquaintance, Appellant receiving a birthday card from his daughter, Appellant requesting an extension of time with the court to accommodate an expert witness, Appellant's mother gathering letters from acquaintances to attest to Appellants' character, and about gathering witnesses to testify at Appellant's sentencing hearing. The State argued that the jail calls showed that Appellant was participating in the preparation of his sentencing hearing, and thus understood the proceedings and was competent. The court stated it had no "reasonable belief that [Appellant] suffers from any condition, which would subject him to a competency review," and did not continue the sentencing hearing.

On Appellant's Criminal Punishment Code scoresheet, the State assessed Appellant 80 points for "Sex Penetration" for both counts, which increased Appellant's lowest permissible sentence to 182.5 months. However, the information for Count One alleged that Appellant had violated section 800.04(4) Florida Statues by inserting his penis into the victim's vagina or mouth or by "union" of his tongue with the victim's "vaginal area." The jury instructions for both counts stated that the State only needed to prove that "the sexual organ of [Appellant] penetrated or had union with the vagina of" the victim. Appellant did not object to the State's guidelines sentence calculation based on the penetration points. The court sentenced Appellant to consecutive 180-month sentences for both counts.

Appellant filed a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b). Appellant argued that because the jury instructions stated that both counts could be proven if the jury found either "union" or "penetration," and because the verdict form did not specify whether union or penetration was found, Appellant's minimum scoresheet sentence was impermissibly increased by a factor not found by the jury.

In an order on Appellant's motion to correct sentence, the court agreed that Appellant should only have been assessed 40 victim injury points for the sexual contact in Count One, rather than 80 points for sexual penetration, and ordered a corrected scoresheet be prepared. However, the court found that any scoresheet error was harmless, as the court demonstrated, through its imposition of consecutive 180-month sentences (the maximum permissible by law), that it would have imposed the same sentence even with a correct scoresheet.

Analysis

I. Whether the trial court erred in limiting evidence of the victim's sexual abuse history

Appellant argues that the trial court erred in excluding his proffered evidence that the victim had initially identified three other assailants and did not name him until a later interview. Appellant argues that this evidence was outside the ambit of the Rape Shield.

"As a general rule, a trial court's ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion." McCray v. State , 919 So. 2d 647, 649 (Fla. 1st DCA 2006). "However, a trial court's discretion over such decisions is limited by the evidence code and the applicable case law, and its interpretation of those authorities is subject to de novo review." Hendricks v. State , 34 So. 3d 819, 822 (Fla. 1st DCA 2010).

"The rape shield law does not exclude evidence that would otherwise be admissible under the Florida Evidence Code; instead, section 794.022 is a codification of Florida's relevance rules as applied to the sexual behavior of victims of sexual crimes." Teachman v. State , 264 So.3d 242, 246 (Fla. 1st DCA 2019).

The statute reads, in relevant part:

(2) Specific instances of prior consensual sexual activity between the victim and any person other than the offender may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011, or s. 800.04. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent .
(3) Notwithstanding any other provision of law, reputation evidence relating to a victim's prior sexual conduct or evidence presented for the purpose of showing that manner of dress of the victim at the time of the offense incited the sexual battery may not be admitted into evidence in a prosecution under s. 787.06, s. 794.011, or s. 800.04.

§ 794.022(2-3), Fla. Stat. (2018) (emphasis added).

As the statute plainly states, the Rape Shield "only relates to consensual sexual activity with a person other than the accused." Gomez v. State , 245 So. 3d 950, 953 (Fla. 4th DCA 2018) ; see also McLean v. State , 754 So. 2d 176, 182 (Fla. 2d DCA 2000) (holding "[t]he Rape Shield Statute ... prohibits evidence of specific instances of prior consensual activity between the victim and any person other than the offender in sexual battery cases) (emphasis added)).

Appellant did not proffer any evidence of the victim's consensual sexual acts, but rather proffered an interview in which the victim reported that three men had sexually battered her. Because the proffered evidence was of the victim's allegations of nonconsensual conduct by other men, the Rape Shield did not apply. See Gomez , 245 So. 3d at 953 ("The appellant sought to introduce the victim's prior allegation against her employer of sexual assault. As the victim did not attribute this to prior consensual conduct, it does not fit within the rape shield law"). However, the evidence was subject to the general rules of relevance.

