Judgment rendered November 18, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,449-LA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
Versus
JOSEPH ALEXANDER Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 93840
Honorable Allen Parker Self, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Annette Fuller Roach
JOHN SCHUYLER MARVIN Counsel for Appellee District Attorney
HUGO A. HOLLAND, JR. Assistant District Attorney
Before STONE, STEPHENS, and BLEICH (Pro Tempore), JJ. STEPHENS, J.
This criminal appeal arises from the 26th Judicial District Court,
Webster Parish, the Honorable Parker Self presiding. The defendant, Joseph
Alexander, was convicted of two counts of abuse of office and sentenced to
four years at hard labor, with all but one year suspended, on each count, to
be served concurrently. Alexander has appealed his convictions and
sentences. For the reasons set forth below, we affirm in part, reverse in part,
vacate the defendant’s concurrent sentences, and remand for resentencing.
FACTS
In 2017, the defendant, Joseph Alexander, was elected as the mayor of
Cotton Valley, Louisiana. Based on actions that he took during his term as
mayor, Alexander was charged with three counts of abuse of office. In a bill
of information filed on June 6, 2016, as amended on October 16, 2016, the
state alleged that Joseph Alexander, the elected mayor of the Town of
Cotton Valley, committed abuse of office in violation of La. R.S. 14:134.3
by:
Count 1: on February 25, 2017, intentionally using the authority of his office, both directly and indirectly, to compel and coerce Cullen PD Chief Rosetta Harris and Cullen PD Officer Chris Lauderdale to forego arresting him for the offense of possession of marijuana;
Count 2: on August 31, 2017, intentionally using the authority of his office, both directly and indirectly, to compel and coerce employees of an auto parts store to provide him with a battery for his private vehicle; and,
Count 3: on November 14, 2017, intentionally using the authority of his office, both directly and indirectly, to compel and coerce the Clerk of Cotton Valley, Michael Magee,1 to provide him with a $500 check for his personal travel.
1 In briefs, the parties refer to the town clerk as Michael McGee; however, his trial testimony indicates that his last name is spelled Magee. Alexander waived his right to a jury trial, and a bench trial was held
on May 31, 2019. The trial court granted defense counsel’s motion for
acquittal as to Count 2, and found Alexander guilty as charged on Counts 1
and 3.
On August 16, 2019, the trial court sentenced Alexander to four years
at hard labor, with all but one year suspended, followed by three years of
supervised probation,2 on each count, with the sentences to be served
concurrently. Defense counsel filed a motion to reconsider, arguing that
Alexander’s sentence was excessive and that the trial court failed to
adequately consider the mitigating factors. The trial court denied the motion
to reconsider without providing reasons. This appeal followed.
DISCUSSION
Sufficiency of the Evidence
In the defendant’s first two assignments of error, appellate counsel
argues that the evidence was insufficient to convict Alexander of either
Count 1 or Count 3 of abuse of office. The defense asserts that to “compel”
someone to do something requires some level of force exerted upon them or
overwhelming pressure. As to Count 1, the defense argues that Alexander
did not use his authority as mayor of Cotton Valley to compel or coerce
Chief Harris or Officer Lauderdale, both law enforcement officers of the
town of Cullen, to drop the charges against him. The defense emphasizes
Chief Harris’s testimony that she was not pressured to dismiss the charges,
and that Alexander did not mention that he was the mayor of Cotton Valley
other than by way of introduction. Further, Ofc. Lauderdale testified that he
2 The trial court imposed special conditions of probation, including a $1,000 fine, costs, and 20 hours of community service per month. 2 did not believe that Alexander was trying to get the charges dropped because
he was the mayor, but that he was trying to use their commonality of race as
a basis to “stick together” and “look out for each other.” The defense
contends that Chief Harris made the ultimate decision to use her discretion
to dismiss the charges, and that her decision was not based on anything that
Alexander told Ofc. Lauderdale or the chief.
