State Of Louisiana v. James Bourgeois ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 KA 0426
STATE OF LOUISIANA
V1 VERSUS
JAMES BOURGEOIS
Judgment Rendered: lUff T 12020'
Appealed from the
Seventeenth Judicial District Court
Parish of Lafourche, State of Louisiana
No. 569593
The Honorable Steven Miller, Judge Presiding
Kristine M. Russell Attorneys for the State of Louisiana
District Attorney
Joseph S. Soignet
Jason Chatagnier
Assistant District Attorneys
Thibodaux, Louisiana
Thomas M. Calogero Attorneys for Defendant/Appellant,
Metairie, Louisiana James Bourgeois
Eric J. Santana
Metairie, Louisiana
Mark D. Plaisance
Marcus J. Plaisance
Prairieville, Louisiana
BEFORE: GUIDRY, WELCH, AND BURRIS,' JJ,
I
The Honorable William J. Burris is serving as judge pro ternpore by special appointment
of the Louisiana Supreme Court,
ti
CA
BURRIS, J.
The defendant, James Bourgeois, was convicted of filing or maintaining a
false public record for falsely representing his domicile on a document filed in
support of his candidacy for the Lafourche Parish Council. See La. R.S. 14: 133.
The trial court imposed a suspended sentence of three years imprisonment at hard
labor, with two years of probation. We reverse the conviction and vacate the
sentence.
FACTS
The Lafourche Parish Horne Rule Charter requires that a candidate for the
council be a qualified elector who has been domiciled in the district in which he
seeks election for at least one year prior to the end of the qualifying period. On
December 2, 2015, the defendant filed a notice of candidacy with the Lafourche
Parish Clerk of Court' s office, in which attested he was a duly qualified elector of
Lafourche Parish, with a domiciliary address in Raceland, Louisiana. The
procedure of the clerk' s office was to record the form, transmit it to the Secretary
of State' s office, and file it as a permanent record.
The defendant was elected to the council in April 2016. In 2017, the District
Attorney received a complaint, which it referred to the Lafourche Parish Sheriffs
Office, that the defendant was not living in his district and had not been domiciled
in Lafourche Parish for the year before he qualified for candidacy. It is undisputed
the defendant married in 20147 and the couple maintained the home the defendant
owned in Raceland and the home his wife owned in Metairie, Louisiana. The
defendant was prosecuted for falsely representing on his qualifying form that his
domicile was Lafourche Parish, with the state arguing the defendant' s domicile
changed to Jefferson Parish after his marriage.
2
SUFFICIENCY OF THE EVIDENCE
A conviction based on insufficient evidence cannot stand, as it violates due
process. See U.S. Const. amend. XIV; La. Const. art. 1, § 2. In reviewing claims
challenging the sufficiency of the evidence, an appellate court must determine
whether any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt based on the entirety of the evidence,
both admissible and inadmissible, viewed in the light most favorable to the
prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
L.Ed.2d 560 ( 1979); State v. Oliphant, 13- 2973 ( La. 2/ 21/ 14), 133 So. 3d 1255,
1258 ( per curiam); see also La. Code Crim. Pro. art. 8218; State v. Mussall, 523
Additionally, the Louisiana Supreme Court recently explained:
T] he Jackson standard of review does not allow a jury to speculate on
the probabilities of guilt where rational jurors would necessarily
entertain a reasonable doubt. State v. Mussall, 523 So. 2d 1305, 1311
La. 1988) ( citing 2 C. Wright, Federal Practice & Procedure,
Criminal 2d, § 467).The requirement that jurors reasonably reject the
hypothesis of innocence advanced by the defendant in a case of
circumstantial evidence presupposes that a rational rejection of that
hypothesis is based on the evidence presented, not mere speculation.
See State v. Schwander, 345
So. 2d 1173, 1175 ( La. 1977).
Nonetheless, the Jackson standard " leaves juries broad discretion in
deciding what inferences to draw from the evidence presented at trial,
requiring only that jurors ' draw reasonable inferences from basic facts
to ultimate facts."'
Coleman v. Johnson, 566 U.S. 650, 655, 132 S. Ct.
2060, 2064, 182 L.Ed.2d 978 ( 2012).
State v. Mayeux, 19- 00369 ( La. 1/ 29/ 20), _ So. 3d _ ( 2020) WL508655,
1) ( per curiam).
The due process standard does not require the reviewing court to determine
whether it believes the witnesses or whether it believes the evidence establishes
guilt beyond a reasonable doubt. State v. Mire, 14- 2295 ( La. 1/ 27/ 16), 269 So. 3d
698, 703 ( per curiam).
