State v. Gaubert
| Decision Date | 09 December 2015 |
| Docket Number | No. 2015–KA–0774.,2015–KA–0774. |
| Citation | 179 So.3d 982 |
| Parties | STATE of Louisiana v. Jennifer GAUBERT. |
| Court | Court of Appeal of Louisiana — District of US |
179 So.3d 982
STATE of Louisiana
v.
Jennifer GAUBERT.
No. 2015–KA–0774.
Court of Appeal of Louisiana, Fourth Circuit.
Dec. 9, 2015.
Rehearing Denied Jan. 4, 2016.
Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Chief of Appeals, Mithun Kamath, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
Julie C. Tizzard, Julie C. Tizzard, L.L.C., New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge PAUL A. BONIN, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).
ROSEMARY LEDET, Judge.
In this criminal appeal, the defendant, Jennifer Gaubert, seeks review of the district court's judgment finding her guilty of criminal mischief, a violation of La. R.S. 14:59. For the reasons that follow, we affirm.1
STATEMENT OF THE FACTS AND THE CASE
On April 5, 2013, Ms. Gaubert went to the Third District Station (the "Station") of the New Orleans Police Department (the "NOPD") to report the crimes of extortion and video voyeurism, violations of La. R.S. 14:66 and 14:283, respectively. Ms. Gaubert, a practicing attorney, was the alleged victim of these crimes; Hervey Farrell, a taxi cab driver, was the alleged perpetrator.
When Ms. Gaubert made the extortion report,2 there were pending criminal and civil claims against her arising out of an April 6, 2012 taxi cab incident. During that taxi cab incident, Ms. Gaubert and Mr. Farrell had a sexual encounter. Whether that encounter was consensual—in whole or in part—is disputed. During the encounter, Mr. Farrell used his cellphone to take a bawdy video of Ms. Gaubert. On the day of the taxi cab incident, Mr. Farrell reported, in a 911 call, that he was sexually assaulted in his taxi cab by his passenger, Ms. Gaubert. As a result,
Ms. Gaubert was charged in municipal court with simple battery of Mr. Farrell. On April 5, 2013, the municipal charge was still pending.
Likewise, when she made the extortion report, Ms. Gaubert was a defendant in the civil lawsuit Mr. Farrell filed. He filed that suit on March 1, 2013 in Orleans Parish Civil District Court. In his civil suit, Mr. Farrell alleged that he suffered tort damages, including emotional distress, as a result of Ms. Gaubert's improper "sexual advances" in the taxi cab incident.
Exactly one year after the taxi cab incident, on April 5, 2013, Ms. Gaubert made the extortion report. Officer Alfred Moran, of the NOPD Traffic Division, was assigned the case. On that date, Ms. Gaubert spoke with Officer Moran at the Station for about an hour. According to the police report Officer Moran prepared, Ms. Gaubert related to him the following facts:
• [On] April 6, 2012, the victim's friend who was not identified by name3 flagged down a White Fleet Cab at the corner of Bourbon and Bienville St.
• The driver [Mr. Farrell] was told to bring Ms. Gaubert to 6440 Vicksburg St. [her home address in the Lakeview area of New Orleans].
• The victim [Ms. Gaubert] admitted she was intoxicated and during the ride home, she was allowed to get in the [front] passenger seat of the taxi and engaged in consensual kissing with [Mr. Farrell].
• The driver later stopped the vehicle near Louis XIV and Robert E. Lee Blvd. [in the Lakeview area] and used his cellphone to record video of the victim with her skirt lifted and video of her underwear and exposed genitalia. Ms. Gaubert never gave [Mr. Farrell] permission to record her.
• Ms. Gaubert stated that her Attorney, [Brigid Collins], received a copy of the video via email at which time [Mr. Farrell] indicated that if he received $1000, the video and the charges he filed against the victim would go away.
The police report neither defined what the criminal charges were that Mr. Farrell filed against Ms. Gaubert, nor mentioned Mr. Farrell's pending civil lawsuit.
A few days after making the extortion report, Ms. Gaubert returned to the Station and left a handwritten note for Officer Moran. In the note, Ms. Gaubert provided the following additional information about Mr. Farrell: his address, date of birth, physical description, and social security number. She also stated in the note the following: "[p]lease call me for additional information/follow up regarding video voyeurism/extortion." Based on the information Ms. Gaubert provided to him, Officer Moran obtained an arrest warrant for Mr. Farrell for video voyeurism and extortion.4 The arrest warrant was signed on April 21,
2013. On August 19, 2013, Mr. Farrell was arrested. The arrest occurred when Mr. Farrell was stopped for a traffic violation. As a result of the arrest, Mr. Farrell spent about thirty hours in jail.
