author: Judge Rosemary Ledet

text:
    STATE of Louisiana v. Herman F. WELLS
    NO. 2018-KA-0765
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Sharon K. Hunter, 2629 Dante Street, New Orleans, LA 70118, COUNSEL FOR DEFENDANT/APPELLEE
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Irena Zajickova, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70112, COUNSEL FOR APPELLANT/THE STATE OF LOUISIANA
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Rosemary Ledet

This is a State appeal from the quashal of a prosecution for failure to pay a child support obligation. For the reasons that follow, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

For the purposes of this appeal, it is undisputed that Herman Wells owes an ongoing obligation to pay child support arising from a consent judgment entered in a civil child support proceeding pending before the Jefferson Parish Juvenile Court (the "Child Support Case"). It is also undisputed that, as a result of Mr. Wells' failure to make payments as required in the Child Support Case, the Jefferson Parish Juvenile Court entered a contempt judgment on July 21, 2015, making executory arrearages in the amount of $25,308.11.

On August 25, 2017, the State filed a bill of information charging Mr. Wells with one count of failure to pay a child support obligation in excess of $15,000, a felony violation of La. R.S. 14:75(C)(5) (the "Orleans Parish Prosecution"). The bill of information alleges that, between July 21, 2015 and August 25, 2017, Mr. Wells failed to pay child support in the amount of $25,000 or more.

Before arraignment, Mr. Wells filed a motion to quash the Orleans Parish Prosecution; and the State filed an opposition. On October 3, 2017, Mr. Wells failed to appear for arraignment; and the State and defense counsel requested that the arraignment be reset. Instead, the district court addressed the motion to quash. After argument, the district court granted the motion. This appeal followed.

DISCUSSION

In State v. Trepagnier , 14-0808, p. 5, n. 3 (La. App. 4 Cir. 11/19/14), 154 So.3d 670, 673, this court set forth the standard of review for a district court's ruling on a motion to quash as follows:

The standard of review that we apply in reviewing a district court's ruling on a motion to quash varies based on the types of issues presented. When solely legal issues are presented-such as in the present case involving a motion to quash under La.C.Cr.P. art. 535 A(1) for failure to charge an offense punishable under a valid statute-we apply a de novo standard of review. State v. Olivia , 13-0496, pp. 2-3 (La. App. 4 Cir. 3/26/14), 137 So.3d 752, 754 ; State v. Schmolke , 12-0406, p. 4 (La. App. 4 Cir. 1/16/13), 108 So.3d 296, 299 ; see also State v. Hamdan , 12-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816 (noting that "[o]n appeal from the trial court's ruling on a motion to quash, the trial court's legal findings are subject to a de novo standard of review"). In contrast, when mixed issues of fact and law are presented-such as speedy trial violations and nolle prosequi dismissal-reinstitution cases-we apply an abuse of discretion standard. State v. Hall , 13-0453, pp. 11-12 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 39 (citing State v. Tran , 12-1219, p. 2 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3 ) (explaining that "[i]n reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge's ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion"); State v. Love , 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206 ("[b]ecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion").

Id. ; see also State v. Kelly , 13-0715, p. 2, n. 2 (La. App. 4 Cir. 1/8/14), 133 So.3d 25, 27 ; State v. Williams , 14-0477, p. 6 (La. App. 4 Cir. 12/17/14), 156 So.3d 1285, 1288 (quoting Kelly, supra ).

In his motion to quash, Mr. Wells asserted two grounds: lis pendens and res judicata . In granting the motion, however, the district court relied on a third ground not asserted in the motion-jurisdiction. In its sole assignment of error, the State contends that the district court erred in granting the motion to quash for lack of jurisdiction because the Orleans Parish Criminal District Court has jurisdiction over this prosecution.

As one commentator has observed, in criminal cases, "[t]he concept of jurisdiction encompasses several different types of limitation upon judicial authority." WAYNE

R. LAFAVE, ET AL. , 4 CRIMINAL PROCEDURE (" LAFAVE "), § 16.1(a) (4th ed. 2003). Only two of those limitations- subject matter jurisdiction and venue-are at issue in this case. Because the district court did not specify on which limitation it based its decision, we address both.

Subject Matter Jurisdiction

Subject matter jurisdiction is the authority of a court to hear and adjudicate certain types of cases. In Louisiana, subject matter jurisdiction over felony prosecutions is conferred exclusively on district courts. La. Const., Art. V, § 16 (providing that district courts "shall have original jurisdiction of ... criminal matters [and] ... exclusive original jurisdiction of felony cases"). Notwithstanding this jurisdictional grant, the Louisiana Constitution authorizes the Legislature to confer subject matter jurisdiction on juvenile and family courts by statute. La. Const., Art. V, § 18. (providing that, "[n]otwithstanding any contrary provision of [ La. Const., Art. V, § 16 ], juvenile and family courts shall have jurisdiction as provided by law").

Mr. Wells contends that the Legislature has, by statute, conferred on juvenile courts exclusive original jurisdiction-i.e. , subject matter jurisdiction-over prosecutions under La. R.S. 14:75. In support, Mr. Wells cites La. R.S. 13:1599(A) and 14:92.1(A)(4) -both of which confer on juvenile courts exclusive original jurisdiction over prosecutions under La. R.S. 14:92.1, which defines the crime of encouraging or contributing to child delinquency, dependency, or neglect.

Mr. Wells concedes that he is not charged with violating La. R.S. 14:92.1. He, nonetheless, contends that the grants of exclusive original jurisdiction in La. R.S. 13:1599(A) and 14:92.1(A)(4) extend to prosecutions for violations of La. R.S. 14:75 because the crime defined in La. R.S. 14:92.1"includes descriptions of the actions that constitute the offense" defined in La. R.S. 14:75. Stated another way, Mr. Wells contends that any time a parent fails to pay child support, the parent necessarily contributes to the dependency and neglect of the child; and, thus, under La. R.S. 13:1599(A) and 14:92.1(A)(4), the two crimes are both subject to the exclusive original jurisdiction of the juvenile courts.

Examination of the statutory language belies Mr. Wells' argument. Contrary to Mr. Wells' contention, the language of La. R.S. 14:92.1 does not expressly refer to the actions that constitute the crime of failure to pay a child support obligation, as defined by La. R.S. 14:75. Nor is the failure to pay a child support obligation a necessary or a sufficient condition to impose criminal liability for encouraging or contributing to child delinquency, dependency, or neglect. In short, they are distinct crimes; and, thus, Mr. Wells' argument would require a liberal construction of the jurisdictional grants of La. R.S. 13:1599(A) and 14:92.1(A)(4).

It is, however, well settled that, "the general rule is that district courts are vested with original jurisdiction and exceptions to this general rule are to be narrowly construed." Gunderson v. F.A. Richard & Assocs., Inc. , 07-331, p. 4 (La. App. 3 Cir. 2/27/08), 977 So.2d 1128, 1133 ; see also DeMarco v. David Briggs Enterprises, Inc. , 09-0615, pp. 3-4 (La. App. 4 Cir. 1/13/10), 30 So.3d 246, 249. Thus, the jurisdictional grants in La. R.S. 13:1599(A) and 14:92.1(A)(4) cannot be liberally construed to extend beyond their plain language to confer on juvenile courts subject matter jurisdiction over prosecutions for failure to pay child support under La. R.S. 14:75.

To summarize, Mr. Wells is charged with a felony grade of failure to pay a child support obligation. Thus, subject matter jurisdiction over this case is vested exclusively in the district courts. Mr. Wells has pointed to no constitutional or statutory provision purporting to create an exception that would confer subject matter jurisdiction on the juvenile courts. Accordingly, to the extent the district court found that it lacked subject matter jurisdiction over this case, the district court erred. See Gandy v. Key Realty, L.L.C. , 13-712, p. 2 (La. App. 3 Cir. 12/11/13), 128 So.3d 678, 679 (observing that "[a]n issue of subject matter jurisdiction raises a question of law which is reviewed de novo to determine whether the lower court was legally correct").

Venue

In his motion to quash, Mr. Wells asserted that this case was not properly pending before the Orleans Parish Criminal District Court. Although Mr. Wells presented this argument as an exception of lis pendens , it is well settled that the doctrine of lis pendens does not exist at criminal law; instead, it is a distinctly civil law concept. See State v. McGarrity, 140 La. 436, 73 So. 259, 260 (1916) (observing that "it is hornbook law that a plea of lis pendens is not admissible in criminal cases"); State v. Michel , 111 La. 434, 35 So. 629, 630 (1904) (observing that "the plea of lis pendens does not hold [in criminal cases] as in civil cases"). Thus, Mr. Wells' assertion that the Orleans Parish Prosecution is barred under the doctrine of lis pendens is inapposite.

Nonetheless, looking through the form of Mr. Wells' assertion to its substance, Mr. Wells' actual argument is that the Orleans Parish Prosecution is barred because venue for this prosecution lies exclusively in Jefferson Parish. In Louisiana, "[v]enue is jurisdictional in criminal cases." State v. Burnett , 33,739, p. 7 (La. App. 2 Cir. 10/4/00), 768 So.2d 783, 789 ; La. C.Cr.P. art. 615 (describing venue as a "jurisdictional matter"). Generally, venue lies "in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law." La. Const., Art. I, § 16 ; see also La. C.Cr.P. art. 611(A) (providing that venue lies "in the parish where the offense has been committed, unless the venue is changed" and that "[i]f acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred"). For crimes that consist of a failure to perform a duty imposed by law, however, venue lies "in the place where the duty should be performed, unless there is a statute fixing the venue elsewhere." State v. Wells , 195 La. 758, 197 So. 420, 422 (1940).

