State Of Louisiana v. Thelma Louise Brown

• Court: Louisiana Court of Appeal
• Decided: August 5, 2020
• Docket: 2019KA1462
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 KA 1462

VERSUS

THELMA LOUISE BROWN

rAUG 0 5 2020 j Judgment Rendered:

a14) On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 607, 426

Honorable Martin E. Coady, Judge Presiding

Warren L. Montgomery Attorneys for Appellee,

District Attorney State of Louisiana J. Bryant Clark, Jr. Assistant District Attorney Covington, LA

Gwendolyn K. Brown Attorney for Defendant -Appellant, Baton Rouge, LA Thelma Louise Brown

BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ. HIGGINBOTHAM, J.

The defendant, Thelma Louise Brown, was charged by bill of information

with failure to register and notify as a sex offender, second or subsequent offense, a

violation of La. R.S. 15: 542. 1. 2. She pled not guilty and, following a jury trial, was

found guilty as charged. The defendant was sentenced to five years imprisonment

without benefit of parole, probation, or suspension of sentence. The defendant now

appeals, designating two assignments of error.

FACTS

Deputy Angelina Cook, with the St. Tammany Parish Sheriff' s Office sex

offender registry, testified at trial that one of the registrants she monitored was the

defendant, a convicted sex offender who had been released from j ail in April of 2018.

According to Deputy Cook, the defendant came to her office on July 6, 2018, to fill

out a change of address form, as required by law. The defendant indicated that she

was relocating from a West Spruce Street address in Lacombe to the new address of

26321 Highway 190 in Lacombe. The defendant was given until July 27, 2018, to

return to Deputy Cook with an updated Louisiana State I.D. and a money order to

complete the community notifications that are mailed out. Deputy Cook indicated

this was not the first time the defendant had failed to register as a sex offender)

On or around July 19, 2018, the defendant called Deputy Cook and told her

that her supervised parole was ending shortly and that she was planning to complete

a change of address form for a new address at 60207 Highway 434 in Lacombe. The

defendant, however, never went to Deputy Cook' s office to fill out a change of

address form. On July 27, 2018, the defendant called Deputy Cook at her office and

indicated that she had been living at the 60207 Highway 434 address. Deputy Cook

recorded these last several phone calls between her and the defendant because she

1 At trial, the State and defense counsel stipulated that the defendant was a convicted sex offender and " was required to register as a convicted sex offender in accordance with law at the time of the date of offense on the bill of information specifically in July of 2018." They further stipulated the defendant had been convicted twice of failing to register as a convicted sex offender.

2 felt the defendant had been in violation of the law for failing to inform her in person

and within three business days that she had changed her address.

Deputy Ryan Eberts, with the St. Tammany Parish Sheriffs Office, was

tasked with confirming the addresses of sex offenders. On July 13, 20 18, Deputy

Eberts went to the trailer at the 26321 Highway 190 location to confirm the

defendant was living there. The trailer was vacant with no power. Deputy Eberts

then went to 60207 Highway 434 address, also known as the Batiste apartments, to

check on other sex offenders. There were several portable buildings or apartments

at this address where the sex offenders lived. Deputy Eberts found the defendant

there.

At a later date, Deputy Cook contacted Deputy Eberts by email and asked for

a written statement from him about this occurrence. Deputy Eberts sent Deputy

Cook an email on July 25, 2018. The email indicated that Deputy Eberts came into

contact with the defendant on July 13 at the Batiste apartments at 60207 Highway

434. Deputy Eberts wrote: " Brown stated she was in the process of changing her

address and provided what appeared to be a form for change of address. DFC Eberts

notated this discrepancy on the form."

The defendant testified at trial that she had twice been convicted of failing to

register as a sex offender. The defendant indicated that while she had provided

Deputy Cook with the 26321 Highway 190 address as the place she was living, she

was not living there. The defendant explained that she had made friends at the 60207

Highway 434 address and felt like she belonged.

ASSIGNMENT OF ERROR NO. I

In her first assignment of error, the defendant argues the evidence was

insufficient to support the conviction. Specifically, the defendant contends that the

facts adduced at trial were insufficient to show she engaged in acts or omissions that

3 meet the definition of " failure to notify the authorities of a change of address,

residence, or other required registration information."