Rather, appellate review is limited to determining whether
the facts established by the direct evidence and inferred from the circumstances
3
established by that evidence are sufficient for any rational trier of fact to conclude
beyond a reasonable doubt that the defendant was guilty of every essential element
of the crime. State v. Gardner, 16- 0192 ( La. App. I Cir. 9/ 19/ 16), 204 So. 3d 265,
267. The weight given evidence is not subject to appellate review; therefore, an
appellate court will not reweigh evidence to overturn a factfinder' s determination
of guilt. State v. Livous, 18- 0016 ( La. App. I Cir. 9/ 24/ 18), 259 So. 3d 1036,
1040, writ denied, 18- 1788 ( La. 4/ 15/ 19), 267 So. 3d 1130.
Louisiana Revised Statutes 14: 133A defines the crime of "filing false public
records," in pertinent part, as the filing or depositing for record in any public office
or with any public official, with knowledge of its falsity, any document containing
a false statement or false representation of a material fact. Thus, conviction
requires proof beyond a reasonable doubt that ( 1) the defendant filed or deposited
for record in any public office or with any public official, ( 2) a document
containing a false statement or false representation of material fact, ( 3) with
knowledge of the falsity. On appeal, the defendant argues the state failed to prove
he falsely represented his domicile on the notice of candidacy he filed with the
Lafourche Parish Clerk of Court.
A person' s domicile is the place of his habitual residence; however, the
concepts of domicile and residence are not synonymous. La. Civ. Code art.
38; Russell v. Goldsby, 00- 2595 ( La. 9/ 22/ 00), 780 So. 2d 1048, 1051 ( per
curiam).
A person can have several residences, but only one domicile. See La.
Civ. Code art. 39; Landiak v. Richmond, 05- 0758 ( La. 3/ 24/ 05), 899 So. 2d 535,
542. Domicile essentially consists of two elements— residence and an intent to
remain. Landiak, 899 So. 2d at 542.
A person retains his domicile until he acquires a new one. La. Code Civ.
Pro. art. 44.
A person changes his domicile when he moves his residence to
another location with the intent to make that location his habitual residence. La.
rd
Civ. Code art. 44. Proof of intent to change domicile depends on the
circumstances. La. Civ. Code art. 45. A party seeking to show that a person' s
domicile has changed must overcome the legal presumption that it has not changed
by positive and satisfactory proof of establishment of a domicile as a matter of fact
with the intention of remaining in the new place and of abandoning the former
domicile. Russell, 780 So. 2d at 1051; In re Succession of Cannata, 14- 1546 ( La.
App. i Cir. 7/ 10/ 15), 180 So. 3d 355, 361, writ denied, 15- 1686 ( La. 10/ 30/ 15),
180 So. 3d 303.
A sworn declaration of intent, recorded in the parishes from which and to
which a person intends to move, may be considered as evidence of intent to change
domicile. La. Civ. Code art. 45. Absent such a formal declaration, the evidence
must be weighed to determine domicile in fact. Landiak, 899 So. 2d at 543.
Circumstances indicating establishment of a domicile include where a person
sleeps, takes his meals, has established his household, and surrounds himself with
his family and the comforts of domestic life. In re Succession of Cannata, 180 So.
3d at 361. Relevant considerations include voter registration, homestead
exemptions, vehicle registration records, driver' s license address, statements in
notarial acts, and evidence of where most of the person' s property is housed.
See Landiak, 899 So. 2d at 543- 44. Domicile is therefore determined on a case- by-
case basis. See Pattan v. Fields, 95- 1936 ( La. App. 1 Cir. 9/ 26/ 95), 669 So. 2d
1233, 1238 ( en Banc, per curiam), writs denied, 95- 2381, 2382 ( La. 9/ 29/ 95), 661
So. 2d 1341, 1342.
Detective Nicholas Pepper of the Lafourche Parish Sheriff' s Office
investigated the complaint against the defendant. He obtained a copy of the
defendant' s notice of candidacy that was filed with the clerk of court' s office on
December 2, 2015, and indicated the defendant' s domicile was in Lafourche
Parish. He obtained further records indicating the defendant was registered to vote
5
in Lafourche Parish, and owned and claimed a homestead exemption on the home
in Raceland. The defendant also listed the Raceland address on his driver' s
license. Detective Pepper confirmed that the defendant obtained a marriage license
in Jefferson Parish and married on April 5, 2014. On the marriage license, the
defendant listed the home in Raceland as his address.
Detective Pepper learned the defendant frequently drove a truck; therefore,
he searched the records of the Office of Motor Vehicles and discovered a 2015
Dodge truck was registered in the names of both the defendant and his wife at her
address in Metairie. Detective Pepper testified he mapped the most obvious route
between the two residences and utilized a license plate reader located at the parish
line to review the defendant' s travel patterns from August 2016 through August
2017. According to the data Detective Pepper collected, the defendant' s truck
crossed the parish line 380 times, typically originating eastbound from the
direction of the Metairie house and traveling toward the Raceland address.