A defendant wishing to assert improper venue must do so in advance of trial by filing a motion to quash. La. C.Cr.P. art. 615. Because venue is a question of fact, a district court presented with a motion to quash asserting improper venue must hold an evidentiary hearing on the issue. State v. Skipper , 387 So.2d 592, 594 (La. 1980) (observing that venue is a question of fact); La. C.Cr.P. art. 615 (providing that "[i]mproper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone"). At the hearing, the State bears the burden of proving venue by a preponderance of the evidence. Id. (providing that "[v]enue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial").

In this case, the bill of information charged Mr. Wells with the failure to perform a duty imposed by law-payment of child support. The statute under which Mr. Wells is being prosecuted- La. R.S. 14:75 -contains a provision fixing the venue for such prosecutions as follows:

With respect to an offense under this Section, an action may be prosecuted in a judicial district court in this state in which any child who is the subject of the support obligation involved resided during a period during which an obligor failed to meet that support obligation; or the judicial district in which the obligor resided during a period described in Subsection B of this Section; or any other judicial district with jurisdiction otherwise provided for by law.

La. R.S. 14:75(D). Thus, to establish venue in Orleans Parish, the State bore the burden of proving-at a pretrial evidentiary hearing-that either Mr. Wells or his child resided in Orleans Parish between July 21, 2015 and August 25, 2017 (the date the bill of information was filed). Because the district court granted the motion to quash without holding an evidentiary hearing, we find the judgment granting the motion to quash was premature. Thus, we vacate the judgment and remand for an evidentiary hearing.

DECREE

For the foregoing reasons, the judgment of the district court is vacated; and the case is remanded for further proceedings.

VACATED AND REMANDED

LOMBARD, J., DISSENTS

LOMBARD, J., DISSENTS, The defendant's child support obligation arises out of a consent judgment entered in a child support proceeding in Jefferson Parish. Likewise, the civil judgment of 2015 (finding that the defendant's arrears in child support exceeded $15,000) was entered in Jefferson Parish. Based on this, the district court found that jurisdiction was proper in Jefferson Parish and quashed the bill of information filed by the Orleans Parish District Attorney. This determination was within the district court's discretionary authority and, accordingly, I respectfully dissent from the majority decision to vacate the district court judgment.

      Mr. Wells styled this pleading an "Exception of Lis Pendens / Res Judiciata and Motion to Dismiss." The Louisiana Code of Criminal Procedure, however, does not authorize the filing of exceptions or motions to dismiss; instead, with few exceptions not relevant here, "[a]ll pleas or defenses raised before trial ... shall be urged by a motion to quash." La. C.Cr.P. art. 531. Accordingly, we construe Mr. Wells' pleading as a motion to quash. See State v. Webb , 15-0962, p. 1 (La. 9/25/15), 175 So.3d 954, 955 (observing that "[c]ourts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the parties") (quoting Smith v. Cajun Insulation , 392 So.2d 398, 402 n. 2 (La.1980) (internal quotation marks omitted) ).

      Ordinarily, a judgment granting a motion to quash based on a ground not urged in the motion is subject to reversal. La. C.Cr.P. art. 536 (providing that a motion to quash "shall be in writing," that it must "specify distinctly the grounds on which it is based," and that a district court "shall hear no objection based on grounds not stated in the motion"); see also State v. DeGeorge , 90-159 (La. App. 4 Cir. 1990), 572 So.2d 696, 697 (reversing a judgment granting a motion to quash based on a ground not stated in the motion). When, as in this case, however, the State fails to object to the district court's judgment on that basis and fails to assign as error and brief the issue on appeal, the State is deemed to have "waived any claim it may have [had] that the trial court could not consider" the ground not raised in the motion to quash. State v. Mathews , 12-0182, p. 10 (La. App. 4 Cir. 2/6/13), 109 So.3d 984, 991, rev'd on other grounds , 13-0525 (La. 11/15/13), 129 So.3d 1217. Accordingly, we review the merits of the district court's judgment granting Mr. Wells' motion to quash on the ground of jurisdiction.

      These limitations fall into essentially four categories: (1) territorial jurisdiction; (2) subject matter jurisdiction; (3) personal jurisdiction; and (4) venue. See LaFave , § 16.4(a), n. 1 (describing the various types of limitations).

      In granting the motion to quash, the district court ordered Mr. Wells to present the court with a proposed written judgment. Although the record contains two copies of a proposed judgment, neither is signed. Nonetheless, before ruling on the motion, the district court expressed the belief that the "failure to pay child support was only handled in juvenile court" and that "Jefferson [Parish] retains jurisdiction." Then, in granting the motion, the district court stated, "I granted it because it's the wrong jurisdiction."

      See Black's Law Dictionary (10th ed. 2014) (defining subject matter jurisdiction as "[j]urisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things"); see also Huval v. State through Dep't of Pub. Safety & Corr., Office of State Police , 16-1857, p. 6 (La. 5/3/17), 222 So.3d 665, 668 (observing that "[j]urisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted") (quoting La. C.C.P. art. 2 ).

      La. R.S. 13:1599(A) provides as follows:
      A juvenile court in and for the parish of Jefferson is hereby created. The jurisdiction of the court shall be the same as the jurisdiction of other juvenile courts created pursuant to Article VII, Section 52 of the Louisiana Constitution of 1921 and the juvenile court law. Notwithstanding any provisions of the law to the contrary, the court shall have exclusive original jurisdiction to try any adult charged with a violation of R.S. 14:92.1.

      La. R.S. 14:92.1(A)(4) provides as follows: "Exclusive jurisdiction of the offense defined in this Section is hereby conferred on juvenile courts, in accordance with the provisions of law establishing such courts."

      The crime of encouraging or contributing to child delinquency, dependency, or neglect is defined by La. R.S. 14:92.1(A)(1) as follows:
      In all cases where any child shall be a delinquent, dependent, or neglected child, as defined in the statutes of this state or by this Section, irrespective of whether any former proceedings have been had to determine the status of such child, the parent or parents, legal guardian, or any person having the custody of such child, or any other person or persons who shall by any act encourage, cause, or contribute to the dependency or delinquency of such child, or who acts in conjunction with such child in the acts which cause such child to be dependent or delinquent, shall be punished by a fine not exceeding one thousand dollars, or by imprisonment for not more than six months, or by both fine and imprisonment.
      By contrast, the crime of failure to pay a child support obligation is defined by La. R.S. 14:75(B) as follows:
      It shall be unlawful for any obligor to intentionally fail to pay a support obligation for any child who resides in the state of Louisiana, if such obligation has remained unpaid for a period longer than six months or is greater than two thousand five hundred dollars.

      See La. R.S. 14:75(C)(5) (providing that "[t]he penalty for failure to pay a legal child support obligation when the amount of the arrearage is more than fifteen thousand dollars and the obligation has been outstanding for at least one year shall be a fine of not more than twenty-five hundred dollars, or imprisonment with or without hard labor for not more than two years, or both").

      Attempting to overcome this distinction, Mr. Wells contends that the Orleans Parish Prosecution, rather than being a criminal proceeding, is essentially a civil enforcement proceeding because "the goal is to effectuate ... payment of child support ...." and that, thus, "Jefferson Parish should be the enforcement authority of any action regarding this case." While it is true that La. R.S. 14:75 requires a sentencing court to order restitution in an amount equal to the total unpaid support obligation as it exists at the time of sentencing and permits a sentencing court to suspend all or any portion of the imposition or execution of the sentence otherwise required when restitution is made prior to the time of sentencing, these provisions do not render the Orleans Parish Prosecution a civil enforcement action. Instead, it is axiomatic that "[a] criminal prosecution is brought in the name of the state in a court of criminal jurisdiction, for the purpose of bringing to punishment one who has violated a criminal law," and that "[t]he person injured by the commission of an offense is not a party to the criminal prosecution, and his rights are not affected thereby." La. C.Cr.P. art. 381. Thus, it is well settled that the availability or payment of restitution does not transform a criminal case into a civil case and will not support the grant of a motion to quash. See generally Trepagnier , 14-0808 at p. 10, 154 So.3d at 676 ( holding that the existence of a private restitution agreement does not transform a criminal case into a civil case and observing that "this court has held that the fact a dispute can viewed as 'civil' in nature is not a valid reason to grant a motion to quash") (citing State v. Brooks , 13-0540, p. 13 (La. App. 4 Cir. 9/18/13), 124 So.3d 1129, 1136 ; State v. Schmolke , 12-0406, p. 8 (La. App. 4 Cir. 1/16/13), 108 So.3d 296, 301 ; State v. Severin , 12-0205, pp. 3-4 (La. App. 4 Cir. 10/17/12) (unpub. ), 2012 WL 6619009).

      In finding that "Jefferson [Parish] retains jurisdiction," the district court appears to have agreed with this argument.

      Accord State v. Major , 13-1139, p. 13 (La. App. 4 Cir. 4/9/14), 140 So.3d 174, 182 (finding that the trial court "abused its discretion by granting the defendant's motion to quash ... without affording the state with an adequate evidentiary hearing" and remanding with instruction to hold the hearing); State v. Morrison , 13-1067, p. 9 (La. App. 4 Cir. 3/19/14), 137 So.3d 736, 740-41 (finding that "the trial court abused its discretion in granting Mr. Morrison's Motion to Quash without a full evidentiary hearing on the matter" and remanding).