"[R]elevant evidence is that which tends to prove or disprove a material fact." Grau v. Branham , 761 So. 2d 375, 378 (Fla. 4th DCA 2000) (citing § 90.401, Fla. Stat.). "All relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, or unless otherwise excluded by law." Id. (citing §§ 90.402, 90.403, Fla. Stat.).

Appellant's theory of defense was that the victim fabricated her allegations against him after he stopped giving her gifts, and Appellant argues that the victim's accusing three men without accusing Appellant tended to support this theory. "Because liberty is at risk in a criminal case, a defendant is afforded wide latitude to develop the motive behind a witness's testimony." Williams v. State , 912 So. 2d 66, 68 (Fla. 4th DCA 2005) (citations omitted). "The ability to expose an improper impetus for a witness's testimony is an essential component of the right to a jury trial." Id.

In Lewis v. State , 591 So. 2d 922, 925 (Fla. 1991), the supreme court recognized the general rule of relevancy regarding the prior sexual conduct of a sexual battery victim: "a victim of a sexual assault should not be subjected to having her sexual history brought up in open court," but where "application of this rule interferes with confrontation rights, or otherwise precludes a defendant from presenting a full and fair defense, the rule must give way to the defendant's constitutional rights." Here, the proffered evidence tended to prove the victim's motivation to fabricate her allegations, if the jury believed the victim did not accuse the defendant in the initial interview because the sexual activity did not occur. By excluding this evidence, the trial court prevented Appellant from "presenting a full and fair defense." Id. at 925. This was error.

II. Whether the error was harmless

The State argues alternatively that any error in excluding the evidence of the victim's other accusations was harmless. As the beneficiary of the error, the State has the burden to show that the error was harmless.

State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). "If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful." Id.

Courts have grappled with this analysis for decades. The harmless-error test is frequently explained in the negative, defined by what it is not : "The test is not a sufficiency-of the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test." Id. at 1139. "[T]he test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." Id. at 1135.

Although DiGulio states that the harmless error test is not simply one of overwhelming evidence, later supreme court cases suggest that the overwhelming evidence of a defendant's guilt may be considered in the harmless-error analysis where guilt has been established by evidence not related to the claimed error. In Cuervo v. State , 967 So. 2d 155, 178 (Fla. 2007), the jury heard unimpeached and corroborated testimony that Cuervo had stabbed the victim, thus establishing his guilt to the charged offense of attempted first-degree murder with a weapon. The supreme court held that "[a]ny error in admitting Cuervo's confession was harmless due to the overwhelming evidence of guilt against Cuervo," as "[n]one of the facts revealed in Cuervo's confession established elements of the crime that were not already established by the victim's testimony." Id. (emphasis added). In Chavez v. State , 832 So. 2d 730, 753 (Fla. 2002), Chavez's guilt for the abduction, molestation, and murder of a nine-year-old victim was established by extensive evidence, including an initial, uncoerced confession, and the supreme court held that "even assuming that suppression [of a later confession] were appropriate, given the overwhelming evidence of Chavez's guilt , the error in admitting his last confession would be harmless." (emphasis added). In Larkins v. State , 655 So. 2d 95, 98 (Fla. 1995), "there was direct evidence of Larkins' guilt, including eyewitness testimony" separate from the testimony of two witnesses whom the defense was precluded from cross examining regarding pending charges against them. The supreme court held that, "[i]n light of the overwhelming evidence of guilt and the questionable weight of the evidence of pending charges considered in the context of the other matters elicited in the proffer, we conclude that it was harmless error to deny cross-examination of the [two witnesses] with regard to pending charges." Id. at 99 (emphasis added). See also Burr v. State , 576 So. 2d 278, 280 (Fla. 1991) (holding that while admission of collateral crimes evidence was error, "we believe this error was harmless in light of the overwhelming evidence of guilt discernible in our review of the entire record" where the erroneously admitted evidence was "in addition to other evidence of guilt," Burr v. State , 550 So. 2d 444, 446 (Fla. 1989) (emphasis added)).