Detective Pepper clarified the figure indicated the defendant crossed into
Lafourche Parish at least one hundred ninety times.
Detective Pepper subsequently learned the defendant sometimes drove to
Parish Council meetings in a BMW that was observed at the Metairie address.
Detective Pepper testified it appeared the defendant was driving from Metairie to
Raceland and switching vehicles before returning. However, Detective Pepper
conceded the defendant owned several vehicles, including a Volvo that was
registered at the Raceland address. Detective Pepper also conceded he did not
know the purpose of the defendant' s travel across the parish line.
A search warrant yielded the utility records of the defendant' s Raceland
address.
Detective Pepper testified that approximately one month prior to the
defendant' s wedding, energy usage decreased to less than half what it had been.
Water consumption significantly increased between November 2015 and
rol
November 2016, and Detective Pepper' s investigation revealed the water company
tried to contact the defendant about a potential leak.
During the course of his investigation, Detective Pepper also learned the
defendant reported a burglary at the Raceland address in August 2015, and claimed
some guns had been stolen. Lieutenant Benjamin Paul Dempster investigated the
complaint and testified that dozens, even hundreds, of guns were present at the
residence, and the defendant claimed two had been stolen. The defendant was
uncertain of the exact date of the burglary, but believed it occurred between
August 5 and August 31, 2015. When asked about the condition of the house,
Lieutenant Dempster stated it did not appear anyone lived there at the time,
describing the yard as uncut, with grass calf to knee high, and the house as dusty,
with things " packaged up." Lieutenant Dempster testified the defendant " said he
wasn' t living at the house for a while and was thinking about having it
demolished." He could not recall if the defendant stated he planned to build a new
house in its place. Detective Pepper testified the investigating officers told him the
house appeared uninhabitable.
Detective Pepper testified he interviewed the defendant, who indicated he
was in the military, serving as a battalion commander in the Army Reserves, and
was often away. Detective Pepper made no determination of whether the
defendant moved furniture out of the Raceland house or whether the defendant
kept his clothes in Raceland. According to Detective Pepper, the defendant said
his children lived with his new wife, at the Metairie address. Detective Pepper
further testified that the defendant also said he acquired a tenant at the Raceland
address in 2017, who owned one of the vehicles Detective Pepper observed.
The defendant' s wife, Monica Bourgeois, testified she owned the Metairie
house and had lived there for 26 years. She stated she and the defendant married
April 5, 2014, and separated in May 2018. After their marriage, they shared both
7
of their homes and spent time between them. However, each retained separate
ownership of their home and each claimed a homestead exemption on their own
home. She stated that most of the time they slept in Metairie, but they also slept in
Raceland, where they hosted crawfish boils, fishing, and parties. She further stated
the defendant had some belongings at the Metairie house, including clothes and
memorabilia, but "[ h] e never fully moved into" the Metairie house. According to
Monica, the two " compromised and went back and forth to both places."
Both the defendant and his wife had children from previous relationships,
and Monica' s son lived at the Metairie house during alternating weeks when she
exercised physical custody. Monica testified that between 2014 and 2015, the
defendant' s children often visited with him in Raceland. Pursuant to a consent
judgment reached between the defendant and his ex- wife, the defendant' s son,
J.B.,2 moved to the Metairie house and attended Archbishop Rummel High School
Rummel), located in Metairie, from August 2015 until the couple separated. The
defendant' s youngest daughter lived at the Metairie house and attended
Archbishop Chappelle High School in Metairie from August 2017 until May 2018.
However, Monica stated the children were frequently at the Raceland home, and
sometimes the defendant' s son was driven to school from the Raceland home.
Following the couple' s split, the children began attending school in Lafourche
Parish.
Monica testified she and the defendant spent more nights in Metairie after
the defendant' s son moved into the Metairie house. She explained the defendant' s
presence in Metairie was further affected by his father' s two-month hospital stay,
which preceded his August 2015 death. Monica testified the defendant was also
required to travel for military service. She testified the defendant returned from his
2
To protect their privacy, the minor children are referred to by their initials. Compare
Uniform Rules —Courts of Appeal, Rule 5- 1 and 5- 2.
1-2
last overseas deployment in 2011, but thereafter he was away for military service a
weekend to a week each month, and had trainings and assessments at other
locations. She did not recall how often the defendant traveled for military duty
between 2014 and 2015, specifically. However, she agreed one of the reasons the
defendant' s son moved to her home in Metairie was so she could assist while the
defendant was away.