      In addition to lis pendens , Mr. Wells asserted in his motion to quash that the Orleans Parish Prosecution was barred by res judicata -essentially, a claim of collateral estoppel under the Double Jeopardy Clause. See Ashe v. Swenson , 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) ; see also State v. Butler , 14-1016, p. 2 (La. App. 4 Cir. 2/11/15), 162 So.3d 455, 458-59 (interpreting a defendant's claim of res judiciata to be a claim of collateral estoppel, as discussed in Ashe ). As with the issue of venue, the issue of collateral estoppel is a question of fact, requiring an evidentiary hearing. See Butler , supra ; see also Gail Dalton Schlosser, Louisiana Criminal Trial Practice , § 14:11 (4th ed.) (observing that, at a hearing on a defendant's motion to quash on the ground of double jeopardy, "[t]he defendant bears the initial burden of establishing a nonfrivolous claim of double jeopardy after which the burden shifts to the prosecution to demonstrate by a preponderance of the evidence why double jeopardy does not bar prosecution") (citing United States v. Schinnell , 80 F.3d 1064 (5th Cir.1996) ; State v. Green , 96-0256 (La. App. 1 Cir. 12/10/96), 687 So.2d 109 ). Accordingly, the scope of the evidentiary hearing on remand should embrace, and the district court should individually address, both venue and collateral estoppel.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Oliver LEWIS
    NO. 2018-KA-0662
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Irena Zajickova, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073--2333, COUNSEL FOR APPELLANT
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
    Judge Joy Cossich Lobrano Defendant, Oliver Lewis ("Defendant"), appeals his convictions for aggravated rape and unauthorized entry of an inhabited dwelling. After reviewing the record and applicable law, we affirm the convictions.
    Following his indictment on charges of aggravated rape and aggravated burglary, Defendant pled not guilty to both charges. A jury found Defendant guilty of aggravated rape and returned the responsive verdict of unauthorized entry of an inhabited dwelling on the burglary count. The district court denied Defendant's motion for new trial and imposed consecutive terms of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. After Defendant was granted an out-of-time appeal, we remanded the case to the district court based on an incomplete record of the voir dire :
    Similar to [State v. ] Handy, [17-1823, (La. 12/15/17), 231 So.3d 609], the parties here do not dispute that Mr. Lewis exhausted his peremptory challenges and the present record does not include a basis for the trial court's rulings excusing eleven potential jurors. Although the State argues that the defense was required to lodge an on-the-record objection to any adverse rulings excusing a juror to preserve the issue for review, the off-the-record nature of the voir dire examination renders it impossible to ascertain whether the defense objected. The trial court questioned the jurors before excusing them. Thus, presumably they were not removed pursuant to a joint motion.
    Given these facts, the Supreme Court's recent holding in Handy , and to afford Mr. Lewis meaningful appellate review, we remand the matter to the trial court to determine whether any documentation created contemporaneous to the trial court's rulings excusing the jurors exists.
    State v. Lewis , 17-0255, p. 4 (La.App. 4 Cir. 2/7/18), 238 So.3d 509, 512.
    On March 16, 2018, the district court conducted a hearing and determined that two of the jurors had been excused without objection. As to the nine remaining jurors, the court located documentation concerning the discussions related to their removals, after which defense counsel filed a motion to supplement the record with the material. This timely appeal followed.
    The evidence presented at trial in support of the convictions is at most tangentially relevant to Defendant's claim on appeal-that the court erred when it denied two of his defense challenges for cause because the prospective jurors themselves were sex-crime survivors.
    The female victim ("Victim') was eleven years old at the time of the crime. Defendant, a former boyfriend of Victim's mother, entered the residence without authorization, possibly by climbing onto a balcony located on the second floor. Defendant was caught by Victim's stepfather in bed with her. Officers responded to the scene where they encountered the naked Defendant restrained by Victim's stepfather. Bodycam footage depicted Victim accusing Defendant of forcing her to perform oral sex and vaginally and anally raping her. Genetic testing conducted on bodily fluids collected from Victim were consistent with Defendant's profile.
    A review for errors patent on the face of the record reveals none.
    In his sole assignment of error, Defendant contends that the district court erroneously denied his cause challenges to two prospective jurors who could not adjudicate his guilt impartially and/or accept the law as given because they had been victims of similar crimes.
    "[P]rejudice is presumed when a challenge for cause has been erroneously denied by a trial court, and the defendant exhausts all peremptory challenges statutorily afforded to the defendant." State v. Harrison , 17-0054, p. 17 (La.App. 4 Cir. 3/21/18), 239 So.3d 406, 417, citing State v. Juniors , 03-2425, p. 8 (La. 6/29/05), 915 So.2d 291, 305. Because the State does not contest that the defense exhausted its peremptory challenges, the only issue before us is whether the district court erred when it denied the challenges for cause complained of in this appeal.
    La. C.Cr.P. art. 797, which authorizes when the state and defense may challenge a juror for cause, states in pertinent part:
    (2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
    ***

      As set out in this Court's earlier opinion remanding the case:
      Mr. Lewis filed a pro se , handwritten, motion for new trial, upon which the trial court failed to rule before imposing his sentence. However, before the trial court sentenced Mr. Lewis, it inquired whether there existed "any other motions outstanding" and Mr. Lewis' counsel responded in the negative. Mr. Lewis then interrupted and verbally protested his innocence, while making no reference to the pending motion. Under these circumstances, the technical failure to comply with La. C.Cr.P. art. 853 does not warrant intervention. There are no other errors patent. Lewis, 17-0255, pp. 1-2, 238 So.3d at 510.

   (4) The juror will not accept the law as given to him by the court[.]

A district court is vested with broad discretion in ruling on challenges for cause, and such a ruling is subject to reversal only when a review of the entire voir dire reveals the court abused its discretion. State v. Dotson, 16-0473, p. 5 (La. 10/18/17), 234 So.3d 34, 39 (citation omitted). This standard of review is utilized "because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties' attorneys." Id., 16-0473, p. 17, 234 So.3d at 45 (citations omitted). "Such expressions and intonations are not readily apparent at the appellate level where review is based on a cold record." Id.

Defendant first complains that the court should have granted his challenge to the prospective juror, claiming that as a victim of a similar attack herself at the hands of an authority figure, lacked the ability to adjudicate his guilt according to the law and evidence. The incident had occurred approximately fifty years earlier when she was a juvenile. Notwithstanding her history as a sexual assault victim, the juror responded to the district attorney that she could return a not guilty verdict if the state failed to prove its case beyond a reasonable doubt. In fact, when cross-examined by defense counsel concerning that response, she stated she could "definitely" separate her emotional response from her objective evaluation of the evidence. The juror concluded by assuring defense counsel that she could be "balanced and fair." The court denied the ensuing defense challenge for cause, noting it was a "close" call.

Defendant likewise complains that another juror should have been excused for cause as incapable of fairly judging his case based on her experiences as a victim of sex crimes as a child and young adult. Despite her history, the juror responded affirmatively when asked by the district attorney if she could return a not guilty verdict if the state did not prove its case beyond a reasonable doubt. She explained to defense counsel that she thought she would do the "right thing" but wanted to disclose her history as a sexual abuse victim so as not to be "unfair to anybody." When questioned by the court, the juror indicated she believed she could adjudicate the case based on the evidence as opposed to being influenced by her own experiences. While she acknowledged that she might "lean" upon personal experience, she reiterated her belief that she could be fair and find Defendant not guilty if the state did not prove its case. Again acknowledging that it was a "close" case, the court denied Defendant's cause challenge.

Given the deference afforded the district court when ruling on such challenges, Defendant does not show that the court erred when it found the prospective jurors could adjudicate his guilt according to the law and evidence notwithstanding that they had been the victims of somewhat similar crimes themselves. See generally State v. Dorsey, 10-0216, p. 38 (La. 9/7/11), 74 So.3d 603, 631 (fact that a juror had previously been victim of crime will not disqualify that juror from serving so long as the juror remains impartial); see also State v. Mazique , 09-845, p. 23 (La.App. 5 Cir 4/27/10), 40 So.3d 224, 239-40 (no abuse of discretion when court denied cause challenge to a prospective juror in case where the accused had been charged with incest and pornography involving juveniles notwithstanding that the juror had daughter who had been molested and became visibly upset during voir dire when questioned about the case; juror subsequently indicated she could adjudicate case based on the evidence presented); State v. Robinson, 36,147, pp. 9-10 (La.App. 2 Cir. 12/11/02), 833 So.2d 1207, 1213-14 (no abuse of discretion when denying cause challenge to prospective juror who was a childhood rape victim and had a relative who was a victim of rape and murder in case of a defendant charged with forcible rape; juror stated past experiences would not affect her ability to act impartially).

While both jurors had been victims of sex crimes, they each expressed their opinions that they could decide the case based on the law and evidence. Cf. Dorsey, 10-0216, pp. 23-24, 74 So.3d at 622 ("A prospective juror's seemingly prejudicial response is not grounds for an automatic challenge for cause, and a district judge's refusal to excuse him on the grounds of impartiality is not an abuse of discretion, if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence." (Citations omitted.) )

Defendant has failed to demonstrate that the court abused its discretion when it denied his challenges for cause. Accordingly, we find no merit in Defendant's assignment of error and affirm the convictions.