As to Count 3, the defense argues that Alexander did not use his
authority as mayor to compel or coerce Magee, the town clerk, to write the
$500 check. The defense notes that Magee testified that he wrote the check
to avoid an argument with Alexander, and that he was neither forced nor
coerced into writing the check. The defense claims that despite the
acrimonious relationship between Alexander and Magee, bad blood is not
enough to constitute coercion. Also, the defense argues that the state failed
to prove that Alexander, on behalf of his nephew, was not entitled to the
funds. The defense notes that Alexander told the investigating officer that
the money was for the purchase of a used stove and refrigerator for the
community center, an acquisition that the town council had approved.
On the other hand, the state asserts that the evidence presented at trial
was sufficient to prove beyond a reasonable doubt that Alexander was guilty
of both counts of abuse of office. The state argues that as the mayor of
Cotton Valley, Alexander used his position of authority to compel or coerce
two Cullen police officers to forego arresting him for possession of
marijuana, and to compel or coerce the town clerk of Cotton Valley to
provide him with a $500 check for personal travel expenses. Noting that
credibility determinations are left to the sound discretion of the trier of fact,
the state claims that the trial court accepted the testimony of the officers and 3 the town clerk as credible and rejected Alexander’s version of the events as
unbelievable.
The standard of appellate review for a sufficiency of the evidence
claim 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 2001-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905,
124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Carter, 42,894 (La. App.
2 Cir. 1/9/08), 974 So. 2d 181, writ denied, 2008-0499 (La. 11/14/08), 996
So. 2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art.
821, does not provide the appellate court with a vehicle to substitute its own
appreciation of the evidence for that of the fact finder. State v. Pigford,
2005-0477 (La. 2/22/06), 922 So. 2d 517; State v. Dotie, 43,819 (La. App. 2
Cir. 1/14/09), 1 So. 3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So. 3d
297.
The Jackson standard is applicable in cases involving both direct and
circumstantial evidence. An appellate court reviewing the sufficiency of
evidence in such cases 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 inferred from the circumstances established by that evidence
must be sufficient for a rational trier of fact to conclude beyond a reasonable
doubt that the defendant was guilty of every essential element of the crime.
State v. Sutton, 436 So. 2d 471 (La. 1983); State v. Robinson, 50,643 (La.
4 App. 2 Cir. 6/22/16), 197 So. 3d 717, writ denied, 2016-1479 (La. 5/19/17),
221 So. 3d 78.
Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience. State v. Mingo, 51,647 (La.
App. 2 Cir. 9/27/17), 244 So. 3d 629, writ denied, 2017-1894 (La. 6/1/18),
243 So. 3d 1064. If a case rests essentially upon circumstantial evidence,
that evidence must exclude every reasonable hypothesis of innocence. La.
R.S. 15:438; State v. Mingo, supra. The appellate court reviews the
evidence in the light most favorable to the prosecution and determines
whether an alternative hypothesis is sufficiently reasonable that a rational
juror could not have found proof of guilt beyond a reasonable doubt. State
v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417; State v. Garner, 45,474
(La. App. 2 Cir. 8/18/10), 47 So. 3d 584, 587.
The appellate court does not assess the credibility of witnesses or
reweigh evidence. State v. Smith, 1994-3116 (La. 10/16/95), 661 So. 2d
442. A reviewing court accords great deference to the jury’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Casaday, 49,679 (La. App. 2 Cir. 2/27/15), 162 So. 3d 578, writ denied,
2015-0607 (La. 2/5/16), 186 So. 3d 1162.
Where 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.
State v. Crossley, 48,149 (La. App. 2 Cir. 6/26/13), 117 So. 3d 585, writ
denied, 2013-1798 (La. 2/14/14), 132 So. 3d 410; State v. Speed, 43,786 (La.
App. 2 Cir. 1/14/09), 2 So. 3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 5 So. 3d 299. In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the trier of
fact, is sufficient support for a requisite factual conclusion. State v. Johnson,
47,913 (La. App. 2 Cir. 4/10/13), 113 So. 3d 1209.