Monica stated the defendant never abandoned the Raceland house and kept
his furniture, belongings, and his collection of 50 to 75 M1 Carbine guns there. She
characterized the Raceland home as a house, not a camp, that was " in disrepair,"
but functional. She agreed the house became " a mess" when the defendant was
deployed to Afghanistan, but testified it was not abandoned and, despite the mess,
she and the defendant both slept there, and specifically did so between 2014 and
2015. She further indicated the defendant' s children had belongings, including
trophies, at the Raceland home, and had certificates on the walls. Monica also
testified the family raised chickens at the Raceland home while one of the
defendant' s daughters participated in the 4-H club, which included the year 2015.
She admitted she tired of the mess at the Raceland home, but maintained that the
defendant never moved out of it. She explained that before their split, she and the
defendant planned to build a house in Raceland and sell her house.
When asked about the truck registration, Monica explained she had a better
credit score and qualified for the financing; therefore, she was the primary lender
on the account and registered the vehicle in Metairie. She stated the other vehicles
the defendant owned were registered in Raceland. She also indicated the defendant
received all of his mail in Raceland. During her testimony, Monica identified
various photographs of the defendant and his children at the Raceland home at
various times, including 2015.
Z
In June 2015, Mr. Yu Chen Wang moved to a house next door to Monica' s.
He testified he had seen the defendant and his children at the Metairie house, but
was not sure if the defendant lived there. He could not say how often the
defendant was at the Metairie house at any particular time, but stated he often saw
the defendant at the Metairie house " a long time ago," but had not seen the
defendant more recent to the September 2018 trial.
The defendant' s ex- wife, Kristina " Kitty" Frelich, testified she and the
defendant divorced in 2009, after thirteen years of marriage, and are the parents of
three children. She explained they agreed to change their original custody
arrangement to name the defendant J. B.' s domiciliary parent when their son asked
to live with his father and attend Rummel. Kitty testified her understanding was
the defendant was living in Metairie with Monica at the time. She verified that on
the application for the school year beginning in August 2015, the defendant listed
Monica' s Metairie address as his own; however, Kitty also identified mail from the
school addressed to the defendant in Raceland. She testified their youngest
daughter later went to live with the defendant in Metairie to attend school.
Kitty indicated most of the custody exchanges took place in Metairie, at
Monica' s home. She also indicated that when the children spent holidays with
their father, they were at the Metairie address. Kitty admitted, however, she had
no knowledge of how frequently the defendant slept at his Raceland home. She
recalled her daughter raising chickens at the Raceland home in 2013, but stated for
two years she raised them at an uncle' s house " because he wasn' t there in
Raceland." She also testified her children refused to live at the defendant' s
Raceland home because of its deplorable condition.
J. B., who was sixteen years old at the time of the trial, testified the Raceland
home was not in the best condition, and most visitation with his father was in
Metairie. He explained that he moved to the Metairie home to begin the 2015
10
school year. During that time, he recollected his father spending the night there in
the room with Monica. J.B. also recalled that his father traveled frequently with
the military, and while his father was away, Monica cared for him. When asked if
his father lived in the Raceland house, J.B. answered that his father " slept there but
not full time." J.B. could not say how many times his father slept at the Raceland
home in 2015. J.B. also testified that when he attended Rummel, he was
registered in Raceland."
The defendant' s adult daughter, Lauren, testified she moved into a dormitory
at Tulane in 2015, and at that time her father was living with Monica in Metairie.
Lauren stated visits with her father were in Metairie and recalled celebrating
holidays there during 2014 and 2015. She explained she was very close to the
defendant' s father, who passed away in 2015, and visited him in the hospital at
Ochsner every chance she could, but recalled seeing her father there only once or
twice.
Lauren stated the Raceland home was in terrible condition, and stated she
last visited it in June 2018, and before that had driven by but not visited her father
there since 2012. Lauren did not know how many family events were held in
Raceland or how much time her father spent in Raceland in 2015, indicating she
did not see her father on a regular basis. She recalled driving her siblings from
Metairie to their mother' s house, but did not recall taking them to Raceland. Many
times she picked up her siblings from school and took them to the Metairie home.
She acknowledged her father did not change his address from Raceland to
Metairie, but stated " he did move to Metairie," describing Raceland as a place he
lived " partially." She also indicated her father moved many of his guns to
Metairie, but did not know if he did so because of the burglary. She confirmed that
she and her siblings had trophies at the Raceland home, but stated that " doesn' t
11
mean anything." She further testified her sister raised the chickens at their uncle' s
house in 2015.
The defendant did not testify at trial, but, in defense, presented the testimony
of his third child, C.B., and Mr. Q.E. Monnier, Jr.