AFFIRMED.


author: Judge Terri F. Love

text:
    ALFRED CONHAGEN, INC. OF LOUISIANA v. RUHRPUMPEN, INC. and Waldemar S. Nelson and Company, Inc.
    Alfred Conhagen, Inc. of Louisiana v. Ruhrpumpen, Inc. and Waldemar S. Nelson and Company, Inc.
    NO. 2018-CA-0414 NO. 2018-CA-0549
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Gerald A. Melchiode, Renee S. Melchiode, James J. Reeves, II, MELCHIODE MARKS KING LLC, 639 Loyola Avenue, Suite 2550, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLEE, ALFRED CONHAGEN, INC. OF LOUISIANA
    Larry G. Canada, Richard G. Duplantier, Jr., John F. McCormick, Jennifer R. Buckingham, GALLOWAY JOHNSON TOMPKINS BURR & SMITH APLC, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, COUNSEL FOR WALDEMAR S. NELSON AND COMPANY, INC.
    Roy C. Cheatwood, Leopoldo J. Yanez, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLANT, RUHRPUMPEN, INC.
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
   Judge Terri F. Love

This appeal arises from a design build contract for the construction of a high pressure industrial pump for NASA. The mechanical subcontractor utilized an initial budget quote from the builder to assemble a bid for the NASA project. The final quote was over one million dollars above the initial quote. As a result, the mechanical subcontractor was required to expend extra monies to complete the project. The mechanical subcontractor then filed suit against the engineering company and the builder based on detrimental reliance and negligence. The trial court granted a motion for summary judgment prior to the trial on the merits that dismissed all negligence claims against the engineering company. The trial court proceeded to conduct a three-day bench trial on the merits. Both the builder and mechanical subcontractor appealed. Finding that the trial court erroneously partially granted the engineering company's summary judgment, we reverse the trial court's judgment, and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Healtheon, Inc. ("Healtheon"), a general contractor, assembled a design-build team to create a bid on a NASA Stennis Space Center pump installation project. Healtheon contacted Alfred Conhagen, Inc. of Louisiana ("Conhagen") to provide the high pressure water pump system as the mechanical subcontractor. Conhagen then suggested that Waldemar S. Nelson and Company, Inc. ("Nelson") for design engineering services. Ruhrpumpen, Inc. ("Ruhrpumpen") provided Nelson with a quote on a pump package for the project. Conhagen relied upon Ruhrpumpen's quote of $734,480.00 to construct a proposed bid. However, Ruhrpumpen's final quote was $1,793,360.00.

As a result of the increase of over a million dollars, Conhagen contends that it had to seek other materials at the last minute, which cost a substantial amount of money. Thus, Conhagen filed a Petition for Damages against Ruhrpumpen and Nelson contending that they were negligent and caused Conhagen to rely to its detriment on the initial quote. Nelson filed a Motion for Summary Judgment asserting that no genuine issues of material fact existed because it was not negligent and did not cause Conhagen to detrimentally rely upon the initial quote. Ruhrpumpen also filed a similar Motion for Summary Judgment. The trial court denied all of the Motions for Summary Judgment except for Nelson's Motion for Summary Judgment regarding negligence. The trial court granted Nelson's Motion for Summary Judgment in part and dismissed all of Conhagen's negligence claims against Nelson with prejudice.

The matter proceeded to trial. Following a three-day bench trial, the trial court issued a judgment finding Ruhrpumpen one hundred percent liable to Conhagen based on negligence and detrimental reliance. The trial court found that Nelson was not liable for damages resulting from alleged detrimental reliance. The trial court awarded Conhagen $927,560.30, plus interest and court costs from Ruhrpumpen.

Ruhrpumpen filed a suspensive appeal contending that the trial court: 1) committed manifest error by denying its motion for involuntary dismissal and holding it liable for negligence and detrimental reliance; 2) erred by not assigning fault to Conhagen and Nelson for their negligence; 3) erroneously denied the previous Motion for Summary Judgment; 4) erroneously granted Nelson's Motion for Summary Judgment in part; and 5) abused its discretion by admitting evidence of actions after Conhagen utilized Ruhrpumpen's initial quote in its quote to Healtheon. Conhagen also filed a devolutive appeal. Conhagen sought to protect its right to receive funds from Nelson should this Court find Nelson at fault.

SUMMARY JUDGMENT

Ruhrpumpen contends that the trial court erroneously granted part of Nelson's Motion for Summary Judgment by finding that Nelson was not negligent prior to trial. We find this issue dispositive.

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." La. C.C.P. art. 966(A)(2). "The procedure is favored and shall be construed to accomplish these ends." Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

The burden of proof lies with the mover. La. C.C.P. art. 966(D)(1). "Nevertheless, if the mover will not bear the burden of proof at trial on the issue ... the mover's burden ... does not require him to negate all essential elements of the adverse party's claim." La. C.C.P. art. 966(D)(1). Rather, the mover must "point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1). If the mover meets his burden, then "[t]he burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La. C.C.P. art. 966(D)(1).

"The standard of review of the granting of a summary judgment is de novo ." Bayer v. Starr Int'l Corp. , 17-0948, p. 3 (La. App. 4 Cir. 5/2/18), 246 So.3d 46, 49. We use "the same criteria that govern[s] the district court's consideration of whether summary judgment is appropriate." Jamison v. D'Amico , 06-0842, p. 2 (La. App. 4 Cir. 3/14/07), 955 So.2d 161, 163.

"A motion for a summary judgment is not to be used as a substitute for trial on the merits." Rapp v. City of New Orleans , 95-1638, p. 3 (La. App. 4 Cir. 9/18/96), 681 So.2d 433, 437. This is the case "even where it might appear to the court that the pleadings are frivolous and the party so pleading has little chance of success at trial." Walker v. Schwegmann Giant Supermarkets, Inc. , 95-1934, p. 8 (La. App. 4 Cir. 3/14/96), 671 So.2d 983, 988.

Negligence

"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. C.C. art. 2315(A). "The standard negligence analysis we employ in determining whether to impose liability under La. C.C. art. 2315 is the duty/risk analysis." Mathieu v. Imperial Toy Corp. , 94-0952, p. 4 (La. 11/30/94), 646 So.2d 318, 321. This analysis requires that the plaintiff prove the following:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).

Id. , 94-0952, pp. 4-5, 646 So.2d at 322.

Nelson contends that the Motion for Summary Judgment should not be overruled because Conhagen failed to put forth evidence of the duty element, i.e., the standard of care that Nelson allegedly breached. Nelson maintains that the duty element must be supported by expert testimony. We disagree.

The Louisiana Supreme Court stated that even in medical malpractice cases, expert testimony is not always required. Pfiffner v. Correa , 94-0924, p. 9 (La. 10/17/94), 643 So.2d 1228, 1234. Likewise, we held that when "the negligence complained of was so obvious that a layperson can infer negligence without the guidance of expert testimony, such as fracturing a leg during an examination, amputating the wrong limb, or leaving a sponge in a patient's body," expert testimony was not required. Miller v. Tulane Univ. Hosp. , 09-1740, pp. 5-6 (La. App. 4 Cir. 5/12/10), 38 So.3d 1142, 1145. See also Milton J. Womack, Inc. v. House of Representatives of State , 509 So.2d 62, 66 (La. App. 1st Cir. 1987). As with physicians in an action for medical malpractice, the same is also true for engineers who commit common sense infractions. Nicholson & Loup, Inc. v. Carl E. Woodward, Inc. , 596 So.2d 374, 381 (La. App. 4th Cir. 1992).

In the present matter, Ruhrpumpen contends that Nelson was negligent in its communications or lack thereof between Ruhrpumpen and Conhagen. While Nelson employs engineers, we do not find that these allegations of simple negligence require expert testimony to establish a standard of care. A layperson, or as in this case, the trial court judge is well-equipped to gauge the evidence and determine whether Nelson fell below a common sense standard of care.

In regards to a breach of that common sense standard, Ruhrpumpen has demonstrated that genuine issues of material fact remain regarding Nelson's alleged negligence. Conhagen's representative, Eric Heidingsfelder, stated that design was Nelson's responsibility; it was also Nelson's responsibility to ensure that the plans met NASA requirements. Mr. Heidingsfelder testified that "Waldemar Nelson provided me a quote from Ruhrpumpen. So I'm assuming that they would have vetted that quote. Nelson fully knew that I would be using that quote to develop my proposal." Mr. Heidingsfelder also stated: "I expected Ruhrpumpen to sell me the products as designed and specified by Nelson, and I relied on Nelson to make sure that the pricing that Ruhrpumpen provided me was well [sic] as the equipment was to meet specs." Mr. Heidingsfelder testified that he was unable to "solicit pricing as [he] did not know what had to be built other than some generic specifications." He stated that Nelson requested the price. As to expectations, Mr. Heidingsfelder stated that "[i]t was the expectation of Nelson to provide us with and solicit vendors that could meet the performance specification and provide that to us, and when I say us I mean Healtheon and myself, as the contractors, to use in our proposal."

Debra Ingram, from Ruhrpumpen, testified that she knew Nelson would use the "price as a starting point as he [was] designing the job." Ms. Ingram stated that she informed Nelson that the price would increase, but that she did not know to what extent.

Bill Berg, from Nelson, testified that his "goal was to help write the proposal ... to figure out preliminary design stuff." However, he stated that Nelson's role "might have turned in to supporting price information." In regards to the initial budget quote from Ruhrpumpen, Mr. Berg stated that "[y]ou know, it was just a wild a** guess based on smaller pumps." Wayne Hingle, also from Nelson, testified that Ms. Ingram, from Ruhrpumpen, informed him that prices could change by the time the purchase was made. He further stated that she indicated she did not have firm quotes from buy out vendors, so Ruhrpumpen would prefer not to provide a cost breakdown. Mr. Hingle stated that Nelson would have told Conhagen if something in the quote looked strange. Also in regards to Nelson's role, he testified that "I think the role of trying to find that particular pump may have evolved into getting price quotes."

