State v. Terrio, 19-K-90

• Court: Court of Appeal of Louisiana
• Writing for the Court: Susan Buchholz First Deputy Clerk
• Decision Date: 20 March 2019
• Docket Number: NO. 19-K-90,19-K-90
• Citation: State v. Terrio, NO. 19-K-90 (La. App. Mar 20, 2019)
• Parties: STATE OF LOUISIANA v. WAYNE TERRIO

STATE OF LOUISIANA v. WAYNE TERRIO

NO. 19-K-90

FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

March 20, 2019

Susan Buchholz First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SCOTT U. SCHLEGEL, DIVISION "D", NUMBER 17-4949

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

WRIT GRANTED

In this writ application, the State challenges the trial court's ruling that stalking is a specific intent crime. The State argues that while stalking was a specific intent crime under earlier versions of the stalking statute, La. R.S. 14:40.2, changes in the law have now made stalking a general intent crime as reflected in both the plain language of the statute and in the legislative history. It notes that while this Court, in an earlier writ disposition in this case on a different (though related) issue suggested that stalking is a specific intent crime, that issue was not then before this Court. After review, finding merit in the State's argument, we grant this writ application and reverse the trial court's ruling.

On August 2, 2017, the State filed a bill of information charging defendant, Wayne Terrio, with stalking, in violation of La. R.S. 14:40.2. In the prior writ disposition referenced by the State, this Court was asked by defendant to address, in pertinent part: 1) whether the trial court erred when it stated that the crime of stalking is a general intent crime, and 2) whether the trial court erred when it ruled as a matter of law that the defendant could not use evidence of his wife's alcoholism to show his intent and as a defense to his stalking charge. State v. Terrio, 18-K-529 (La. App. 5 Cir. 12/17/18) (unpublished writ disposition).

As to his first assignment of error, this Court ruled that there was never any ruling made by the trial court as to whether stalking was or was not a general intent crime, and that defense counsel failed to object to any alleged misstatement made by the trial court or file a notice of intent on the issue; thus, this Court declined to address the assignment. This Court also denied defendant's writ application with respect to his second assignment, finding the trial court did not err in excluding the "reverse 404B" evidence sought to be introduced by defendant at trial. In making its ruling, this Court recited the law as it pertained to stalking, noting, in dicta, that stalking is a specific intent crime, citing State v. Ryan, 07-504 (La. App. 3 Cir. 11/7/07), 969 So.2d 1268. Defendant filed a writ application with the Louisiana Supreme Court, which was subsequently denied. State v. Terrio, 18-2103 (La. 2/11/19), ___So.3d___, 2019 WL 669030.

On January 8, 2019, the State filed a motion to rule that stalking is a general intent crime and for the first time provided the court with a video of the May 31, 2001 House Criminal Justice Committee hearing on Senate Bill 196 of 2001, which became Act No. 1141 of 2001, in support of its proposition that the intent of the bill was to eliminate the requirement of specific intent and change stalking to a general intent crime. Defendant opposed the State's motion, contending that stalking is a specific intent crime, relying on this Court's prior writ disposition in this case and citing Ryan, supra, and State v. Saucier, 11-246 (La. App. 3 Cir. 11/9/11), 81 So.3d 691, writ denied, 12-0227 (La. 6/22/12), 91 So.3d 966.

Hearings on the State's motion were held on February 4, 2019, and February 20, 2019. At the hearings, the State argued that the committee hearing on the proposed bill to amend the stalking statute in 2001 evidenced the intent of the legislature to eliminate specific intent from the definition of the crime. In response, the defense argued that the trial court was bound by this Court's prior writ disposition issued in this case, arguing that this Court indicated stalking is a specific intent crime. The trial court in turn commented that while bound by this Court's rulings, it could find nowhere in the prior writ disposition where this Court ruled on the issue of whether stalking is or is not a specific intent crime. The trial judge further noted that he believed the State's argument had merit. Nevertheless, at the conclusion of the hearing on February 20, 2019, the trial court ruled that stalking is a specific intent crime, relying on the language of this Court's prior writ disposition. The State seeks review of this ruling.

Prior to 2001, stalking was defined under La. R.S. 14:40.2(A) as the "willful, malicious, and repeated following or harassing of another person with the intent to place that person in fear of death or bodily injury." It is uncontested by the State that under this version, stalking was considered a specific intent crime. However, effective August 15, 2001, La. R.S. 14:40.2 was amended by Act No. 1141 to delete the language requiring that the offender act "with the intent to place that person in fear of death or bodily injury," and provide that the willful, malicious, and repeated following or harassing of another person must "cause a reasonable person to feel alarmed or to suffer emotional distress."

A review of the 2001 House Criminal Justice Committee hearing on Senate Bill 196 of 2001, which became Act No. 1141 of 2001, supports a finding that the intent of the bill was to eliminate the requirement of specific intent and change stalking to a general intent crime. On the video, which was admitted at the hearing in the trial court, discussions were held regarding the intent of the bill during whichit was stated that the purpose of the proposed changes was to shift the focus from the offender's intentions to the perceptions of the victim. Specifically, it was argued that it would be immaterial whether the offender intended to place the victim in fear of death or bodily injury through his following and/or harassing; rather, it would be pertinent whether the victim felt alarmed or suffered emotional distress by the defendant's actions. The proponent of the bill explained that prosecutors have encountered difficulty in prosecuting stalking ...