C.B., who was fifteen years old at the time of the trial, testified her father
was, at that time, living in Raceland. She agreed the house was " messy," and in
disrepair, but stated that is where he lived. The last time she could recall staying
there was in 2012. C. B. did not know the specific times her father traveled for
military service, but remembered them. When asked if her father ever moved out
of the Raceland house, she answered, " not a hundred percent, but I would say
about — he didn' t completely move out. He still would go back." She said the only
time the Raceland house was " 100 percent abandoned" was when her father was in
Afghanistan. She explained that after his return, " He lived there for a little while
but then he started staying at Monica' s a little bit more and more."
C.B. recalled visiting her father at the Raceland house in 2015, but described
being scared to go inside because it was not clean and might have had spiders. She
confirmed some things kept in the house and on the six -acre property, stating cattle
was currently kept in the pasture. She also recalled driving from Metairie to spend
the day in Raceland cutting the grass, but could not give the exact timeframe.
When asked if Monica went to Raceland much, she responded, " No." C.B.
testified holidays with her father were spent in Metairie. She recalled bringing a
friend to the Raceland house only once in 2015.
Mr..Monnier, a retired corporate executive, testified he had recently learned
that he was identified as the complainant who filed the complaint against the
defendant, but denied doing so. He explained he was a commissioner and one of
the authors of the Home Rule Charter and that he maintained " a continuous
dialogue" with the prior district attorney. Mr. Monnier recalled an informal
12
discussion with the district attorney about talk surrounding the defendant and
references to the defendant as " the Jefferson parish councilman." However, he
denied making a formal complaint about the defendant' s 2015 notice of candidacy.
Mr. Monnier further testified he had no knowledge of any efforts in the Council to
remove or penalize the defendant for visiting his wife in Metairie. He also denied
any knowledge of the sheriffs investigation. However, he acknowledged recently
learning another complaining witness, described as the leader of those in the
community voicing objections to the defendant' s absence, had " an axe to grind"
with the defendant.
The trier of fact is free to accept or reject, in whole or in part, the testimony
of any witness. Moreover, when there is conflicting testimony 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.
The trier of fact' s determination of the weight to be given evidence is not subject to
appellate review. An appellate court will not reweigh the evidence to overturn a
factfinder' s determination of guilt. State v. Taylor, 97- 2261 ( La. App. 1 Cir.
9/ 25/ 98), 721 So. 2d 929, 932. When a case involves circumstantial evidence and
the trier of fact reasonably rejects the hypothesis of innocence presented by the
defense, that hypothesis falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt. See State v. Moten, 510 So. 2d 55, 61
La. App. I Cir.), writ denied, 514 So. 2d 126 ( La. 1987).
The defendant argues the state failed to prove he falsely represented his
domicile on his notice of candidacy. He contends that while the state presented
evidence he resided for a time in Metairie, the state failed to overcome the legal
presumption that he intended to remain domiciled in Lafourche Parish. The
defendant executed no express declaration of intent to change domicile and instead
swore on his notice of candidacy that he was domiciled in Lafourche Parish. He
13
contends the state' s evidence of time spent in Metairie does not establish, beyond a
reasonable doubt, that he changed his domicile before filing his notice of
candidacy in December 2015. He further points to the numerous vehicles
registered to his Raceland address, to items of personal property kept there, to his
registration to vote in Raceland, and to his homestead exemption there, which
evidence his domicile was Lafourche Parish as he represented.
The state counters that the only evidence produced at trial to support the
defendant' s contention that he remained domiciled in Lafourche Parish was " self-
serving" and insufficient to overcome the overwhelming circumstantial evidence of
the defendant' s intent to change his domicile to Jefferson Parish. The state reasons
that the jury was presented with the defendant' s contention that he had a
presumption of continued domicile in Lafourche Parish, but reasonably rejected it
when presented with the state' s evidence.
The defendant' s driver' s license, voter registration, mailing address, and
homestead exemption evidence proof the defendant considered Raceland, in
Lafourche Parish, his primary residence, and further evidence proof of his intent to
remain. The state' s evidence that the defendant changed his domicile before filing
his notice of candidacy consisted of proof the defendant spent time at his wife' s
home in Metairie, meaning he spent less time in Raceland than before their
marriage;
testimony of the defendant' s ex- wife and children as to where they
believed he lived; and testimony the defendant' s Raceland home was in disrepair
but livable. Even when viewed in the light most favorable to the state, the
evidence falls short of proving beyond a reasonable doubt the falsity of the
defendant' s sworn statement that he was domiciled in Lafourche Parish. The
state' s evidence was inconclusive at best and was not dispositive of either the
defendant' s domicile or the defendant' s intent regarding his domicile. Even a
14
person who does not spend a majority of his time at a particular address may still
be domiciled there. See Russell, 790 So. 2d at 1052.
