State v. Jones
| Decision Date | 07 November 2012 |
| Docket Number | No. KA 12–540.,KA 12–540. |
| Citation | 101 So.3d 1083 |
| Parties | STATE of Louisiana v. Joseph JONES, et al. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Michael David Skinner, Skinner Law Firm, Lafayette, LA, for Defendants/Appellants, Joseph Jones, Plaisance Development Corp.Michael James Daniels, Baton Rouge, LA, for Appellee, Louisiana Department of Environmental Quality.
Trent Brignac, District Attorney, Thirteenth Judicial District Court, Ville Platte, LA, Timmy James Fontenot, Mamou, LA, for Appellee, State of Louisiana.
Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
[3 Cir. 1]The Defendants, Joseph Jones and Plaisance Development Corporation (PDC), were charged in a bill of information filed on June 24, 2010, with fifteen counts of violating the Louisiana Pollutant Discharge Elimination System (LPDES), violations of La.R.S. 30:2076.2(B).1 On the same date, Jones and PDC entered pleas of not guilty.
Jury selection commenced on August 29, 2011, and the jury found Jones and PDC guilty on all charges on September 1, 2011. On October 19, 2011, Jones was sentenced as follows: 1) counts 1, 4, and 14—knowingly exceeding the effluent limitations—two years at hard labor on each count with all but nine months of each sentence suspended, five years active supervised probation upon release from incarceration, a fine of $20,000.00 on each count, and court costs of $500.00 on each count; all sentences, fines, costs, and probationary periods to run concurrently; 2) counts 2, 5, 7, 10, and 13–knowingly not submitting a Discharge Monitoring Report (DMR) quarterly—two years at hard labor on each count with all but nine months of each sentence suspended, five years active supervised probation upon release from incarceration, a fine of $20,000.00 on each count, and court costs of $500.00 on each count; all sentences, fines, costs, and probationary periods to run concurrently; 3) [3 Cir. 2]counts 6, 9, and 12—knowingly not properly operating and maintaining facilities and treatment systems—two years at hard labor on each count with all but nine months of each sentence suspended, five years active supervised probation upon release from incarceration, a fine of $20,000.00 on each count, and court costs of $500.00 on each count; all sentences, fines, costs, and probationary periods to run concurrently; 4) counts 3, 8, 11, and 15—knowingly discharging any substance into the waters of the state without an appropriate permit, variance, or license—two years at hard labor on each count with all but nine months of each sentence suspended, five years active supervised probation upon release from incarceration, a fine of $20,000.00 on each count, and court costs of $500.00 on each count; all sentences, fines, costs, and probationary periods to run concurrently. The sentences, fines, and costs with regard to each of the four types of violations were to run consecutively with each other and all probationary periods were to run concurrently.
PDC was sentenced to serve two years at hard labor on each of the fifteen counts, which were suspended, and it was placed on five years active supervised probation on each count. PDC was also ordered to pay a fine of $150,000.00 on each count and court costs of $5,000.00. All sentences, fines, costs, and probationary periods were to run concurrently.
A motion to reconsider sentence was filed on November 17, 2011, and was denied on December 7, 2011. A motion for appeal was filed on January 5, 2012, and was subsequently granted.
Jones is now before this court asserting the following assignments of error: 1) his sentences are excessive; 2) the evidence was not sufficient to support his convictions; 3) the trial court failed to instruct the jury on the definition of responsible [3 Cir. 3]corporate officer; 4) the evidence was not sufficient to prove that he discharged into state waters; and 5) the trial court erred in not granting him a continuance.
PDC is now before this court asserting the following assignments of error: 1) its sentences are erroneous and excessive; 2) the evidence was not sufficient to prove it discharged into state waters; and 3) the evidence was not sufficient to prove it had a corporate existence.
By letter dated July 6, 2004, the Office of Environmental Services was informed of a credit sale by Evangeline Sewerage Company of several sewage systems to PDC, a nonprofit corporation. This sale included treatment facilities at East Side, Bye the Way, North Mamou, Kennedy, Poor Boy, and Theophile Subdivisions. The credit sale contained the following language:
A. Sewerage collection and treatment facilities, including all of the sewer lines, pumps, customer list, contracts for sewer services, sewer deposits, servitude for the use, maintenance and repair of the sewer lines, all situated within the following identified subdivisions located in Evangeline and St. Landry Parishes, Louisiana:
....