Rajan Chadha, of Healtheon, testified that he could not recall whether he knew that Ruhrpumpen informed Nelson that it did not have firm buy out prices and that the prices from the initial quote could change.

We found that Nelson's alleged standard of care to Conhagen could be determined without expert testimony. The evidence discussed above, which was attached to the Motion for Summary Judgment and Opposition, presented juxtaposed testimony regarding Nelson's role as to Ruhrpumpen and Conhagen. Further, the testimony suggests that Ruhrpumpen informed Nelson that a price increase would occur, but that Nelson did not inform Conhagen. Additionally, Mr. Berg's testimony regarding the "wild" nature of the initial quote could connote that he knew the price would change. This evidence requires credibility determinations, which are unsuited on a motion for summary judgment. See M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov't , 15-0860, p. 11 (La. App. 4 Cir. 12/2/15), 182 So.3d 312, 320. Also, whether this behavior rises to the level of negligence is one for the factfinder. As such, we find that genuine issues of material fact remained regarding Conhagen's negligence claims against Nelson.

We recognize that reversing an improperly granted motion for summary judgment after a full trial on the merits places a "potential imposition on the resources of the courts and litigants." Williams v. City of New Orleans , 93-2043 (La. App. 4 Cir. 5/17/94), 637 So.2d 1130, 1133. However, the partial granting of Nelson's Motion for Summary Judgment deprived this Court "of an adequate record upon which we could render a judgment on the merits." Id. A full trial on all issues is required to provide the parties ample opportunity to present evidence of Nelson's alleged negligence. "We have no recourse but to remand this matter" for further proceedings consistent with this opinion. Id.

REMAINING ASSIGNMENTS OF ERROR

As we reversed the trial court's partial grant of Nelson's Motion for Summary Judgment, which requires a remand, we pretermit discussion of the remaining assignments of error on appeal.

DECREE

For the above-mentioned reasons, we find that the trial court erred by partially granting Nelson's Motion for Summary Judgment and dismissing Conhagen's negligence claims against it. Conhagen and Ruhrpumpen were then prevented from presenting evidence of Nelson's negligence at the trial on the merits. A new trial on the issues will allow the admittance of such evidence. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOBRANO, J., CONCURS IN THE RESULT

      Ruhrpumpen sought expedited supervisory review of the judgment denying its Motion for Summary Judgment, but this Court denied writs. Conhagen v. Ruhrpumpen , 16-1226 (La. App. 4 Cir. 11/30/16). Review by the Louisiana Supreme Court was not sought.


author: Judge Roland L. Belsome

text:
    STATE of Louisiana v. Michael BAUGH
    NO. 2018-KA-0506
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 19, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Irena Zajickova, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, LA 70112, COUNSEL FOR APPELLANT/STATE OF LOUISIANA
    David M. Abdullah, Eric A. Wright, The Wright Firm, 201 St. Charles Avenue, Suite 3206, New Orleans, LA 70170, Joseph C. Peiffer, James A. Morock, Jr., Peiffer Wolf Carr & Kane, APLC, 201 St. Charles Avenue, Suite 4610, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )
   Judge Roland L. Belsome

The defendant, Michael Baugh, was charged by bill of information with one count of battery of a police officer with injury that requires medical attention, in violation of La. R.S. 14:34.2(B)(3), and one count of first offense possession of marijuana, in violation of La. R.S. 40:966(E)(1). The matter proceeded to jury trial for the battery charge in July of 2017. The bench trial for Defendant's marijuana charge ran concurrently with the jury trial. On July 12, 2017, the jury returned with the responsive verdict of simple assault.

Thereafter, the defendant filed a motion for post-verdict judgment of acquittal and motion for new trial. On December 1, 2017, the trial court granted the defendant's motion for post-verdict judgment of acquittal, finding that the evidence adduced at trial was not sufficient to support the verdict of simple assault and vacated the verdict. The State appealed.

Discussion

In this case, the defendant was charged with battery of a police officer with injury that requires medical attention, and the jury returned a verdict of simple assault. Returning a verdict of a lesser crime is well within the jury's authority if that lesser crime is deemed a responsive verdict. However, recent Supreme Court jurisprudence suggests that the jury's return of an unauthorized responsive verdict, even in the absence of an objection, constitutes an error patent, which is tantamount to an acquittal. State v. Price , 2017-0520 (La. 6/27/18), 250 So.3d 230 (finding that the verdicts of guilty of simple kidnapping, which were not responsive to charges of second-degree kidnapping, constituted implicit acquittal on charges for second-degree kidnapping, thus warranting reversal of convictions and post-verdict judgment of acquittal on charges); State v. Campbell, 95-1409, p. 3 (La. 3/22/96), 670 So.2d 1212, 1213 ("Relators acquiesced in the list of responsive verdicts given jurors by the trial judge but the return of the unresponsive verdicts of attempted jury tampering constitutes an error patent on the face of the record and requires reversal of relators' convictions."); State v. Mayeux, 498 So.2d 701, 702 (La. 1986) ("non-responsive verdict [is] error patent on the face of the record and therefore reviewable on appeal despite the absence of an objection during trial."); State v. Jones , 2013-1118, p. 6 (La. App. 4 Cir. 1/30/14), 156 So.3d 126, 129 ("a non-responsive verdict is a patent error which does not require a contemporaneous objection," citing La. C.Cr.P. art. 920(2) ).

In accordance with the jurisprudence, this Court must determine if simple assault was a responsive verdict to battery of a police officer with injury that requires medical attention. La. C.Cr.P. art. 814 provides the particular responsive verdicts for charged offenses. The offense charged in this case does not appear in the statute. Thus, this Court applies the precepts of La. C.Cr.P. art. 815.

La. C.Cr.P. art. 815 requires that simple assault be a lesser and included offense of battery of a police officer with injury before a verdict of guilty of the former can be responsive to a charge of the latter. Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. Battery "is a crime of general intent, meaning that the State need only prove the offender must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." However, an attempted battery, one of the definitions of assault, requires specific intent. That being the case, the lesser offense of assault possesses an element (specific intent) that the greater offense (battery of a police officer) does not. The other way to commit an assault also contains an element (the intentional placing of another in reasonable apprehension of receiving a battery) that the underlying crime of battery does not. Considering those factors, assault would not constitute a valid responsive verdict.

Further, in State v. Johnson , the Louisiana Supreme Court considered the possible responsive verdicts to a similar crime, battery of a police officer while the offender is the custody of a correctional facility , and found that valid verdicts in prosecution were:

(1) Guilty as charged (battery on a police officer when the offender is in the custody of a correctional facility) (felony grade);
(2) Guilty of battery on a police officer (misdemeanor grade);
(3) Guilty of simple battery (misdemeanor)
(4) Not guilty.

The Johnson Court did not include simple assault as a responsive verdict.

This Court finds that the verdict returned by the jury was nonresponsive to the charged offense. As such, the verdict amounted to an acquittal of the crime charged. Although this Court's reasons differ from that of the trial court, the trial court's post-verdict judgment of acquittal is affirmed.

AFFIRMED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

I respectively dissent from the majority opinion for two reasons. First, I find that the district court erred when it granted the motion for post-verdict judgment of acquittal filed by the defendant, Michael Baugh ("Defendant"). I would reverse the district court and reinstate the jury's verdict of simple assault. Second, I find that simple assault is a lesser and included offense of a felony battery on a police officer and that the majority erred by concluding otherwise.

PROCEDURAL HISTORY AND SUMMARY OF FACTS

On September 18, 2015, at approximately 11:30 p.m., Louisiana State Troopers Eric Thaxton and Charles Robertson were responding to a dispatch from the New Orleans Police Department ("NOPD"). The dispatch alerted them to be on the lookout on Canal Street toward the river for a "black pickup truck, partial license plate number B690 playing loud music and waving a 95G [handgun] out the vehicle window" with one of the occupants wearing a black t-shirt.

The troopers approached Defendant's dark grey pickup truck that was parked on South Rampart Street. The truck had darkly tinted windows and no visible license plate. A strong smell of marijuana was coming from the truck. Defendant was the sole occupant and was wearing a black t-shirt; the license plate number was C099909. After being ordered out of his truck, an altercation occurred, leaving Robertson on the ground with a fractured tibial plateau, the upper end of the shinbone, and Defendant being tased. Both required medical attention. A search of Defendant's truck found a small bottle containing about 6 grams of marijuana.

Defendant was charged by bill of information with one count of a felony battery of a police officer with injury that required medical attention and one count of first offense possession of marijuana, violations of La. R.S. 14:34.2 (B)(3) and La. R.S. 40:966 (E) respectively. He was also issued traffic citations for a fake inspection sticker, illegal window tint, and improper display of a license plate.

The case went to trial. At the end of testimony, the district court charged the jury using Cheney C. Joseph and P. Raymond Lamonica, 17 La. Civ. L. Treatise, Criminal Jury Instructions , § 10:28 (3d ed.) ("Treatise"). The district court read the responsive verdicts to the felony battery of a police officer as set forth in Treatise § 10:28 : (1) guilty as charged; (2) guilty of battery of a police officer; (3) guilty of simple battery; (4) guilty of simple assault; and (5) not guilty. Neither the State nor the defense lodged an objection to the jury charges or filed an emergency writ.