We are mindful that our role as a reviewing court is not to act as a thirteenth
juror and substitute our judgment for that of the jury; however, under the facts of
this case and considering the evidence presented, we conclude no rational trier of
fact could have found the essential elements of the crime proven beyond a
reasonable doubt.3The Jackson standard does not permit jurors to speculate if the
evidence is such that reasonable jurors must have reasonable doubt. State v. Jones,
16- 1502 ( La. 1/ 30/ 18), So. 3d( 2018YVL618433, * 3) ( per curiam).
Here, the evidence does not prove beyond a reasonable doubt that the defendant
committed the charged crime. Accordingly, we reverse the defendant' s conviction
and vacate the sentence imposed.4
CONVICTION REVERSED;`` SENTENCE VACATED.
3
We note that based on the facts presented, this defendant would have clearly prevailed in
a civil suit to disqualify him from candidacy. Finding the same facts support a finding in this
criminal case of proof beyond a reasonable doubt that the defendant was not domiciled in his
claimed parish would be anomalous and certainly chill the well documented policy of favoring
candidacy set forth throughout this state' s election jurisprudence. See Landiak, 899 So. 2d at
550.
4
Considering this, we pretermit discussion of the defendant' s remaining assignments of
error, but express serious questions about the admission of evidence involving events that
occurred after December 2, 2015, the date of the alleged crime,
15
STATE OF LOUISIANA 2019 KA 0426
VERSUS FIRST CIRCUIT
JAMES BOURGEOIS COURT OF APPEAL
STATE OF LOUISIANA
WELCH, J., dissenting.
KbJ I respectfully disagree with the majority' s decision in this case. After a trial
by jury, the jury found the defendant guilty as charged of filing or maintaining a
false public record, a violation of La. R. S. 14: 133. A conviction based on
insufficient evidence cannot stand, as it violates Due Process. See U.S. Const.
amend. XIV; La. Const. art. I, § 2. The standard of review for the sufficiency of
the evidence to uphold a conviction is whether, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560, 573 ( 1979). See La.
C. Cr.P. art. 821( B); State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654,
660. The Jackson standard of review, incorporated in La. C. Cr.P. art. 821, is an
objective standard for testing the overall evidence, both direct and circumstantial,
for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15: 438
provides that, in order to convict, the fact finder must be satisfied the overall
evidence excludes every reasonable hypothesis of innocence. See State v.
Patorno, 2001- 2585 ( La. App. I" Cir. 6/ 21/ 02), 822 So. 2d 141, 144. When a
conviction is based on both direct and circumstantial evidence, the reviewing court
must resolve any conflict in the direct evidence by viewing that evidence in the
light most favorable to the prosecution. When the direct evidence is thus viewed,
the facts established by the direct evidence and the facts reasonably inferred from
the circumstantial evidence must be sufficient for a rational juror to conclude
beyond a reasonable doubt that the defendant was guilty of every essential element
of the crime. State v. Forrest, 2016- 1678 ( La. App. 1" Cir. 9/ 21/ 17), 231 So. 3d
865, 870, writ denied 2017- 1683 ( La. 6/ 15/ 18), 257 So. 3d 687. The trier of fact is
free to accept or reject, in whole or in part, the testimony of any witness. State v.
Folse, 2018- 0153 ( La. App. I" Cir. 9/ 21/ 18), 258 So. 3d 188, 195, writ denied,
2018- 1743 ( La. 4/ 22/ 19), 268 So. 3d 300. Unless there is internal contradiction or
irreconcilable conflict with the physical evidence, the testimony of a single
witness, if believed by the fact finder, is sufficient to support a factual conclusion.
State v. Marshall, 2004-3139 ( La. 11/ 29/ 06), 943 So. 2d 362, 369, cert. denied,
552 U.S. 905, 128 S. Ct. 239, 169 L. Ed. 2d 179 ( 2007); State v. Howard, 2018-
0317 ( La. App. I" Cir. 9/ 21/ 18), 258 So. 3d 66, 76, writ denied, 2018- 1650 ( La.
5/ 6/ 19), 269 So. 3d 692.
An appellate court is constitutionally precluded from acting as a "' thirteenth
juror' in assessing what weight to give evidence in criminal cases; that
determination rests solely on the sound discretion of the trier of fact." State v.