A conviction based on insufficient evidence cannot stand as it violates Due

Process. See U.S. Const. amend. XIV; La. Const. art. 1, § 2. The standard of review

for the sufficiency of the evidence to uphold a conviction is whether or not, 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 beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560

1979). See La. Code Crim. P. art. 821( B); State v. Ordodi, 2006- 0207 ( La.

11/ 29/ 06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in

Article 821, is an objective standard for testing the overall evidence, both direct and

circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.

R.S. 15: 438 provides that the factfinder must be satisfied the overall evidence

excludes every reasonable hypothesis of innocence. State v. Patorno, 2001- 2585

La. App. 1st Cir. 6/ 21/ 02), 822 So. 2d 141, 144.

The defendant was charged with failure of a registered sex offender to notify

the proper authorities of a change of address, residence, or other required registration

information ( second or subsequent offense). Louisiana Revised Statutes 15: 542. 1. 2

provides in pertinent part:

A. Unless an earlier time period is otherwise specified in the provisions of this Chapter, those persons required to register pursuant to the provisions of this Chapter shall appear in person at the sheriffs office in the parish of residence, or the police department in the case of a municipality with a population in excess of three hundred thousand, where the offender is currently registered to update information within three business days of establishing a new or additional physical residential address or of changes in information previously provided when any of the following occur:

1) The offender changes his place of residence or establishes a new or additional residence.

The defendant was not living at the 26321 Highway 190 address, which she

had provided to Deputy Cook. Checking on other sex offenders at the 60207

M Highway 434 address, Deputy Eberts encountered the defendant there. The

defendant suggests in brief that, while at " first blush," these facts suggest a violation

of her registration requirements, the record and evidence as a whole disputes this

conclusion. The defendant argues in brief that she was not living at the 60207

Highway 434 address but was only temporarily staying there. The defendant

suggests she was awaiting the availability of her permanent address at 26321

Highway 190, which was also the address she provided to Deputy Cook.

According to the defendant in brief, she made arrangements to live in the

trailer at the 26321 Highway 190 location and had even spent several days cleaning

up the trailer. The defendant suggests she thought she was in compliance because

she saw Deputy Cook on July 6, 2018, wherein she completed the change of address

form. During the next two weeks, while the defendant was still at the 60207

Highway 434 address, Deputy Cook did not know of the defendant' s whereabouts.

The defendant suggests this was insufficient to prove a violation because she did not

establish a new address, pursuant to La. R.S. 15: 542. 1. 2( A)( 1), but instead was

staying only temporarily at the apartment at the 60207 Highway 434 address.

The parties at trial stipulated that the defendant was required to register as a

sex offender and that she had been twice convicted of failure to register or notify as

a sex offender. The only issue, thus, was whether the defendant failed to notify the

proper authorities that she had changed her place of residence or established a new

or additional residence.

The defendant had been living at 25650 West Spruce Street. The defendant

was evicted from this address and, on July 6, 2018, she completed a change of

address form, which indicated that her new address was 26321 Highway 190 in

Lacombe. The effective date of the move was actually July 4, 2018. The defendant

never moved to the 26321 Highway 190 address, but instead was found living in an

apartment at 60207 Highway 434. The defendant never provided any authority a

5 change of address form regarding the 60207 Highway 434 location. Accordingly,

the jury correctly found that the defendant violated La. R.S. 15: 542. 1. 2( A)( 1), which

required that within three business days of her having moved to 60207 Highway 434,

she was required to fill out a change of address form with the 60207 Highway 434

address.

The defendant' s assertions notwithstanding, the documentary and testimonial

evidence adduced at trial established that the defendant had been living at the 60207

Highway 434 address with no intention of leaving, and that she had no intention of

moving to 26321 Highway 190, the address provided on the change of address form.

The only reason the defendant was even located was that Deputy Eberts saw her at

the 60207 Highway 434 address while he was there checking on other registered sex

offenders. Before arriving at the 60207 Highway 434 address, Deputy Eberts had

gone to the 26321 Highway 190 address to make contact with the defendant.

According to Deputy Eberts, no one answered the trailer door. Further, branches

had to be cleared away to access the front door, vegetation was growing around the

trailer, and there was no power running to the trailer.

