State v. McDowell

• Decision Date: 08 March 2023
• Docket Number: 22-692
• Parties: STATE OF LOUISIANA v. DUSTIN M. MCDOWELL
• Court: Court of Appeal of Louisiana — District of US

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STATE OF LOUISIANA v. DUSTIN M. MCDOWELL

No. 22-692

Court of Appeals of Louisiana, Third Circuit

March 8, 2023

APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 21-814 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

Chad P. Guillot, Attorney at Law Post Office Drawer 158 COUNSEL FOR DEFENDANT/APPELLANT: Dustin M. McDowell

J Reed Walters, District Attorney W. Evans Dorroh, III Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Gary J. Ortego, Judges.

SHARON DARVILLE WILSON JUDGE

Defendant Dustin M. McDowell, appeals his conviction of the crime of attempted domestic abuse battery with child endangerment and argues that this a non-crime. For the following reasons, we affirm Defendant's conviction and sentence.

I. ISSUES

Defendant asserts two assignments of error:

1. The trial court erred when it placed the charge of "Attempted Domestic Abuse Battery with Child Endangerment" in the list of potential responsive verdicts on the verdict form.

2. The trial court erred when, after the defendant made a request to sequester witnesses and [to have] the victim testify before other witnesses should she not be sequestered, it did not require that the non-sequestered victim testify before other witnesses.

II. FACTS AND PROCEDURAL HISTORY

Defendant, Dustin M. McDowell, and his wife, A.M.,^[1] got into an argument at their home in Lasalle Parish on June 13, 2021. Defendant claims that the argument was about his taking their infant child, C.M., for a ride to get her to go to sleep. Defendant's wife, A.M., claims that she was battered by Defendant while their children, C.M., J.M, and K.A., were present in the home.

On October 10, 2021, the State filed a bill of information charging Defendant with one count of domestic abuse battery with child endangerment, in violation of La.R.S. 14:35.3. On May 24, 2022, a petit jury convicted Defendant of the lesser offense of attempted domestic abuse battery with child endangerment, in violation of La.R.S. 14:27 and 14:35.3.

On July 7, 2022, Defendant filed a motion for new trial, motion to vacate conviction, and motion in arrest of judgment with incorporated memorandum, arguing that attempted domestic abuse battery with child endangerment is not a legislatively authorized responsive verdict to the charged offense of domestic abuse battery with child endangerment. On August 2, 2022, the trial court denied the motions and proceeded with Defendant's sentencing hearing. Defendant was ordered to serve one and one-half years at hard labor, with all but twenty-four hours of the time suspended. Defendant was placed on two years of supervised probation, fined $500.00, and ordered to pay $150.00 toward the cost of the presentence investigation. Defendant now appeals.

III. ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find, as we did in State v. Samuel, 19-408, p. 9 (La.App. 3 Cir. 2/5/20), 291 So.3d 256, 263, writ denied, 20-398 (La. 7/24/20), 299 So.3d 77, that the trial court's statement that Defendant was not entitled to diminution of sentence for good behavior and that the sentence was not enhanced was "simply [] an advisement that Defendant's sentence was not subject to diminution and not [] a denial by the trial court of diminution of sentence. We further note that the trial court is no longer required to 'advise' a defendant as to whether his sentence is subject to diminution. La.Code Crim.P. art. 894.1(D)." Therefore, we find no errors patent with respect to the trial court's statement regarding diminution of sentence.

The trial court pointed out that the defense failed to object to the jury charge giving attempted domestic abuse battery with child endangerment as a responsive verdict prior to it being given to the jurors and noted that the defense waited until two days before sentencing to object. The defense acknowledges its failure to make a contemporaneous objection; however, it asserts that conviction for a non-responsive verdict is an error patent, which requires no objection. The return of a verdict for a non-crime or a crime that is not responsive to the original charge "is a patent error that does not require a contemporaneous objection." State v. Brown, 211336, p. 5 (La. 6/29/22), 345 So.3d 988, 991 (per curiam), overruling State v. Mayeux, 498 So.2d 701, 702 (La.1996). We find that Defendant is not precluded from raising this argument and discuss the merits thereof below.

IV. LAW AND DISCUSSION

Attempted Domestic Abuse Battery with Child Endangerment

The defense argues that the jury convicted Defendant of a non-crime. Defendant asks this court to recognize his acquittal of domestic abuse battery with child endangerment reverse his conviction for attempted domestic abuse battery with child endangerment, and remand the matter to the trial court for further proceedings.

Louisiana Revised Statutes 14:35.3(A) defines domestic abuse battery as "the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member." Louisiana Revised Statutes 14:35.3(I) further provides that:

Notwithstanding any provision of law to the contrary, when the state proves, in addition to the elements of the crime as set forth in Subsection A of this Section, that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.

In general, attempt is a lesser grade of the primary crime. Louisiana Revised Statutes 14:27 provides, in pertinent part, that:

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.

Louisiana Revised Statutes 14:37.7 specifically criminalizes domestic aggravated assault with child endangerment. Domestic aggravated assault is defined as "an assault with a dangerous weapon committed by one household member or family member upon another household member or family member." La.R.S. 14:37.7(A). Louisiana Revised Statutes 14:37.7(D) provides that:

When the state proves, in addition to the elements of the crime as set forth in Subsection A of this Section, that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence imposed by the court shall be two years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

There is no correlating companion crime of domestic abuse simple assault with child endangerment.

The trial court gave the following oral reasons for denying Defendant's motions:

Responsive verdicts are governed by Louisiana Code of Criminal Procedure. In this particular case[,] generally[,] it's 814[,] and 815 [is] the applicable provision[]. In this case, we had a charge of Domestic Abuse Battery with Child Endangerment. The charge of Domestic Abuse Battery with Child Endangerment is not provided for in Louisiana Code of Criminal Procedure article 814 in any one of, I think, 67 specific instances. Therefore, you have to refer to article 815[,] which provides that the responsive verdicts for cases not provided in article 814 are either, guilty, guilty of a lesser included grade, whether it be a misdemeanor or felony, or not guilty. I think it's appropriate that an attempt, by definition, would be a lesser and included offense. But the question becomes, presented to me today, is, is an Attempted Domestic Abuse Battery with Child Endangerment anything more than a Simple Assault? Because, specifically, in the Louisiana Criminal Treatise, which every court in the State of Louisiana uses, provides for responsive verdicts in that matter that were provided for here. It's either guilty, . . . it has Guilty of Domestic Abuse Battery, Simple Battery, Simple Assault and Not Guilty. And it had a parenthetical that it did suggest a response verdict of Attempted Domestic Abuse Battery with Child Endangerment. And it does provide a footnote speaking of that and saying it is appropriate in most cases. I used that. I submitted it to counsel. Counsel did not object. I put it on the record regarding the charge conference and the acceptance of the charges. Everybody agreed. I've read the cases cited by defense. I do believe, in this case, there is more to it than [] just a use of force or violence against the person of another. It's kind of similar to the sexual battery allegation. Not only do you have to prove that, you have to prove that person was a domestic partner, someone of an intimate relation, or whatever. And also, there's another victim to this. There's a Child Endangerment component, so that the children present are victims of this. So, I think that it's more than just a Simple Assault. If you go with the simple assault, simple assault doesn't take into account the actual presence of the children or the child. In this case,

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