Errors even can also be deemed harmless where the defendant's guilt was established by evidence unrelated to the error, even where the court did not deem that properly admitted evidence to be "overwhelming." Bradley v. State , 214 So. 3d 648, 656 (Fla. 2017) (holding error related to improper impeachment of a witness was harmless where the jury also saw murder in patrol-car video and heard the defendant's confession); Johnson v. State , 994 So. 2d 960, 964-65 (Fla. 2008)

(holding error in denying defendant a jury trial on the second phase of felony DUI proceeding was harmless where the defendant's driving record indicated he had three requisite DUI convictions, establishing guilt of felony DUI). Conversely, error can be harmful even where "properly admitted evidence was sufficient to support a jury verdict of guilty." State v. Lee , 531 So. 2d 133, 136 (Fla. 1988) (holding that, even though evidence was sufficient to support a guilty verdict, "we decline to modify the DiGuilio test to require only a showing that the permissible evidence would support the conviction in order to find the erroneous admission of improper collateral crime evidence harmless"). Viewing these two propositions together and acknowledging that the State bears the burden of proving beyond a reasonable doubt that error did not affect the verdict, it follows that an error cannot be harmless if guilt is not established by the evidence unrelated to the error.

Here, the trial court erred by excluding admissible evidence offered to challenge the victim's credibility during the November 22, 2013, interview. The State argues that its case "does not rest solely on the victim's credibility" and that Appellant's guilt was established by evidence unconnected to the credibility of the victim. The State points to the controlled call, the testimony from two Williams rule witnesses, and testimony that Appellant attempted to persuade the victim to drop the charges by enlisting his assistant to offer the victim gifts.

Appellant argues conversely that because the victim's credibility was a key issue in the case, the trial court's error in preventing him from challenging that credibility cannot be harmless beyond a reasonable doubt. Appellant asserts the error was harmful because he was "prevented from informing the jury regarding the true nature of the alleged victim's November 22, 2013, denial."

At trial, the State established Appellant's guilt through evidence unrelated to the nature of the November 2013 interview. The victim testified in detail about her spending the night at Appellant's house and sharing a bed with him and testified that he inserted his fingers and penis into her vagina. The State bolstered her credibility through extensive evidence unrelated to the November 22, 2013, interview; the Williams rule witnesses, with their devastating answers on cross-examination, the controlled call, and testimony of evidence tampering all supported the State's theory that the victim's testimony was not fabricated.

In addition, Appellant was allowed to establish that the victim did not accuse him during the November interview, although we recognize that the error allowed the victim to testify she was "afraid" to report Appellant, when one of the perpetrators that she did name had beaten her. While Appellant was not allowed to elicit testimony that the victim accused others who had molested her, such collateral impeachment did not wholly deprive Appellant of the opportunity to demonstrate to the jury that the victim had not accused Appellant when she had the opportunity. And had Appellant cross examined the victim about the people who had sexually molested her, there is a reasonable possibility the answer could have engendered empathy from the jury for the victim, thereby increasing her credibility. In addition, the victim would have explained that Appellant urged her not to report him as it would cause him to lose his church. Also, the victim testified that she reported Appellant's actions after he showed her a box of condoms in November 2014, nearly a year after interview at the advocacy center. This indicates that, at the time of the interview, the victim had not yet decided that she wanted to report Appellant. Thus, we hold the error was harmless beyond a reasonable doubt in light of the extensive inculpatory evidence and the entire context of the November 2013 interview.

III. Whether the trial court erred by not ordering a competency evaluation

A trial court's determination whether to hold a competency hearing is reviewed for an abuse of discretion. Pickles v. State , 976 So. 2d 690, 692 (Fla. 4th DCA 2008). A trial court only abuses its discretion if "no reasonable person would take the view adopted by the trial court." Scott v. State , 717 So. 2d 908, 911 (Fla. 1998).

"[A] trial court has a duty to conduct a competency proceeding when it has 'reasonable ground[s] to believe that the defendant is not mentally competent to proceed[.]' " Mars v. State , 251 So. 3d 339, 345 (Fla. 1st DCA 2018) (quoting Fla. R. Crim P. 3.210(b) ). "Competency to stand trial" means the defendant can consult with counsel with a reasonable degree of rational understanding and has a rational and factual understanding of the proceedings. Id.

At a hearing on Appellant's 3.210(b) motion, Appellant's counsel testified, as he had sworn in his motion, that Appellant was unable to comprehend the issues regarding sentencing or to assist his counsel in preparation for sentencing. The court considered the presentencing report, and also considered the recordings of phone calls between Appellant and his mother, made during the time in which Appellant's counsel said Appellant was unresponsive. During the calls, Appellant conversed with his mother about multiple topics, including getting witnesses to testify and write letters on his behalf for sentencing.