La. R.S. 14:134.3(A) sets forth the offense of abuse of office as
follows:
No public officer or public employee shall knowingly and intentionally use the authority of his office or position, directly or indirectly, to compel or coerce any person to provide the public officer, public employee or any other person with anything of apparent present or prospective value when the public officer or employee is not entitled by the nature of his office to the services sought or the object of his demand.
The term anything of value includes sex, money, or loss of simple
human dignity. State v. Seaton, 47,741 (La. App. 2 Cir. 4/10/13), 112 So. 3d
1011, writ denied, 2013-1056 (La. 11/15/13), 125 So. 3d 1102.
In State v. Seaton, supra, this Court found that the evidence was
sufficient to support the defendant’s convictions for forcible rape and abuse
of office. Regarding the abuse of office conviction, this Court noted that the
defendant, who was employed as the assistant chief administrative officer
for the City of Shreveport, came into contact with the victim through his job
duties in supervising the operation of shuttle buses at a public event. When
the victim requested to use a phone, the defendant did not offer to let her use
his phone. Instead, the defendant drove the victim to his office in a nearly
empty building, where she would be isolated and dependent on him, and he
sexually assaulted her. State v. Seaton, 112 So. 3d at 1020. This Court
found that the evidence was sufficient to show that the defendant
intentionally used the authority of his office to coerce the victim to provide
6 sex, a thing of value that he was not entitled to receive by the nature of his
office. Id.
In State v. Thomas, 2019-097 (La. App. 3 Cir. 10/23/19), 282 So. 3d
1124, the defendant pled guilty to abuse of office, and sufficiency of the
evidence was not at issue. In State v. Thomas, the defendant received
“sexual contact or intercourse” by using the authority of his position as a
duly commissioned police officer, on more than one occasion, over a victim
that was vulnerable due to her illegal activities.
See also In re Jackson, 2019-0164 (La. App. 1 Cir. 1/2/20), __ So. 3d
__, 2020 WL 42051 (in which the First Circuit upheld the Civil Service
Board’s finding that the termination of two police officers was in good faith
and for cause, even though the officers were acquitted of abuse of office; the
court determined that the appointing authority proved by a preponderance of
the evidence that the officers knowingly and intentionally used the authority
of their office to coerce the victim to provide sex to a third officer).
Count 1 – the Cullen Charges3
Officer Lauderdale, a part-time police officer with the Cullen Police
Department, testified that on February 25, 2017, he saw a car parked in the
park in Cullen. As Ofc. Lauderdale drove up, he observed the driver,
identified as Alexander, toss something inside the car. Ofc. Lauderdale then
got out of his vehicle and made contact with Alexander, who said that he
was waiting for his son’s girlfriend. Alexander did not want Ofc.
Lauderdale to look in the passenger seat area, but the officer walked around
Alexander’s car and saw a small plastic bag containing a green leafy
3 Because Alexander was convicted only of Counts 1 and 3, the facts surrounding Count 2 will not be discussed. 7 substance that appeared to be marijuana, in plain view on the floor. When
questioned about the substance, Alexander said that his son gave it to him to
bring to his girlfriend, but Alexander did not know what was in the bag.
Ofc. Lauderdale told Alexander that he suspected the substance was
marijuana, and that Alexander was going to be arrested. Ofc. Lauderdale
testified that he did not know Alexander, but noticed that his driver’s license
had a Cotton Valley address, so he called the Cotton Valley chief of police.
Chief Terry Brown told Ofc. Lauderdale that Alexander was the mayor of
Cotton Valley and the chief “didn’t want anything to do with it,” and to “do
what [he had] to do.” Ofc. Lauderdale placed Alexander under arrest, read
him his rights, placed him in the police car, and called to have Alexander’s
vehicle towed.4
At that point, Alexander told Ofc. Lauderdale that he was the mayor
of Cotton Valley and that Ofc. Lauderdale needed to call the Cullen mayor
and police chief. Ofc. Lauderdale told Alexander that he was not calling
anyone. Ofc. Lauderdale testified that Alexander told him that he was the
mayor “multiple times” during the ride to the police station. When they got
to the station, Ofc. Lauderdale let Alexander make a phone call, and
Alexander called the mayor of Cullen. Ofc. Lauderdale then called Cullen
Police Chief Rosetta Harris, and advised her of the situation. Chief Harris
and the mayor of Cullen then arrived at the station. Ofc. Lauderdale
overheard Alexander asking Chief Harris and the Cullen mayor to help him.