During deliberations, the jury asked the district court for a definition of simple assault. It responded:

Simple Assault. Assault is an attempt to commit a battery or the intentional placing of another in reasonable apprehension of receiving a battery.

The jury returned a guilty verdict of simple assault, a violation of La. R.S. 14:38.

Defendant filed motions for new trial and post-verdict judgment of acquittal. The district court granted the motion stating:

At this time the Court is going to grant the defendant's post-verdict judgment of acquittal under Louisiana Code of Criminal Procedure Article 821, on count I, Simple Assault, as the evidence educed at trial, in this Court's opinion, was not sufficient to support the offense charged or to support the verdict the jury returned.
Under the Louisiana Code of Criminal Procedure Article 821, this Court finds that the evidence viewed in light most favorable to the State does not reasonably permit a finding of guilty. The jury in this case rejected the State's "as charged" count I, Battery of a Police Officer with injury, and the jury came back with the lesser responsive verdict of Simple Assault.
This Court, again, finds that after exhaustively reviewing and analyzing both the testimony that was educed at trial, and viewing the evidence that was submitted in terms of photographs and live mobile cams, the body cams that were educed at trial, and that this Court finds that the jury's lesser responsive verdict is not supported by this evidence and therefore this Court vacates the jury's verdict as to count I and grants the defendant's post-verdict motion for a judgment of acquittal.

TRIAL TESTIMONY

The trial took place over two days and the following four witnesses testified: Troopers Thaxton and Robertson; Robertson's treating physician; and Defendant.

The troopers confirmed that they received the dispatch about a vehicle heading towards the river. When they got to Elk and Rampart Street, they saw a dark-colored pickup truck parked next to the curb. The troopers made a U-turn and parked behind the pickup.

At that point, the troopers did not know if this was the vehicle for which they were looking. They noticed, however, that the vehicle did not have a visible license plate and all the windows were darkly tinted. Thaxton walked to the driver's side window and asked Defendant to exit his vehicle. As he did, Thaxton testified that he could detect a very strong odor of marijuana coming out of the vehicle.

Thaxton explained to Defendant why he had asked him to exit the truck. Thaxton then asked for identification ("ID"). Defendant stated that he had just closed his barbershop and thought his ID was in the shop. Thaxton asked him to look through his wallet first. As Defendant flipped through the wallet's content, Thaxton stated that he saw the ID. He testified that Defendant "glared" at him, returned his wallet to his pocket, and attempted to run.

Robertson initially approached the vehicle with his weapon. After determining that the weapon was unnecessary, he returned it to the police vehicle and came back, positioning himself behind Defendant. Robertson was concerned about Defendant's demeanor and refusal to identify himself. As Defendant turned to run, Robertson grabbed his right wrist. Defendant immediately started "violently jerking backwards." Robertson stated that Defendant threw an "uncoordinated, left jab, or punch." Robertson testified that he avoided the punch but that Defendant's fingernail cut him along the jawline. Thaxton confirmed that Defendant threw some type of "action" towards Robertson. After Defendant failed to obey verbal commands to stop running, Thaxton used his Taser. Thaxton heard Robertson yell that Defendant had kicked him.

Defendant testified on his own behalf. He was sitting in his truck parked at his place of business. Defendant saw a police car going in the opposite direction at a fast speed. One of the troopers shined a flashlight into his driver's window. He saw another person on the passenger's side holding a weapon. He was scared. Defendant heard a voice telling him to get out of the car. Defendant shut off his vehicle with his keys, money, and cell phone in his hand when he exited. Thaxton asked him for ID. Defendant testified that Thaxton was acting in a hostile manner and again asked for his ID. Defendant could not immediately locate it. He did not see Robertson and was not thinking about the other officer during his exchange with Thaxton. He looked again and found his ID in his wallet. Before he could remove it, Defendant felt someone behind him grab his right wrist. He did not know who it was. He jerked away, waved his hands up, and backed away. At that moment, both troopers tried to grab his clothes to pull him onto the ground.

Defendant denied hitting or kicking Robertson. He saw Robertson slip and hit his knee on the curb. At that moment, he saw Thaxton reach into his holster. Defendant did not know if he was reaching for a gun or Taser so he ran. As Defendant ran, he was tased in his buttocks and fell. He got up and kept running. He took a few more steps when he was tased a second time. Thaxton then handcuffed him. Defendant did not know why he was under arrest. After he was placed in the police car, he asked what he was being charged with and was told for kicking a Louisiana State Trooper.

Defendant and Robertson were taken to the hospital to treat their respective injuries. Defendant sustained injuries to his face and head and had abrasions down his back and to his face and hands. Robertson suffered a fractured tibial plateau.

Robertson's treating orthopedic surgeon, Jason Rudd, M.D., testified that he examined Robertson's fractured tibial plateau. Dr. Rudd stated that the injury was consistent with a kick. He denied that the injury could have been caused by Robertson falling onto the ground and hitting his knee on a curb.

DISCUSSION

Post-Verdict Judgment of Acquittal

The State charged Defendant with battery of a police officer requiring medical attention, a felony. The jury convicted Defendant of the lesser and included responsive verdict of simple assault, a misdemeanor. Thus, the State presents one issue for consideration: whether the district court

erred in granting defendant's motion for post-verdict judgment of acquittal. When viewed in the light most favorable to the State, the testimony at trial reasonably permits a jury to find that the defendant attempted to commit a battery on Trooper Robertson.

After reviewing the record on appeal and applicable law, I find ample evidence exists to support the jury's verdict of simple assault. Thus, the district court erred when it granted Defendant's motion.

A post-verdict judgment of acquittal "shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty." La. C.Cr.P. art. 821(B). This standard is similar to the standard for appellate review of the sufficiency of evidence to support a defendant's conviction: the court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Williams , 04-1377, pp. 7-8 (La.App. 4 Cir. 12/1/04), 891 So.2d 26, 30. Thus, a motion for post-verdict judgment of acquittal raises the question of sufficiency of the evidence. State v. Thibodeaux, 98-1673, p. 12 (La. 9/8/99), 750 So.2d 916, 926 ; State v. Simmons , 07-0741, p. 15 (La.App. 4 Cir. 4/16/08), 983 So.2d 200, 209.

This court, in State v. Haynes, 13-0323, pp. 7-8 (La.App. 4 Cir. 5/7/14), 144 So.3d 1083, 1087-88, set out the well-settled standard for reviewing convictions for sufficiency of the evidence:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the Defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Green , 588 So.2d 757 (La.App. 4 Cir. 1991)..... If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. The fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. [State v.] Mussall , 523 So.2d [1305] at 1310 [ (La.1988) ]. "[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith , 600 So.2d 1319, 1324 (La. 1992).
* * *
"A factfinder's credibility decision should not be disturbed unless it is clearly contrary to the evidence." State v. McMillian, 2010-0812, p. 6 (La.App. 4 Cir. 5/18/11), 65 So.3d 801, 805.

When conflicting testimony exists about factual matters, "the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency." State v. Materre, 09-1666, p. 11 (La.App. 4 Cir. 12/8/10), 53 So.3d 615, 622 (citing State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622 ). Neither appellate nor district courts may assess witnesses' credibility or reweigh evidence when reviewing a motion for post-verdict judgment of acquittal. State v. Sparkman, 08-0472, p. 6 (La.App. 4 Cir. 1/28/09), 5 So.3d 891, 895. See also State v. Simmons, 07-0741, p. 17 (La.App. 4 Cir. 4/16/08), 983 So.2d 200, 210 ("The trial court erred as matter of law in evaluating the credibility of [the witnesses] on this issue, [of whether a statement was made or not] and in granting defendant's motion for post-verdict judgment of acquittal, in part, on this ground.").

"Simple assault is an assault committed without a dangerous weapon." La. R.S. 14:38. An assault is defined as "an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery." La. R.S. 14:36. The first theory of culpability for assault, "an attempt to commit a battery," requires specific intent, whereas the alternative theory of assault, "intentional placing of another in reasonable apprehension of receiving a battery," requires general intent. La. R.S. 14:10 (1) defines "specific criminal intent" as "the state of mind which exists when circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:33 defines a battery as "the intentional use of force or violence upon the person of another."

An attempt is defined as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
* * *
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

La. R.S. 14:27 (A) & (C).

In the case sub judice , the district court granted Defendant's motion for post-verdict judgment of acquittal, finding that the evidence at trial "was not sufficient to support the offense charged or to support the verdict the jury returned." Thus, the district court opined that the evidence failed to prove that Defendant had specific intent to commit a battery on Robertson, which is necessary to render verdicts of a battery and the attempted-battery definition of assault. The district court judge noted that "the jury in this case rejected the State's 'as charged' count I." I find that the district court erred because the Defendant's motion post-verdict judgment of acquittal focused on the credibility of the troopers and Defendant, an inappropriate consideration for the district court. See Simmons, 07-0741, p. 16, 983 So.2d at 209.

I find that, in viewing the evidence in a light most favorable to the State, a rational juror could have found that Defendant attempted and intended to punch and kick Robertson or that Defendant actually completed the act by hitting or kicking him. This was a credibility determination, which was properly made by the jury and should not be disturbed by the district court or the appellate courts. Jurors have the absolute prerogative to return a responsive verdict regardless of the amount of evidence supporting the greater offense.

The State set forth evidence that Defendant committed a battery upon Robertson whereas Defendant claimed that he did not actually hit or kick Robertson. The State claims that the testimony adduced at trial shows that Defendant swung at and kicked Robertson.