Considering this evidence, the court found no reasonable ground to hold a competency hearing. The evidence presented at the hearing was conflicting, and "it is the duty of the trial court to determine what weight should be given to conflicting testimony." Mason v. State , 597 So. 2d 776, 779 (Fla. 1992). Because a reasonable person could view the recordings of the phone calls between Appellant and his mother as evidence that Appellant had a "rational and factual understanding" of the pending proceedings, the trial court did not abuse its discretion in denying Appellant's motion for a competency proceeding.

IV. Whether the scoresheet error was harmless

The State concedes that the court erroneously included "penetration points" on Appellant's scoresheet but argues that this error was harmless, because the court indicated it would have imposed the maximum 360-month sentence regardless of the lowest permissible sentence. "When scoresheet error is presented [through, inter alia , a rule 3.800(b) motion], any error is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet." Brooks v. State , 969 So. 2d 238, 241 (Fla. 2007) (emphasis removed). Despite Appellant's arguments to the contrary, the sentencing court's "post hoc" statements in an order on a rule 3.800 motion explaining the considerations it made during sentencing can serve to conclusively show that the court would have imposed the same sentence with a correct scoresheet. White v. State , 873 So. 2d 600 (Fla. 5th DCA 2004) (holding that the record conclusively showed the trial court would have imposed the same sentence even if it had a correct scoresheet where the court, in an order on a 3.800 motion, stated that the scoresheet was used "only as part of the overall sentencing decision," and that the sentence "was lawful and correct").

The court stated it would have imposed the maximum sentence regardless of the lowest permissible sentence, as indicated by its sentencing Appellant to consecutive 180-month sentences. The scoresheet error was therefore harmless.

AFFIRMED .

M.K. Thomas, J., and Gay, Shonna Young, Associate Judge, concur.

      Williams v. State , 110 So. 2d 654 (Fla. 1959).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Darrell HOLMES
    No. 2019-KP-0290
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. The district court and lower appellate court's rulings regarding the state's procedural objection are vacated because materials included in the application for post-conviction relief show that the state did not withhold the initial incident report from Mr. Holmes or his trial counsel. Therefore, the application was not timely filed in the district court, and Mr. Holmes fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Mr. Holmes has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. His claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, he has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

JOHNSON, C.J., would deny.

HUGHES, J., would deny.

GENOVESE, J., would deny.


author: PER CURIAM

text:
    IN RE: Kimberly Elizabeth DEBROCK
    NO. 2019-B-0370
    Supreme Court of Louisiana.
    May 20, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Respondent was arrested and charged with felony possession of a Schedule II controlled dangerous substance, misdemeanor theft, and misdemeanor illegal possession of stolen things. She thereafter pleaded guilty to theft under $ 1,000 and was placed on misdemeanor probation. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Kimberly Elizabeth DeBrock, Louisiana Bar Roll number 34275, be and she hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period to coincide with the term of her recovery agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the terms of the agreement may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that 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.


text:
    STATE of Louisiana v. Bruce Alvin ROBERTSON
    No. 2018-KH-1006
    Supreme Court of Louisiana.
    May 20, 2019
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Writ granted. The case is remanded to the district court for merits consideration. Applicant's claimed violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), overcomes the procedural bars of La.C.Cr.P. arts. 930.4(E) and 930.8(A) pursuant to the exception set out in La.C.Cr.P. art. 930.8(A)(1). See State ex rel. Cormier v. State , 98-2111 (La. 12/18/98), 731 So.2d 274 ("[T]he discovery of new evidence excepting a claim from the prescriptive period of La.C.Cr.P. art. 930.8 would necessarily except a claim from the repetitiveness bars of La.C.Cr.P. art. 930.4 ....").


text:
    Obadiah STEPHENSON, Jr. v. BRYCE W. HOTARD SUNBELT RENTALS, INC., and Travelers Property and Casualty Company of America
    NO. 2019-CC-0478
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
   PER CURIAM

Relators, Bryce W. Hotard Sunbelt Rentals, Inc., and Travelers Property and Casualty Company of America, filed a motion for partial summary judgment requesting dismissal of plaintiff's punitive damage claims under La. Civ. Code art. 2315.4. A divided five-judge panel of the court of appeal denied writs. Relators now seek relief in this court.