Ofc. Lauderdale testified that his impression was that “it wasn’t necessarily
4 This information was substantiated by the call and wrecker logs of the Springhill Police Department; Cullen does not have its own dispatcher.
8 about he was the mayor,” but that they needed to stick together because of
their race.5 Ofc. Lauderdale testified that before Chief Harris and the mayor
of Cullen arrived, Alexander’s relative, “Bey” Parish, arrived at the police
station to bail Alexander out of jail. Ofc. Lauderdale told them the amount
of the bond, $900, and “Bey” and Alexander offered to pay Ofc. Lauderdale
that amount for the charge to “go away.” However, Ofc. Lauderdale
refused, telling them, “We can’t do that. It don’t work like that.”
Ofc. Lauderdale testified that Chief Harris asked for his opinion on
what to do, but he told her to do what she wanted to do with the case. Chief
Harris told Ofc. Lauderdale that she was going to help Alexander and let
him go home. Ofc. Lauderdale stated that although he was not instructed on
what to do with the drugs he got out of Alexander’s vehicle, he destroyed
them since there was not going to be an arrest.
On cross-examination, Ofc. Lauderdale agreed that the mayor of
Cotton Valley has no authority over officers in the Cullen Police
Department. When asked if Alexander forced, compelled, or coerced him in
any way to forego arresting him, Ofc. Lauderdale’s response was “no.” Ofc.
Lauderdale testified that the decision to let Alexander go was left to Chief
Harris’ discretion, and not based on anything Alexander told Ofc.
Lauderdale.
Chief Harris testified that prior to February 25, 2017, she had never
met Alexander and did not know who he was. She stated that when she
arrived at the police station, Alexander introduced himself to her and told
her that he was the mayor of Cotton Valley. Chief Harris testified that
5 Ofc. Lauderdale, Alexander, Chief Harris, and the mayor of Cullen are African American. 9 Alexander apologized for “what he was caught with”6 and said that he would
not come back to Cullen. Chief Harris told Alexander that he had put her in
a “strange situation,” but that she was going to use officer discretion this
time and let him go. Chief Harris testified that the mayor of Cullen never
came to the police station. Also, Chief Harris stated that Alexander told her
that he was the mayor of Cotton Valley only one time. On cross-
examination, Chief Harris stated that she exercised her discretion, as well as
officer discretion, in deciding not to charge Alexander with a crime, and
when asked whether Alexander forced, compelled, or coerced her not to
charge him, she responded “no.” On redirect, Chief Harris noted that
Alexander was the only person they had caught with drugs in Cullen and
then let go if they promise not to come back.
Alexander did not testify at trial. However, the state introduced the
recorded statement Alexander made to Louisiana State Police investigators
during their investigation. In his interview, Alexander recalled the events of
February 25, 2017, and denied that the Ofc. Lauderdale found marijuana in
his car. Alexander stated that he was sitting in his car near the park when he
saw some people he knew. As he walked toward those people, he noticed
Ofc. Lauderdale looking inside his car. Alexander walked back, got into his
car, and started it. Ofc. Lauderdale approached and asked him for his
driver’s license and insurance card. Alexander claimed that as he reached in
the glove box for his paperwork, he dropped some of the papers on the floor.