Agent Alicia Hemingway, with the Division of Probation and Parole, testified

that she supervised the defendant, who had been on parole from about April 13, 2018

to July 25, 2018. The defendant was required to wear an ankle monitor. The ankle

monitor provided a GPS location of the defendant. Agent Hemingway testified that

on July 1 and July 2 of 2018, the defendant was at her approved address on West Spruce Street. From July 3 to July 5 of 2018, the defendant was at the 60207

Highway 434 address. Then for about two weeks, the defendant' s whereabouts were

unknown because she had not recharged her ankle monitor. It was recharged on July

19, 2018, and indicated the defendant was at the 60207 Highway 434 address.

According to Agent Hemingway, the defendant had not filled out a change of address

form with her. The defendant had never received approval from Probation and

R Parole to move to the 60207 Highway 434 address. Further, Probation and Parole

was unaware of the 26321 Highway 190 address.

The defendant indicated at trial that she knew she had an obligation to charge

her ankle monitor. The defendant thought she had not recharged the ankle monitor

for only a couple of days. When asked on direct examination why she did not go

live at the 26321 Highway 190 address, the defendant indicated that she had

connected with friends when she was at apartment " H" ( at the 60207 Highway 434

address). She had not had friends for a while and " it just felt nice to be somewhere

where I felt like I belonged." When she moved from apartment " H" to apartment

A" ( at the same 60207 Highway 434 address), the defendant testified she felt like

she was surrounded by people that would accept her and be friends.

Based on the foregoing, a rational juror could have concluded the defendant

did not register the 60207 Highway 434 address that she was living at with the St.

Tammany Parish Sheriff's Office sex offender registry and, as such, failed to comply

with La. R.S. 15: 542. 1. 2( A)( 1). It is the trier of fact who makes credibility

determinations and may, within the bounds of rationality, accept or reject the

testimony of any witness; thus, a reviewing court may impinge on the fact finder' s

discretion " only to the extent necessary to guarantee the fundamental protection of

due process of law." State v. Tate, 2001- 1658 ( La. 5/ 20/ 03), 851 So. 2d 921, 929,

cert. denied, 541 U. S. 905, 124 S. Ct. 1604, 158 L.Ed.2d 248 ( 2004). See State v.

Weary, 2003- 3067 ( La. 4/ 24/ 06), 931 So.2d 297, 311- 12, cert. denied, 549 U.S.

1062, 127 S. Ct. 682, 166 L.Ed.2d 531 ( 2006).

The trier of fact' s determination of the weight to be given evidence is not

subject to appellate review. An appellate court will not reweigh the evidence to

overturn a factfinder' s determination of guilt. State v. Taylor, 97- 2261 ( La. App.

1 st Cir. 9/ 25/ 98), 721 So.2d 929, 932. We are constitutionally precluded from acting

as a " thirteenth juror" in assessing what weight to give evidence in criminal cases.

7 State v. Mitchell, 99- 3342 (La. 10/ 17/ 00), 772 So. 2d 78, 83. The fact that the record

contains evidence which conflicts with the testimony accepted by a trier of fact does

not render the evidence accepted by the trier of fact insufficient. State v. Piper,

2018- 1796 ( La. App. 1st Cir. 9/ 27/ 19), 287 So. 3d 13, 25. In the absence of internal

contradiction or irreconcilable conflict with the physical evidence, one witness' s

testimony, if believed by the trier of fact, is sufficient to support a factual conclusion.

State v. Higgins, 2003- 1980 ( La. 4/ 1/ 05), 898 So. 2d 1219, 1226, cert. denied, 546

U.S. 883, 126 S. Ct. 182, 163 L.Ed.2d 187 ( 2005).

After a thorough review of the record, we find the evidence supports the jury' s

verdict. We are convinced that viewing the evidence in the light most favorable to

the State, any rational trier of fact could have found beyond a reasonable doubt, and

to the exclusion of every reasonable hypothesis of innocence, that the defendant was

See guilty of failure to register as a sex offender, second or subsequent offense.

State v. Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d 417, 418 ( per curiam).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In her second assignment of error, the defendant argues the trial court erred in

restricting her right to present a defense.

According to the defendant, the trial court improperly excluded relevant

evidence regarding her diminished capacity. The defendant notes the trial court

granted the State' s pretrial motion in limine, which sought to exclude any mention

that the defendant suffered from bipolar disorder or any other mental disease or

defect. The defendant suggests that her mental deficiencies were relevant to her

ability to appreciate the responsibilities imposed by the registration requirements.