Defendant claims that the officers' description of the alleged punch at trial does not establish his intent to strike. Defendant notes that he only "turned around and backed up" and "yanked away" from the officer. Both officers testified that Defendant threw "some type of punch" or "uncoordinated left jab" in Robertson's direction. The fact that Defendant's action was clumsy or imprecise does not negate his intent to use force against the officer. Robertson said he avoided Defendant's fist, but that Defendant's nail cut him along the jawline. Thaxton also testified that he observed Robertson fall to the ground after Robertson "dodged" or "attempted to dodge" Defendant's movement. Although Defendant denied punching Robertson and indicated that he had just spun around and backed away from him, the jury was entitled to accept the officers' testimony over Defendant's version of events. Moreover, intent need not be proven as a fact and may be inferred from the circumstances and the actions of the accused. State v. Hickman , 15-0817, p. 11 (La.App. 4 Cir. 5/16/16), 194 So.3d 1160, 1167.

The jury's verdict is also supported by testimony that Defendant kicked, or attempted to kick, the trooper. This provides additional evidence that Defendant actively desired to cause Robertson bodily harm. Robertson testified that he felt a sharp pain in his knee and observed Defendant's foot pull back. Dr. Rudd, who treated Robertson for his knee injury, testified that Robertson's facture was consistent with a lateral kick to the knee. The record also shows Robertson used crutches and could not put any weight on his left leg for several months to allow his injury to heal. While Thaxton did not witness the kick and Defendant denied kicking the officer, Thaxton saw Robertson fall and heard him shout that Defendant "kicked" him. Therefore, sufficient evidence existed for the jury to find Defendant had the intent to commit a battery against Robertson and convict Defendant of simple assault. Clearly, the jury could reasonably infer that Defendant intended to use force or violence against Robertson given the circumstances.

I find that reasonable minds could have concluded that Defendant committed a felony battery on a police officer or an assault against Robertson. The jury could have chosen to render the compromised verdict of assault. Viewing the evidence in the light most favorable to the prosecution, the jury may have credited the testimony of the troopers by finding that Defendant's actions against Robertson constituted a simple assault. On the other hand, the jury may have believed that Defendant did not complete a battery but had the requisite intent to hit Robertson. Accordingly, this is not a matter of the sufficiency of the evidence but one of the weight given to that evidence by the jury. See Materre, supra. Credibility determinations and factual findings made by a jury are entitled to great deference by the district and appellate courts when deciding a motion for post-verdict for acquittal. As such, the district court erred when it granted the motion for post-verdict judgment of acquittal. Based on the foregoing, I would reverse the post-verdict of acquittal and reinstate the jury's verdict of simple assault.

Responsive Verdicts

I find that the majority erred by concluding that simple assault is not a responsive verdict to Defendant's charged crime of felony battery of a police officer. The issue of whether a simple assault is a proper Article 815 responsive verdict when the charged crime is a felony battery is res nova in this state.

The majority's holding that the first theory of assault, an attempt to commit a battery, is not a responsive verdict to the charged offense of a felony battery on a police officer, is contrary to La. R.S. 14:27, which makes attempts to commit a crime a lesser and included grade of the intended crime. The majority's holding improperly limits the application of La. R.S. 14:27 contrary to long recognized practices in our criminal courts in Louisiana. This is especially significant in cases involving protected classes where the Legislature created separate crimes of felony battery, such as in the case sub judice , battery of a police officer with injuries requiring medical attention ( La. R.S. 14:34.2, for which assault is listed as an Article 815 responsive verdict in the Treatise at § 10:28 ), as well as the following: disarming of a peace officer ( La. R.S. 14:34.6, for which assault is listed as an Article 814 responsive verdict in La. C.Cr.P. art. 814 (14.1) ); cruelty to the infirm ( La. R.S. 14:93.3, for which assault is listed as an Article 814 responsive verdict in La. C.Cr.P. art. 814 (5) ); battery of a correctional facility officer ( La. R.S. 14:34.5, for which assault is listed as an Article 815 responsive verdict in the Treatise at § 10:30); and battery of teachers ( La. R.S. 14:34.3, for which assault is listed as an Article 815 responsive verdict in the Treatise at § 10:31).

It is well-settled that a district court lacks the authority to vary or add to the prescribed verdicts mandated by La. C.Cr.P. art. 814. State v. Jones , 13-1118 (La.App. 4 Cir. 1/30/14), 156 So.3d 126, 128. However, when the legislature fails to proscribe mandated verdicts, the courts must rely on La. C.Cr.P. art. 815 to determine when an offender can be convicted of an offense that was neither charged nor prosecuted by the state. Article 815 provides:

In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.

Article 815, together with La. R.S. 14:5 and La. R.S. 14:27 (C), provide offenders with the required notice that they can be (1) "convicted of any one of the lesser and included offenses" of the greater offense charged and prosecuted by the State if "all the elements of other lesser offenses" are included in the charged crime, La. R.S. 14:5 ; and (2) "convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt."

La. R.S. 14:27 (C). These statutes reflect the oft-quoted "necessarily included" test in State v. Poe , 214 La. 606, 38 So.2d 359 (La. 1948), and are applicable to the attempt responsive verdicts discussed in State v. Brown , 13-0268 (La.App. 4 Cir. 7/24/13), 163 So.3d 1, both of which are discussed below.

A trial judge is required to charge a jury with respect to all Article 815 responsive verdicts and all legislatively proscribed Article 814 responsive verdicts. La. C.Cr.P. art. 803. To do otherwise would deprive a defendant of a right to due process and would be contrary to the principle of jury lenity.

In Brown , the defendant, Ms. Brown, was charged with three counts of cruelty to a juvenile in violation of La. R.S. 14:93. She pled not guilty at arraignment and waived her right to trial by jury. The district court found her guilty of attempted cruelty to a juvenile on all three counts. The issues in Brown were whether a verdict of attempted cruelty to a juvenile was responsive to the charged offense of cruelty to a juvenile and whether the oft-quoted "necessarily included" test in Poe applied to the attempt verdicts. Ms. Brown relied on the Poe test and focused on this "theoretical nature of a responsive verdict." Ms. Brown claimed that her conviction should be reversed solely on the basis that, in theory, attempted cruelty to a juvenile can never be a responsive verdict to the completed offense.

In Brown , as in the case sub judice , the responsive verdicts for La. R.S. 14:93 are governed by La. C.Cr.P. art 815. Ms. Brown's argument that the verdict rendered was not responsive relied on the "necessarily included" test stated in Poe, 214 La. at 620, 38 So.2d at 363 : "the test is whether the definition of the greater offense necessarily includes all the elements of the lesser. Stated in another way for practical application, this merely means that, if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." (emphasis in original).

However, in Brown , we distinguished Poe :

Recently, in State v. Barnett, 12-816 (La.App. 5 Cir. 5/16/13), 118 So.3d 1156, 2013 WL 2121928, the defendant raised a nearly identical theoretical argument on appeal after the responsive verdict of attempted aggravated assault with a dangerous weapon was rendered at his trial. The defendant argued that the verdict was not legally responsive. He claimed that because an assault is merely an attempt to commit a battery, he could not be convicted of attempted aggravated assault with a dangerous weapon because the crime amounts to attempting to attempt to commit a crime. His argument was predicated on the incongruity of an attempt to commit the offense. The State countered that attempted aggravated assault with a firearm is a responsive verdict in cases in which the prosecution "does not rely on the attempted-battery definition of assault, but rather relies on the alternative theory or definition of assault, i.e., the intentional placing of another in reasonable apprehension of receiving a battery." Barnett, 118 So.3d at 1162.
Agreeing with the State, the Fifth Circuit in Barnett reasoned that a plain reading of the statute reveals that an assault is an attempt to commit a battery or the intentional placing of another in reasonable apprehension of receiving a battery. The Fifth Circuit found that it was evident from the record that the prosecution was founded on the defendant having intentionally placed another in reasonable apprehension of receiving a battery. Accordingly, the Fifth Circuit found that the responsive verdict of attempted aggravated assault with a firearm was appropriate. In so finding, the Fifth Circuit reasoned that "the record supports a finding that the state's theory of culpability rests on the alternative definition of assault and thus ... the responsive verdict of attempted aggravated assault with a firearm is appropriate in this case." Barnett, 118 So.3d at 1164. Likewise, in this case, the prosecution alleged intentional mistreatment or neglect; and the responsive verdict of attempted cruelty to a juvenile was appropriate.
Summarizing, the jurisprudence has recognized that the definition of a lesser included offense stated in the Poe case, which Ms. Brown cites, does not account for those exceedingly few offenses-such as cruelty to juveniles and assault-that by statutory definition may be committed in more than one manner. Because ... her claim lacks substantive merit, we find this assignment of error lacks merit.

13-0268, pp.12-13, 163 So.3d at 7-8 (Emphasis added; footnote omitted.)

Brown is especially applicable to the case sub judice . As with cruelty to juveniles, assault may be committed in more than one way and both cases involve attempt verdicts. The prosecution was founded on Defendant having committed a battery upon Robertson. I find that simple assault is a responsive verdict to battery of a police officer with injury requiring medical attention because one of the definitions of assault is an attempt to commit a battery. I also find that Poe 's "necessarily included" test used to determine whether a verdict is responsive is not universally applicable to every set of facts. See Brown, supra .