As he reached down, he knocked the car out of gear and the car moved a
6 Officer Lauderdale’s description of the drugs he found in the passenger side floorboard of Alexander’s car to the state trooper investigating these charges was a “dime sack,” which is slang for a $10 bag of marijuana. 10 little bit. Alexander stated that he believed that Ofc. Lauderdale thought he
was trying to run over him and got angry. Alexander got out of the car as
instructed, and Ofc. Lauderdale arrested him for an open container violation
and resisting arrest. Alexander claimed that there was an empty bottle,
possibly a wine cooler, that his nephew had left behind in the car when he
borrowed it. Alexander stated that Ofc. Lauderdale never searched his car,
and denied that there had been any marijuana in the vehicle. Alexander
claimed that when Chief Harris arrived at the police station in Cullen, he
was able to convince her that he was not trying to do anything to Ofc.
Lauderdale, he had just knocked the car out of gear, and the charges against
him were dropped.
Sergeant Brian Driskill of the Louisiana State Police testified about
his interview with Alexander. According to Sgt. Driskill, in the interview,
Alexander admitted that he had marijuana in his car.7
Count 3 – the $500 Check
Michael Magee testified that he met Alexander while he was
campaigning for mayor, and in January of 2017, Alexander hired him as the
town clerk. As clerk, Magee was responsible for bookkeeping, paying bills,
and making deposits. Magee stated that the relationship between him and
Alexander soured toward the end of 2017. In late 2017, Magee resigned
from his job as town clerk.
Magee testified that on the day of a town council meeting in
November of 2017, Alexander told him that he needed $500 to go to
7 This testimony, however, contradicts the responses given by Alexander during the recorded interview.
11 Alabama8 to visit his sister. Magee was busy with something else at the
time, and despite having concerns, Magee wrote the check as requested from
the town’s general account. The check, presented at trial as Ex. 9-10, was
dated November 14, 2017, and was written to Alexander for $500, with its
memo line stating “travel expense.” Magee testified that there was very
little conversation between the mayor and him about it, and he issued the
check because, at that point in their relationship, he “was done with the
arguing and the accusations.”
When asked whether Alexander compelled or forced him to issue the
check, Magee stated, “He didn’t force me or compel me to do it other than
the fact I was not wanting to hear his mouth anymore if I said no.” Magee
noted that if he ever told Alexander “no,” there would be an argument, a
rampage, belittling, and name calling. Regarding the argumentative
atmosphere, Magee stated that Alexander had accused him of being racist
and noted that Alexander incorrectly believed that Magee was part of the
recall effort to remove him from office. Magee testified that the only reason
he issued the check to Alexander was to avoid an argument.
Magee testified regarding the normal protocol for payment or
reimbursement of travel expenses, which are required to be based on
documentation and the state rates, and noted that there was no
documentation to support the $500 check. Magee stated that he had
conversations about the check with the Cotton Valley chief of police,
Camille Pulzone,9 Stuart McMahen, and someone in the state auditor’s
8 The destination of Alexander’s intended destination was later corrected to Atlanta during Magee’s testimony. 9 According to Magee, Ms. Pulzone told him that it was “totally” wrong to write a check to the mayor for personal travel, but he wrote it anyway. When asked why he 12 office. Ms. Pulzone, who does accounting work for the town, and
McMahen, the town attorney, testified at trial regarding their conversations
with Magee.10
Regarding Alexander’s assertion that the funds were to pay for used
appliances for the community center, Magee stated that a month before the
$500 check was issued, Alexander asked him if the town could “pay off” his
loan for a stove and a refrigerator, which he could then donate to the
community center. Magee told Alexander that the town could not do that.11
In his recorded statement to police, Alexander noted that he believed
that Magee was part of the conspiracy to remove him from office, and that
there was a lot of tension between them. Alexander denied asking Magee
for $500 to take a personal trip. Instead, Alexander claimed that the check
was supposed to have been issued to his nephew, Robert Willis, for the
purchase of a stove and a refrigerator. Alexander claimed that he told
Magee that the community center needed a stove and a refrigerator, and that
his nephew had a stove and a refrigerator for sale for $500. Magee agreed to
the purchase and put the check in an envelope. Alexander and Willis then
went to the nephew’s bank to cash the check. However, when Alexander
wrote the check despite advice to the contrary, Magee stated, “[the mayor] should’ve never asked me for it.” 10 McMahen testified that Magee told him that the check was issued to Alexander for personal travel. McMahen asked Alexander about the check; the mayor denied that the check was for personal travel. However, Alexander did not offer any other explanation for the check. Ms. Pulzone testified that in 2017, Magee called her about a $500 check for personal travel for the mayor. Magee was concerned about whether he should write the check. Magee called Ms. Pulzone at the time he was writing the check, and told her that the mayor told him to log it as travel expenses. Ms. Pulzone advised Magee to code the check to “ask my accountant” and to talk to the state auditor about it because she did not believe the mayor was allowed to use money for personal travel. 11 McMahen testified that at some point, the town council approved the purchase of a stove and refrigerator, and Alexander brought up the fact that the town had purchased the equipment. 13 and Willis realized that the check had Alexander’s name on it, they went to
his bank to deposit the check. Alexander stated that he gave $200 to Willis
and “borrowed” the additional $300 from the proceeds so Alexander would
have money in his pocket for his trip. Alexander stated that he did not get a
receipt for the stove or the refrigerator, but claimed that the appliances were
put in the community center a couple of days before he received the check.