Is'
Johnson, 2010- 0137 ( La. App. Cir. 12/ 22/ 10), 2010 WL 5464926, at * 7
unpublished). The fact the record contains evidence that conflicts with the
testimony accepted by the trier of fact does not render the evidence accepted by the
trier of fact insufficient. State v. Morgan, 2012-2060 ( La. App. I" Cir. 6/ 7/ 13),
119 So. 3d 817, 826. Additionally, the trier of fact' s determination of the weight to
be given evidence is not subject to appellate review. State v. Duhon, 2018- 0593
La. App. I" Cir. 12/ 28/ 18), 270 So. 3d 597, 619, writ denied, 2019- 0124 ( La.
5/ 28/ 19), 273 So. 3d 315. Moreover, a court of appeal impinges on a fact finder' s
discretion more than is required to guarantee the fundamental protection of due
process of law when it accepts a hypothesis of innocence that is not unreasonably
4
rejected by the fact finder. State v. Mire, 2014- 2295 ( La. 1/ 27/ 16), 269 So. 3d
698, 703 ( per curiam).
To support a conviction for filing or maintaining false public records, the
State must prove beyond a reasonable doubt defendant was responsible for filing or
depositing for record with any public official, with knowledge of its falsity, any
document containing a false statement or false representation of a material fact.
See La. R.S. 14: 133( A)(3). Moreover, La. R.S. 18: 463( A) provided, in pertinent
part, "[ a] notice of candidacy shall be in writing and shall state the candidate' s
name, the office he seeks, the address of his domicile, and the parish, ward, and
precinct where he is registered to vote."' ( Emphasis added.) The instant notice of
candidacy was a sworn statement.
The domicile of a natural person is the place of his habitual residence. La.
C. C. art. 38. A natural person may reside in several places but may not have more
than one domicile. La. C. C. art. 39. In the absence of habitual residence, any
place of residence may be considered one' s domicile at the option of persons
whose interests are affected. La. C. C. art, 39. Domicile is maintained until
acquisition of a new domicile. A natural person changes domicile when he moves
his residence to another location with the intent to make that location his habitual
residence. La. C. C. art. 44. Proof of one' s intent to establish or change domicile
depends on the circumstances. A sworn declaration of intent recorded in the
parishes from which and to which he intends to move may be considered as
evidence of intent. La. C. C. art. 45. Spouses may have either a common domicile
or separate domiciles. La. C. C. art. 40.
1 The version of La. R.S. 18: 463 in effect on the date of the defendant' s December 2, 2015
offense governs the applicable punishment for the crime. See State v. Hyde, 2007- 1314 ( La.
11/ 21/ 07), 968 So. 2d 726, 726.
The Louisiana Legislature subsequently amended La. R.S.
18: 463 after the date the defendant filed his notice of candidacy, but those amendments modified
portions of La. R.S. 18: 463 not applicable to the instant matter. See 2015 La. Acts 307, § I ( eff.
June 29, 2015); 2016 La. Acts 281, § I ( eff. May 31, 2016); 2018 La. Acts 584, § 3 ( eff. Jan. 1,
2019); 2019 La. Acts 374, § I ( eff. June 19, 2019); 2019 La. Acts 374, § 2 ( eff. Jan. 1, 2020).
N
A party seeking to show that a person' s domicile has changed must
overcome the legal presumption that it has not changed by positive and satisfactory
proof of establishment of a domicile as a matter of fact with the intention of
remaining in the new place and of abandoning the former domicile. In re
Succession of Cannata, 2014- 1546 ( La. App. I' t Cir. 7/ 10/ 15), 180 So. 3d 355,
361, writ denied, 2015- 1696 ( La. 10/ 30/ 15), 190 So. 3d 303. Circumstances
indicating establishment of a domicile include where a person sleeps, takes his
meals, has established his household, and surrounds himself with his family and
the comforts of domestic life. Relevant considerations include voter registration,
homestead exemptions, vehicle registration records, driver' s license address,
statements in notarial acts, and evidence of where most of a persons' property is
housed. In re Succession of Cannata, 180 So. 3d at 361,
Consequently, the issue before this court is whether the defendant, by his
actions and words, intended to move his established domicile from Lafourche
Parish to Jefferson Parish before December 2015, when he filed his application for
election to the Lafourche Parish Council. If rational triers of fact could disagree as
to the interpretation of the evidence, the rational trier' s view of all of the evidence
most favorable to the prosecution must be adopted. State v. King, 2017- 0126 ( La.
App. 411 Cir. 10/ 27/ 17), 231 So. 3d 110, 118. Moreover, conflicting testimony as
to factual matters is a question of weight of the evidence, not sufficiency. State in
Interest of T.C., 2018- 1246 ( La. App. 1" Cir. 12/ 21/ 18), 269 So. 3d 716, 719.
Defendant' s children consistently testified that the defendant spent the
preponderance of his time in Metairie. Defendant' s son and his youngest daughter
lived with the defendant and attended Catholic schools in Jefferson Parish from
August 2015 to May 2018, and from August 2017 to May 2018, respectively.