The defendant continues in brief that the fact of her deficiencies did not eliminate

the State' s burden to prove that she possessed the requisite intent to commit the

charged conduct.

8 The defendant' s assertions are groundless. The defendant pled not guilty to

the charged offense, rather than not guilty and not guilty by reasons of insanity. It

was for this reason the State filed the motion in limine in the first instance. It is well-

settled that when a defendant is tried upon a plea of not guilty, evidence of insanity

or mental defect at the time of the offense shall not be admissible. La. Code Crim.

P. art. 651; State v. Holmes, 2006- 2988 ( La. 12/ 2/ 08), 5 So. 3d 42, 74, cert. denied,

558 U.S. 932, 130 S. Ct. 70, 175 L.Ed.2d 233 ( 2009). Thus, Louisiana does not

recognize the doctrine of diminished capacity absent a dual plea of not guilty and

not guilty by reason of insanity. State v. Deboue, 552 So. 2d 355, 366 ( La. 1989),

cert. denied, 498 U.S. 881, 111 S. Ct. 215, 112 L.Ed.2d 174 ( 1990). See State v.

Stewart, 93- 0708 ( La. App. 1st Cir. 3/ 11/ 94), 633 So. 2d 925, 934, writ denied, 94-

0860 ( La. 9/ 16/ 94), 642 So. 2d 189.

The defendant also suggests her deficiencies did not eliminate the State' s

burden to prove intent. The crime of failure to register as a sex offender is a general

intent crime. See State v. Lomas, 2014- 1300 ( La. App. 1st Cir. 3/ 9/ 15), 2015 WL

1019529, at * 3. In general intent crimes, the criminal intent necessary to sustain a

conviction is established by the very doing of the proscribed act. State v. Williams,

2003- 3514 ( La. 12/ 13/ 04), 893 So. 2d 7, 16. General criminal intent exists when the

circumstances indicate that the offender, in the ordinary course of human experience,

must have adverted to the prescribed criminal consequences as reasonably certain to

result from his act or failure to act. La. R.S. 14: 10( 2). As set out in the first

assignment of error, the State clearly established the defendant knew she was

required to register, yet failed to act accordingly. See State v. Dominick, 2016- 733

La. App. 5th Cir. 5/ 17/ 17), 222 So. 3d 956, 961- 63 ( finding meritless defendant' s

argument that his homelessness, poverty, and mental illness hampered his ability to

understand what was required of him regarding registration requirements for a

convicted sex offender). See also State v. Cook, 2016- 1518 ( La. 5/ 3/ 17), 226 So. 3d

9 387 ( per curiam) ( finding that even persons who are found not guilty of a sex offense

by reason of insanity are nevertheless subject to the sex offender registration and

notification requirements).

Based on the foregoing, the trial court did not restrict the defendant' s right to

present a defense. Accordingly, this assignment of error is without merit.

SENTENCING ERROR

Louisiana Revised Statute 15: 542. 1. 4( A)( 2) provides that upon second or

subsequent convictions for failure to register and notify as a sex offender, the

offender shall be fined three thousand dollars and imprisoned with hard labor for not

less than five years nor more than twenty years without benefit of parole, probation,

or suspension of sentence. The trial court did not impose the mandatory three

thousand dollar fine under La. R.S. 15: 542. 1. 4( A)(2). While the sentence imposed

is illegally lenient, it is not inherently prejudicial. Further, the sentencing error was

not raised by the State in either the trial court or on appeal. Therefore, we decline

to correct the illegally lenient sentence. See State v. Price, 2005- 2514 ( La. App. 1 st

Cir. 12/ 28/ 06), 952 So. 2d 112 ( en banc), writ denied, 2007- 0130 ( La. 2/ 22/ 08), 976

So. 2d 1277. Additionally, the minutes indicate that the sentence is at hard labor, but

in the sentencing transcript, the trial court failed to provide that defendant' s sentence

be served with hard labor.2 Accordingly, we amend the defendant' s sentence to

reflect that it be served at hard labor. As amended, the sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE COMMITMENT ORDER, AND FOR TRANSMISSION OF THE AMENDED RECORD TO THE DEPARTMENT OF CORRECTIONS.

2 Generally, when there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983). 10