The general public policy in Louisiana is against punitive damages. Ross v. Conoco, Inc. , 02-0299 (La. 10/15/02), 828 So.2d 546, 555. Even when a statute does authorize the imposition of punitive damages, it is strictly construed. Chauvin v. Exxon Mobil Corp. , 2014-0808 (La. 12/9/14), 158 So.3d 761, 768.

In order to establish a claim for exemplary damages under La. Civ. Code art. 2315.4, party must establish the following elements: (1) that the defendant was intoxicated or had consumed a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties; (2) that the intoxication was a cause-in-fact of the resulting injuries; and (3) that the injuries were caused by the defendant's wanton or reckless disregard for the rights and safety of others. Lyons v. Progressive Ins. Co. , 03-2163 (La. App. 4 Cir. 7/21/04), 881 So.2d 124, writ denied , 04-2164 (La. 11/19/04), 888 So.2d 209.

In the instant case, it is undisputed that plaintiff is unable to establish any direct evidence that the other driver, Mr. Hotard, was intoxicated. Rather, plaintiff relies on circumstantial evidence, citing his own testimony that Mr. Hotard was nervous, sweaty and had "droopy" eyes. However, plaintiff also testified that Mr. Hotard did not smell of alcohol nor was his speech impaired. He further admitted he did not "even want to assume" that Mr. Hotard was intoxicated.

If circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. Rando v. Anco Insulations Inc. , 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1090. As relators point out, plaintiff's testimony indicating that Mr. Hotard was nervous, sweaty and had "droopy" eyes does not exclude other reasonable explanations for such symptoms other than intoxication. Indeed, respondent candidly acknowledged he could not assume Mr. Hotard was intoxicated.

Alternatively, plaintiff asserts he is entitled to the adverse presumption of spoliation because Mr. Hotard violated his employer's policy by not reporting the accident and submitting to a blood test. The adverse presumption applies against litigants who had access to evidence and did not make it available or destroyed it. Reynolds v. Bordelon , 2014-2362 (La. 6/30/15), 172 So.3d 589, 600. In this case, there is no allegation that evidence was destroyed or plaintiff was denied access to evidence. Therefore, the adverse presumption is inapplicable.

If the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. La. Code Civ. P. art. 966(D)(2) ; Bufkin v. Felipe's Louisiana, LLC , 2014-0288 (La. 10/15/14), 171 So.3d 851, 854 ; Schultz v. Guoth , 10-0343 (La.1/19/11), 57 So.3d 1002, 1006. Plaintiff is unable to produce factual support sufficient to establish he can satisfy his burden of proving Mr. Hotard was intoxicated at the time of the accident. Therefore, summary judgment in relators' favor on this issue is mandated.

Accordingly, the writ is granted. The judgment of the district court is reversed, and partial summary judgment is hereby granted in favor of relators, dismissing plaintiff's claims under La. Civ. Code art. 2315.4 with prejudice. The case is remanded to the district court for further proceedings.

HUGHES, J., would deny.


text:
    Jordain Michael BRASSEAUX v. MONCLA MARINE OPERATIONS, LLC, et al.
    NO. 2019-CC-0477
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ST. MARY
   PER CURIAM

Granted. The district court did not err in finding there were genuine issues of material fact precluding summary judgment. Accordingly, the judgment of the court of appeal is reversed, and the judgment of the district court denying defendants' motion for summary judgment is reinstated. The case is remanded to the district court for further proceedings.


text:
    IN RE: Richard C. OUSTALET, Jr.
    NO. 2019-B-0486
    Supreme Court of Louisiana.
    May 20, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent neglected his clients' legal matters, failed to communicate with his clients, relocated and accepted a position as an attorney with the State without giving notice to his clients, continued representing clients while employed with the State, and failed to return unearned fees and client files upon request. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Richard C. Oustalet, Jr., Louisiana Bar Roll number 27599, be suspended from the practice of law for a period of two years.