Those two children testified that the defendant nightly stayed with their stepmother
in Metairie while they attended school in Jefferson Parish. Moreover, the
Li
consensus among the defendant' s children was that holidays with the defendant
were spent in Metairie, not Raceland. Defendant' s children, wife, and ex- wife all
described the Raceland home as being in such poor condition as to be on the point
of being uninhabitable.
Detective Nicholas Pepper of the Lafourche Parish Sheriffs Office
investigated the complaint against the defendant on being assigned the case in
August 2017. Det. Pepper testified that he observed a clear pattern of the
defendant commuting into Lafourche Parish during the day and returning to
Metairie in the evening for the period of August 2016 to August 2017, based on his
review of data from license plate readers posted at the Lafourche parish line. Det.
Pepper also reviewed reports of the utility usage at the defendant' s Raceland home
from 2014 to 2017. He testified that the electric usage at the Raceland home
dropped off considerably" about a month before the defendant' s wedding to his
second wife in April 2014, However, Det. Pepper noticed that from November
2015 to October 2016, water consumption at the Raceland home was " kind of off
the charts,," which suggested to him that the defendant was not present to notice a
significant water leak at the home.
Lieutenant Benjamin Dempster, also with the Lafourche Parish Sheriffs
Office, investigated a burglary at defendant' s Raceland home in August 2015. Lt.
Dempster testified that on interviewing the defendant about the burglary, the
defendant stated that he had not been at the Raceland house in a long time and that
he intended to demolish the house. Lt. Dempster observed that the house did not
appear as if anyone was living in the home at the time of the burglary.
The defendant' s Army Reserve service required him to be away from
Raceland for recurring periods of time, but that alone does not entirely explain the
lack of time spent in Raceland, nor his established pattern of entering the parish in
the morning and leaving again in the afternoon. Moreover, the defendant' s
5
behavior of " switching vehicles," wherein the defendant drove into Lafourche
Parish in one vehicle, but later left the parish in another vehicle, as noticed by Det.
Pepper, suggests a knowledge of wrongdoing. It is not unreasonable for a fact -
finder to presume that had his relationship with his second wife not become
estranged, the defendant would have remained living at the Metairie address
indefinitely, while commuting into Lafourche Parish to take care of his business
and property interests.
Defendant cites and relies on Russell v. Goldsby, 2000- 2595 ( La. 9/ 22/ 00),
780 So. 2d 1. 048 ( per curiam) and Autin v. Terrebonne, 612 So. 2d 107 ( La, App.
I" Cir.), writ denied, 604 So. 2d 954 ( La. 1992) to support his assertion that the
evidence was insufficient to prove he changed his domicile from Raceland to
Metairie. Both of those cases were decided primarily on the expressed intent of the
challenged party, See Russell, 780 So. 2d at 1051- 52; Autin, 612 So. 2d at 110.
But in more recent jurisprudence, the Louisiana Supreme Court has held:
D]etermination of a party' s intent to change his or her
domicile must be based on the actual state of the facts,
not simply on what the person declares them to be. " The
expressed intent of the party may be at variance with the
intent as evidenced by conduct."
Of course, because domicile and residence are two
different legal concepts the facts could indicate that one
has " abandoned the former domicile" in favor of a new
domicile even if the person continues to have a place of
residence at the former domicile.
Since domicile is generally defined as residence plus
intent to remain, a party' s uncontroverted testimony
regarding his intent may be sufficient to establish
domicile, in the absence of any documentary or other
objective evidence to the contrary. .. . [ I] n the absence of
a formal declaration, when
documentary or other
objective evidence casts doubt on a person' s statements
regarding intent, it is incumbent on courts to weigh the
evidence presented in order to determine domicile in fact.
Cl
Otherwise, the legal concept of domicile is meaningless
and every person would be considered legally domiciled
wherever he says he is domiciled.
Landiak v. Richmond, 2005- 0758 ( La. 3/ 24/ 05), 899 So. 2d 535, 543 ( citations
omitted).
While the record shows the defendant and his family spent time at the
Raceland address, and the defendant may have submitted a sworn statement
indicating his intended domicile to be in Lafourche Parish, his actions indicated
otherwise. Based on the totality of the evidence presented at trial— the testimony
of his family members, combined with the observations of law enforcement—
when viewed in the light most favorable to the prosecution, the State introduced
sufficient evidence from which the trier of fact could reasonably conclude beyond
a reasonable doubt that the defendant filed an affidavit falsely attesting that he was
domiciled in Lafourche Parish. Compare King, 231 So. 3d at 117- 20. For these
reasons, 1 respectfully dissent.
7