When asked why the check had “travel expense” in the memo line,
Alexander stated that Magee had “set him up.”
Detective Rod Johnson of the Louisiana State Police testified that he
went to the Cotton Valley community center after Alexander’s arrest to
photograph the stove and the refrigerator. Det. Johnson stated that the
refrigerator was not there when he arrived, but while he was there, city
workers brought one in on a truck. He noted that both appliances were old
with rust spots. It was Det. Johnson’s impression that the only reason the
refrigerator showed up was because he was there taking photographs.
Sergeant Driskill testified that in the recorded interview, Alexander
eventually admitted that the $500 check was for a personal trip.12 When
asked how the business about the stove and refrigerator came up, Sgt.
Driskill’s response was:
Great question. My opinion for that is that you’ve got two stories that Mr. Alexander combined to make one, and I think the actual truth is [what] I perceived [to be] the truth during the investigation [which is] that there was a check given for $500 and that it was for a trip, and there was also a stove and a refrigerator, which in my opinion, because of the investigation, was an attempt to cover up why he had the $500. And I think you got two stories commingled.
12 This testimony is contradicted by the actual responses given by Alexander during his interview with Sgt. Driskill.
14 According to Sgt. Driskill, a week after the interview, Alexander provided
him with a receipt prepared by Robert Willis13 for the stove and the
refrigerator. The handwritten receipt, presented at trial as Ex. 15, is dated
November 9, 2017, which is before the date of the $500 check.14
The defense presented the testimony of Donald Shirley, a pastor in
Cotton Valley who volunteered with the town in 2017 after Alexander was
elected as mayor. Shirley described Alexander as authoritative, but not
argumentative or abusive. He testified that Alexander never argued with or
berated Magee, but he had heard Magee make demeaning statements toward
Alexander, noting that Magee was often in disagreement with Alexander’s
policies.
In finding Alexander guilty, the trial court issued a written opinion
setting forth the facts and the court’s credibility determinations. As to Count
1, the trial court noted that it found the testimony of Ofc. Lauderdale to be
“extremely credible” and Alexander’s version of the events to be
“unbelievable.” Considering that Alexander’s phone call following his
arrest was to the mayor of Cullen and that Chief Harris indicated that
Alexander “placed her in a difficult position,” the trial court stated that it
was satisfied that Alexander had “specific intent to indirectly coerce or
compel [Chief Harris] to utilize her discretion to provide him with a thing of
value to which he was not entitled.”
13 Sergeant Driskill noted that he also interviewed Willis, and that the information Willis gave was not consistent with the information Alexander provided. Willis could not be located at the time of trial. 14 The receipt states, “I have a refrigerator and stove that is about 6 years old. It’s a side by side refrigerator and the stove is a self-cleaning stove. Both are white. I will charge the Town of Cotton Valley $500.00 for both… Please keep and use this as your receipt.” 15 In order to convict Alexander of abuse of office, however, the state
was required to prove that Alexander knowingly and intentionally used the
authority of his office, directly or indirectly, to compel or coerce another
person to provide him with anything of apparent present or prospective
value, to which he was not entitled to receive by the nature of his office. As
the mayor of Cotton Valley, Alexander was a public officer at the time of the
alleged crime. The testimony and evidence as to Alexander’s actions in
Count 1, together with his lack of candor regarding the incident, support the
trial court’s finding that Alexander had the requisite intent. Furthermore, the
dismissal of criminal charges constitutes a thing of value that Alexander was
not entitled to receive by the nature of his office.