B. The use of the oxidation ponds of the sewerage systems, referenced to in Item A above, until the oxidation ponds become unusable or unnecessary.
The credit sale indicated the purchaser accepted the sewage systems “AS IS.” Jones executed the credit sale on behalf of PDC on July 1, 2004.
Evangeline Sewerage and PDC also entered into an operating agreement on July 1, 2004, wherein Evangeline Sewerage continued to operate the sewer systems. The agreement was signed by Jones and indicated that PDC “had say so in the day to day operations” of the sewer systems and Evangeline Sewerage took instructions from PDC. The operating agreement further stated:
[3 Cir. 4]A. The Operator agrees to provide services, and to assist and train Owner's personnel in the operation, maintenance, and repair for the benefit of the Owner [of] the following:
All sewerage systems and equipment, including all sewer lines, sewer pumps, customer lists and contracts for providing sewer services, sewer deposits, together with the use of the oxidation pond and all servitudes for maintenance of said sewer system, located in the subdivisions listed....
The agreement stated it was for a term of one year, but that the operator would continue to invoice customers and collect monies to owner for an additional six months. Thus, the operating agreement terminated around January 2006.
Tom Killeen, the LPDES permit manager, and Ryan Brignac, a criminal investigatorand division supervisor for the Louisiana Department of Environmental Quality (LDEQ), testified that a permit was required for the discharge of sanitary wastewater into the waters of the State. Additionally, permits were needed so that water quality of streams throughout the State that receive point source discharges could be regulated. Killeen testified that permits are given, and it was incumbent upon the permittee to conduct the sampling, reporting, operation, and maintenance required by the permit.
LDEQ issued permits to PDC for the East Side, Bye the Way, North Mamou, Kennedy, Poor Boy, and Theophile Subdivisions. The fifteen offenses for which Jones and PDC were convicted arise from violations of those permits.
In the second assignment of error, Jones contends the evidence was not sufficient to prove that he either did the things alleged in the bill of information or was a responsible corporate officer of PDC as required in order to convict him of the offenses charged. In the fourth assignment of error, Jones and PDC contend the evidence was not sufficient to prove they discharged into the waters of the State as [3 Cir. 5]charged in counts three and fifteen. These assignments of error will be addressed first in the event Jones and PDC are entitled to acquittals. State v. Hearold, 603 So.2d 731 (La.1992).
When an appellate court reviews a sufficiency of the evidence claim, the standard applied is whether, after 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). This standard has been codified by our legislature in Louisiana Code of Criminal Procedure article 821, which provides: “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.” When circumstantial evidence is used to prove the commission of the offense, Louisiana Revised Statute § 15:438 mandates, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Neal, 00–0674, p. 9 (La.6/29/01); 796 So.2d 649, 657,cert. denied,535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). This is not a separate test that applies instead of a sufficiency of the evidence test when circumstantial evidence forms the basis of the conviction. State v. Cummings, 95–1377, p. 4 (La.2/28/96); 668 So.2d 1132, 1134. Rather, all of the evidence, both direct and circumstantial, must be sufficient under Jackson to convince a rational juror the defendant is guilty beyond a reasonable doubt. It is not the function of the appellate court to assess credibility or reweigh the evidence. Id.
State v. Dorsey, 10–216, pp. 42–43 (La.9/7/11), 74 So.3d 603, 633,cert. denied,––– U.S. ––––, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012).
Louisiana Revised Statutes 30:2076.2 provides, in pertinent part:
B. Knowing violations.
(1) Any person who knowingly violates any provision of the Louisiana Pollutant Discharge Elimination System or any permit condition or limitation implementing any of such provisions in a permit issued under the Louisiana Pollutant Discharge Elimination System or any requirement imposed in a pretreatment program approved under the Louisiana Pollutant Discharge Elimination System;...
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