IT IS FURTHER ORDERED that 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.


author: PER CURIAM Hughes, J., additionally concurring.

text:
    SUCCESSION OF Colleen MCCALMONT
    NO. 2019-C-0359
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF RAPIDES
   PER CURIAM

Granted in part. We find the court of appeal erred in restricting relator's right, in his capacity as executor of the succession of Colleen McCalmont, to inspect the records of the limited liability companies in which Ms. McCalmont had an interest insofar as those records arose prior to the date of her death. Cf. Kinkle v. R.D.C., L.L.C. , 04-1092 (La. App. 3 Cir. 12/8/04), 889 So.2d 405 (explaining that an executor was not entitled to an accounting of distributions made after the decedent's date of death).

Accordingly, the judgment of the court of appeal is reversed in part. The case is remanded to the district court to fashion an appropriate discovery order permitting relator, as executor, to conduct discovery of the records of entities in which Colleen McCalmont had an interest, subject to the limitation that relator shall not be entitled to conduct discovery of any records which arose after the date of her death unless he is granted the rights of a member by the entities. In all other respects, the writ is denied.

Weimer, J., would grant and docket.

Hughes, J., additionally concurs and assigns reasons.

Hughes, J., additionally concurring.

While I agree the executor has the right to inspect the records of the limited liability companies in order to obtain the information needed to complete the successions, I would not limit that right to the date of decedent's death. The provisions of the Civil Code pertaining to successions should prevail in this matter in all respects.


text:
    Jennifer THIEN and Gina Nguyen v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College, et al.
    NO. 2019-CC-0429
    Supreme Court of Louisiana.
    May 20, 2019
    ON WRIT OF CERTIORARI, TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
   PER CURIAM

This matter arises from a petition for damages and injunctive relief filed by plaintiffs against the Board of Supervisors of Louisiana State University and Agriculture and Mechanical College ("Board") based on plaintiffs' expulsion from dental school. After trial, the district court granted plaintiffs' request for a permanent injunction and ordered their immediate reinstatement to the dental school. The district court found the procedure employed by the Board in handling the allegations against plaintiffs "clearly violated the plaintiffs' rights to procedural and substantive due process under the State and Federal Constitutions."

The Board filed a motion for suspensive appeal pursuant to La. R.S. 13:4441. The district court denied the motion. Upon the Board's application, a majority of the court of appeal reversed and ordered the district court to grant the Board a suspensive appeal over dissents by two judges. Plaintiffs now seek review in this court.

The district court did not abuse its discretion in denying the motion for suspensive appeal filed by the Board of Supervisors. See La. Code Civ. P. art. 3612(B). The provisions of La. R.S. 13:4441 are inapplicable under the facts presented. See, e.g., Student Government Association v. Board of Supervisors , 262 La. 849, 264 So.2d 916 (1972) (explaining that the administrative powers granted to the Board of Supervisors are subject to other provisions of the constitution).

Accordingly, the writ is granted. The judgment of the court of appeal is reversed, and the judgment of the district court is reinstated.

The application for rehearing is granted for the sole purpose of amending our opinion of May 20, 2019 to delete the reference to " La. R.S. 13:4441" and replace it with " La. R.S. 13:4431." In all other respects, the application for rehearing is denied, and our opinion of May 20, 2019 is affirmed as amended.

Johnson, C.J., would deny

Clark, J., would deny.


text:
    Latashia BORDEN, Individually and on Behalf of Her Deceased Husband, Kenneth Ancar v. UNITED SPECIALTY INSURANCE CO., W.B. Company, Inc, and Brandon Bonvillain
    Kenneth Ray Ancar, Jr., Keina Rai Tompkins, and Krystal Renee Ancar v. United Specialty Insurance Company, Brandon J. Bonvillain, W.B. Company, Inc., Willie Bonvillain, Jr., Josephine Trahan Bonvillain,
    Southern Aggregates LLC Delaware, Terrebonne Concrete, LLC, State Farm Mutual Ins. Co., and GEICO Casualty Co.
    NO. 2019-CC-0614
    Supreme Court of Louisiana.
    May 20, 2019
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Raymond ROBINSON
    NO. 2019-KK-0790
    Supreme Court of Louisiana.
    May 18, 2019
    Stay denied. Writ denied.


text:
    STATE of Louisiana v. Kari SHISLER
    NO. 2019-KK-0670
    Supreme Court of Louisiana.
    May 17, 2019
    Denied.


text:
    STATE of Louisiana v. Joseph DYCZEWSKI
    NO. 2019-KK-0671
    Supreme Court of Louisiana.
    May 17, 2019
    Denied.