There is no proof, however, that Alexander, while he made his status
as mayor of Cotton Valley known to Ofc. Lauderdale and Chief Harris, used
the authority of his position as mayor of a neighboring small town to obtain
dismissal of the charges in Cullen, a town in which he had no jurisdiction,
authority, “pull,” or power. While Ofc. Lauderdale did testify that he felt
that Alexander was attempting to use an “us vs. them” race mentality to
influence the police chief’s decision (which, if true, this would not have
been the mayor using the authority of his political office to pressure the
Cullen officers), there is no testimony that Chief Harris felt forced, coerced
or compelled by Alexander to drop the charges. In fact, the evidence is to
the contrary. Chief Harris was adamant in her testimony that the decision to
dismiss the charges was made in the exercise of her discretion as an officer,
not because of anything that Alexander said or did. Because an essential
element of proof is lacking as to Count 1, i.e., that the dismissal of the
charges against Alexander was obtained, directly or indirectly by a knowing 16 and intentional use by Alexander of his authority as mayor of Cotton Valley,
there is insufficient evidence to support this conviction, which we hereby
reverse.
As to Count 3, the trial court emphasized the credibility of the town
clerk, Michael Magee, which was supported by: the receipt for the
refrigerator and the stove, dated prior to the date of the $500 check; the
refrigerator’s absence from the community center when the investigator
showed up to take pictures; and, the discussions Magee had with several
individuals contemporaneously with his issuance of the check. Based upon
the toxic work atmosphere that had developed between Alexander and
Magee, the trial court stated that it was satisfied that Alexander “directly
coerced or compelled Magee to provide him with a thing of value to which
he was not entitled.” The dynamics of the supervising employer/subordinate
employee relationship inherently present in this case further support the trial
court’s conclusion that Alexander coerced or compelled Magee to give him
the $500 check, as does the fact that Alexander’s explanation for the purpose
of the check metamorphosed from reimbursement for a personal trip to
payment for used appliances for the town community center. There is
sufficient evidence from which the trial court could have found that
Alexander committed abuse of office as charged in Count 3.
Excessiveness of Sentence
The third assignment of error asserted by appellate counsel is that the
concurrent sentences of four years at hard labor, with all but one year
suspended, and three years of supervised probation, are excessive. We will
pretermit a discussion of this assignment of error as unnecessary.
17 Inasmuch as this Court is reversing Alexander’s conviction as to
Count 1, the sentence imposed on that count will be vacated. In sentencing
Alexander, the trial court imposed four-year sentences, with three years
suspended and one year to be served imprisoned, on the two counts of abuse
of office. Because these sentences were not only identical but were imposed
to be served concurrently, this Court can safely assume that the trial court
considered the two convictions together in fashioning its sentence. Rather
than making any conclusions about how the trial court would have sentenced
Alexander on a single conviction of abuse of office, we will vacate his
sentence on Count 3, not due to a finding of excessiveness, but for
reconsideration and resentencing by the trial court in light of the foregoing.
See, La. C. Cr. P. art. 881.4(A).
CONCLUSION
The conviction of the defendant, Joseph Alexander, as to Count 1 is
reversed, and his concurrent sentences are vacated. The defendant’s
conviction as to Count 3 is affirmed. This matter is remanded to the trial
court for resentencing as to Count 3.
CONVICTION REVERSED AND CONCURRENT SENTENCES VACATED AS TO COUNT 1; CONVICTION AFFIRMED AND REMANDED FOR RESENTENCING AS TO COUNT 3