The district court properly charged the jury using the Treatise at § 10:28. Courts and attorneys in this state have long followed the Treatise to charge juries. If the district court was correct in utilizing the Treatise to charge the jury, it is imperative that the Louisiana Supreme Court recognize that this criminal jury instruction is an accurate statement of the law, as I have in my dissent.

For these reasons, I respectfully dissent. I would find that simple assault is a responsive verdict to battery of a police officer with injury requiring medical attention and, thus, reverse the district court and reinstate the jury's verdict of simple assault.

      This appeal only pertains to the violation of La. R.S. 14:34.2(B)(3).

      Although not pertinent to the issue framed in this opinion, a full recitation of the facts of this case can be found at State v. Baugh, 2016-1201 (La. App. 4 Cir 1/18/17), 229 So.3d 520.

      La. R.S. 14:38.

      Notably, all of the battery offenses that are listed in the article do not include assault as responsive. La. C.Cr.P. art. 814(A)(18), (20), (21), (24).

      La. C.Cr.P. art. 815 provides:
      In all cases not provided for in Article 814, the following verdicts are responsive:
      (1) Guilty;
      (2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
      (3) Not Guilty.

      State v. Porter, 93-1106, pp. 4-9 (La.7/5/94), 639 So.2d 1137, 1140-1142 ; State v. Dufore, 424 So.2d 256, 258 (La.1982) ; State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La.1982).

      State v. Wix , 2002-1493, p. 9 (La. App. 4 Cir. 1/15/03), 838 So.2d 41, 47.

      See R.S. 14:27(A).

      La. R.S. 14:34.2(B)(2).

      2001-0006, p.5 (La. 5/31/02), 823 So.2d 917, 921.

      La. R.S. 14:34.2 states in pertinent part:
      A. (1) Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is police officer acting in the performance of his duty.
      * * *
      B. (3) If the battery produces an injury that requires medical attention, the offender shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not less than one year nor more than five years, or both. At least thirty days of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

      La. R.S. 40:966 (E) relates to the possession of marijuana, first offense. This charge was not tried at the same time as the matter at issue in this appeal.

      Treatise at § 10:28 provides:
      Battery of a Police Officer is the intentional use of force or violence upon the person of another without the consent of the victim, which force or violence produced an injury requiring medical attention, when the offender had reasonable grounds to believe the victim was a police officer acting in the performance of [his] [her] duty.
      Thus, in order to convict the defendant of battery of a police officer, you must find:
      (1) that the defendant intentionally used force or violence upon the person of [victim] [without [his] [her] consent] ; and
      (2) that the defendant had reasonable grounds to believe [victim] was a police officer and was acting in performance of [his ] [her ] duty; and
      (3) that the use of force or violence produced an injury which required medical attention [; and]
      [ (4) that [victim] was a police officer acting in the performance of [his ] [her ] duty].

      I also find that there was ample evidence to support a jury's verdict of the felony battery as charged. A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State ex rel. Elaire v. Blackburn , 424 So.2d 246, 251 (La. 1982), cert. denied , 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983). In Louisiana, "jury nullification" is a recognized practice, which allows a jury to disregard uncontradicted evidence by the trial court. State v. Porter, 93-1106, p. 4, fn. 5 (La. 7/5/94), 639 So.2d 1137, 1140, fn. 5, citing 2 Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 21.1 (1984). A jury has the absolute prerogative to return a responsive verdict regardless of the amount of evidence supporting the greater offense. "This authority is often called the 'jury's power of nullification' or the 'essential principle of jury lenity.' " State v. Divers , 38,524, p. 22 (La.App. 2 Cir. 11/23/04), 889 So.2d 335, 351-52, writ denied, 04-3186 (La. 4/8/05), 899 So.2d 2. Jury nullification is often cited when comparing it to the lawful prerogative of a jury to return a verdict of guilty of a responsive verdict. In State v. Lewis, 09-1404, p. 8 (La. 10/22/10), 48 So.3d 1073, 1078, the Court quoted Porter, 93-1106, p. 4, 639 So.2d at 1140 : "Treating the jury's prerogative to return a responsive verdict similar to the jury's power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense."

      A clear distinction exists between the two different theories of assault. The first, an attempted battery, requires specific intent. This is true for any "attempt" offense. See La. R.S. 14:27 (A). The second, reasonable apprehension of receiving of receiving a battery, requires general intent. See State in the Interest of K.M., 14-0306, p. 9 (La.App. 4 Cir. 7/23/14), 146 So.3d 865, 872 ; State v. De Gruy, 16-0891, pp. 12-13 (La.App. 4 Cir. 4/5/17), 215 So.3d 723, 730, writ denied , 17-0752 (La. 1/9/18), 231 So.3d 652. I do not address the alternative theory of assault due to my finding as to the attempt offense; however, I also find that that viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found Defendant guilty beyond a reasonable doubt of simple assault because the evidence shows that Defendant's actions placed Robertson as well as Thaxton in reasonable apprehension of receiving a battery.

      See supra note 3.

      The State notes that because Thaxton did not see what actually caused Robertson's fall, it "was plausible that the jury could not find beyond a reasonable doubt that the defendant kicked Robertson but believed testimony of both troopers that the defendant swung at Robertson."

      The jury considers all evidence regarding the circumstances of the alleged crime when reaching its verdict, including the fact that the case involved law enforcement and a lawful arrest. Louisiana law requires that a "person must submit peacefully to a lawful arrest." La. C.Cr.P. art. 220. As noted by Justice Weimer in his dissent in State v. Helou , 02-2302, p. 1 (La. 10/23/03), 857 So.2d 1024, 1030 (Weimer, J., dissenting):
      Jurors are chosen from different walks of life for the purpose of bringing to their deliberations a variety of different life experiences. Jurors represent the community in the criminal justice system. Although obligated to follow the law, jurors can draw on their common life experiences and apply their collective common sense.

      In State v. Brantley, 43,067 (La.App. 2 Cir. 2/13/08), 975 So.2d 849, the defendant was charged with possession of a firearm by a convicted felon. The jury returned a compromised verdict of attempted possession of a firearm by a convicted felon. Therein, the court stated:
      The charged offense is a general intent crime. Attempt, however, is a responsive verdict to the charged offense. La. C. Cr. P. art. 815 ; To sustain a conviction for attempted possession of a firearm by a convicted felon, the state must prove that the defendant had the specific intent to possess the weapon and that he committed an overt act toward the completion of that offense. La. R.S. 14:27 A. Nonetheless, the jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983).
      Id., 43,067, p. 5, 975 So.2d at 852. (Emphasis in original; citations omitted)

      The majority's reliance on State v. Johnson , 01-0006 (La. 5/31/02), 823 So.2d 917 and State v. Mayeux, 498 So.2d 701 (La.1986) is misplaced. Neither Johnson nor Mayeux specifically addressed this issue. In State v. Trackling , 04-3222, p. 6 (La. 1/19/06), 921 So.2d 79, 82-83, the Supreme Court, noting the limited holdings in Johnson and Mayeux , stated that "the conclusions in Mayeux and Johnson [were] that attempted aggravated battery and attempted simple battery are not separate, cognizable offenses. As regards the crimes of aggravated battery and simple battery, separate statutes criminalize the attempt. However, there is no statutory provision proscribing sexual assault. As a result, it appears that there is no logical or legal impediment to charging a defendant with attempted sexual battery." 04-3222, p. 10, 921 So.2d at 84-85 (footnote omitted). The Trackling court noted that "unlike simple battery, which has a companion offense for cases in which an attempt to commit the crime has occurred (LSA-R.S. 14:38, simple assault), sexual battery has no companion for cases in which the defendant's effort to touch the victim's anus or genitals is ultimately frustrated. The fact that aggravated assault (LSA-R.S.14:37 ) and simple assault (LSA-R.S.14:38 ) are both designated as offenses in Louisiana lends support to the conclusions in Johnson and Mayeux ." Id. Moreover, the Johnson court was concerned with district court eliminating "any possibility of compromise by withholding from jurors responsive verdicts for lesser included offenses" even when there is "overwhelming evidence of the charged crime." Johnson , 01-0006, pp. 1-2, 823 So.2d at 919. "By doing so, the court commits the jury "to an all-or-nothing choice between guilty and not guilty." Id., 01-0006, p. 2, 823 So.2d at 919. The issue in the case sub judice was not fully addressed in Johnson nor the recent case of State v. Price, 17-0529 (La. 6/27/18), 250 So.3d 230.

      La. R.S. 14:5, states:
      An offender who commits an offense which includes all the elements of other lesser offenses, may be prosecuted for and convicted of either the greater offense or one of the lesser and included offenses. In such case, where the offender is prosecuted for the greater offense, he may be convicted of any one of the lesser and included offenses.

      La. R.S. 14:27 (C) reads: "An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt."

      La. C.Cr.P. art. 803 states in pertinent part:
      When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.

      The Supreme Court has cautioned district courts that Louisiana's system of responsive verdicts has constituted a distinctive aspect of this state's law "[s]ince before the turn of the century," State v. Porter, 93-1106, p. 4 (La. 7/5/94), 639 So.2d 1137, 1140, further observing that, "[t]reating the jury's prerogative to return a responsive verdict similar to the jury's power of nullification, this court has consistently held that the jury must be given the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged crime." Id., 93-1106, p. 4, 639 So.2d at 1140. "This authority is often called the 'jury's power of nullification' or the 'essential principle of jury lenity.' " State v. Divers , 38,524, p. 22 (La.App. 2 Cir. 11/23/04), 889 So.2d 335, 351-52, writ denied, 04-3186 (La. 4/8/05), 899 So.2d 2. See also supra note 3.