text:
    Marcia HENRY v. Troy HENRY
    No. 2019-C-0134
    Supreme Court of Louisiana.
    May 20, 2019
    Reconsideration denied.


text:
    Dustin ROGERS änd Lacey Rogers v. INTEGRATED EXPLORATION AND PRODUCTION, LLC
    NO. 2019-C-0481
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    Roderick F. LEE v. Thomas D. SAPP, State Farm Mutual Automobile Insurance Company, BMW Financial Services, N.A., L.L.C. and Financial Services Vehicle Trust, Inc.
    NO. 2019-C-0484
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


author: HUGHES, J., would grant.

text:
    U.S BANK NATIONAL ASSOCIATION AS TRUSTEE FOR RFMI 2005S7 v. Walter C. DUMAS
    NO. 2019-CC-0620
    Supreme Court of Louisiana.
    May 20, 2019
    Stay denied. Writ denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Perry POOLER
    NO. 2018-KH-1578
    Supreme Court of Louisiana.
    May 20, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Pooler v. State, 15-1541 (La. 9/23/16), 200 So.3d 363.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Francis WINCHESTER
    NO. 2019-KH-0215
    Supreme Court of Louisiana.
    May 20, 2019
    Denied. See R.S. 15:571.15.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Amethyst Baird RATHORE (aka) Amethyst S. Baird
    NO. 2019-KO-0350
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    Mike ALVAREZ v. STATE of Louisiana
    NO. 2018-KP-1693
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
    WEIMER, J., would grant and docket.
    GUIDRY, J., would grant and docket.


text:
    STATE of Louisiana v. Francis WINCHESTER
    NO. 2018-KH-1804
    Supreme Court of Louisiana.
    May 20, 2019
    Denied. Applicant has previously exhausted his right to state collateral review and fails to show that any exception permits his successive filing. See State ex rel. Winchester v. State, 18-0005 (La. 11/05/18), 255 So.3d 1037.
   WEIMER, J., recused.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Darrell TAYLOR
    NO. 2018-KO-1914
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Troy YOUNG
    NO. 2018-K-1968
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    STATE of Louisiana v. Tyrone PARKER
    NO. 2018-KP-2101
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    STATE of Louisiana v. Mark PRIEST
    NO. 2019-KO-0418
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    Samuel MARKOVICH and Diamond Properties Northshore, L.L.C. v. Donald J. VILLERE, Individually and in His Official Capacity as Mayor of the City of Mandeville; and Christopher Brown, Individually and in His Official Capacity as Building Official for the Department of Planning and Development, City of Mandeville
    NO. 2019-C-0500
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
   HUGHES, J., would grant.


text:
    CITRUS REALTY, LLC v. Constance Carrere PARKER and Carol Carrere Thompson
    NO. 2019-C-0463
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C., and Milagro Producing, L.L.C v. PIRATE LAKE OIL CORP., et al
    NO. 2019-C-0487
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    Michael BREEN v. Allen MCMILLIN, Rodney J. Strain as Sheriff of St. Tammany Parish, Louisiana and His/Its Liability Insurer, XYZ Insurance Company
    NO. 2019-C-0493
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.


text:
    CAUSIN, L.L.C., d/b/a Bayou Safety and Supply v. PACE SAFETY CONSULTANTS, LLC and Jay R. Baker
    NO. 2019-C-0466
    Supreme Court of Louisiana.
    May 20, 2019
    Denied.
    JOHNSON, C.J., would grant and docket.
    WEIMER, J., would grant and docket.
    CRICHTON, J., would grant and docket.


author: CRICHTON, J., would grant.

text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2019-C-0080
    Supreme Court of Louisiana.
    May 20, 2019
    Not considered. See La.S.Ct.R. EX, § 6.
   CRICHTON, J., would grant.


text:
    Beverly SMITH v. CITADEL INSURANCE COMPANY as Successor to Gramercy Insurance Company and GoAuto Insurance Company
    NO. 2019-CC-0052
    Supreme Court of Louisiana.
    May 20, 2019
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    Cynthia SIMONEAUX, et al. v. SHELL OIL COMPANY, et al.
    NO. 2019-CC-0360
    Supreme Court of Louisiana.
    May 20, 2019
    Granted. See Order Attached.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.