Following an investigation of Ms. Gaubert's complaint against Mr. Farrell, the State charged Ms. Gaubert, on October 1, 2013, with one count of false swearing for the purposes of denying a constitutional right, a violation of La. R.S. 14:126.2. On October 7, 2013, Ms. Gaubert was arraigned and pled not guilty. On November 15, 2013, she elected a bench trial.
On April 2, 2014, Ms. Gaubert was tried in municipal court on the simple battery charge and found guilty of that offense. On June 13, 2014, the State amended the bill of information to charge Ms. Gaubert with one count of false swearing for the purposes of violating public health or safety, a violation of La. R.S. 14:126.1. On that same day, she pled not guilty to that charge.
On January 16, 2015, a one-day bench trial was held. The State called the following two witnesses: Officer Moran and Ms. Collins. Officer Moran's testimony focused on Ms. Gaubert's April 5, 2013 visit to the Station to make the extortion report. His testimony tracked the police report and arrest warrant that he prepared. Ms. Collins testified that she was Ms. Gaubert's friend and that she was Ms. Gaubert's attorney in the municipal case. Ms. Collins denied ever receiving an email or any other form of communication from Mr. Farrell or his attorney Timothy Richardson) requesting $1,000.00 for the charges and the video to go away. She acknowledged receiving a demand from Mr. Farrell's attorney for between $50,000.00 and $60,000.00, but she explained the demand was in connection with the settlement of Mr. Farrell's civil lawsuit. Although she could not recall the order, she testified that "a money demand was made and a video was provided." She acknowledged receiving a copy of the video.
At the close of the State's case, Ms. Gaubert moved for a directed verdict of acquittal.5 The district court deferred its ruling. Ms. Gaubert then called the following five witnesses: Shandrell Ezidore; Hector Velasquez; Gasper Migliore, Jr.; Mr. Farrell; and Ms. Gaubert.6 Ms. Gaubert's case focused on the April 6, 2012 taxi cab incident. Ms. Ezidore, a NOPD 911 operator, verified the 911 call made by Mr. Farrell on April 6, 2012. Mr. Velasquez and Mr. Migliore, both neighbors of Ms. Gaubert on April 6, 2012, testified to what they observed in the service alley behind their Lakeview residences on or about that date. Simply stated, the neighbors testified that they witnessed a couple engaging in sexual relations in a taxi cab that was parked in the service alley. The neighbors both denied having any knowledge of Mr. Farrell's alleged extortion attempt. Mr. Farrell and Ms. Gaubert gave diametrically opposed versions of the April 6, 2012 taxi cab incident. Mr. Farrell denied extorting Ms. Gaubert; whereas, Ms. Gaubert testified that she believed he extorted her.
At the end of the trial, the district court denied Ms. Gaubert's motion for a directed verdict of acquittal and found her guilty of the lesser, misdemeanor offense of criminal mischief. La. R.S. 14:59. On February 25, 2015, Ms. Gaubert filed motions for new trial and post-verdict judgment of acquittal. The district court denied those motions. The district court sentenced Ms. Gaubert to one day in parish prison, suspended; one day of inactive probation with the conditions that she not purchase or possess a gun during probation; and ordered her to pay $244.00 for misdemeanor court costs, $500.00 for misdemeanor or felony costs, and $250.00 for the Indigent Transcript Fund. This appeal followed.
DISCUSSION
Jurisdiction
As a preliminary matter, we address the issue of this court's jurisdiction to decide this appeal. Ms. Gaubert seeks to appeal her misdemeanor conviction for criminal mischief, a violation of La. R.S. 14:59. This Court has recognized that there is no right of appeal from a misdemeanor conviction. State v. Morales, 13–1148, pp. 1–2 (La.App. 4 Cir. 1/22/14), 133 So.3d 144, 145 (citing State v. Walker, 05–0876, p. 1 (La.App. 4 Cir. 3/15/06), 929 So.2d 155, 156 ); see also La. C.Cr.P. art. 912.1(B). However, in this case, Ms. Gaubert was charged and tried for a felony—false swearing for the purposes of violating public health or safety, a violation of La. R.S. 14:126.1. The Louisiana Constitution vests appellate courts with jurisdiction over "all criminal cases triable by a jury,...
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